# Zie Kone v. Department of the Navy

> Merit Systems Protection Board · July 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10464360

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** July 3, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10464360

## How later opinions describe it (automated extraction)

- establishing the general reprisal standard

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ZIE KONE, DOCKET NUMBER
Appellant, PH-0752-18-0348-I-1

v.

DEPARTMENT OF THE NAVY, DATE: July 3, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brian Deinhart , Esquire, Albany, New York, for the appellant.

Richard Dale , Newport, Rhode Island, for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to correct the legal standards for evaluating the charge and the
appellant’s affirmative defense of reprisal for his prior Board appeals, we
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).

BACKGROUND
¶2 The appellant, a Scientist, previously filed two Board appeals concerning
adverse actions taken against him. Kone v. Department of the Navy, MSPB
Docket No. PH-0752-13-0217-I-3, Final Order (Feb. 27, 2015) (0217 Final
Order). The appeals were joined for processing and the Board issued a Final
Order reversing the agency’s suspension and reducing the removal to a 30-day
suspension. Id.; Kone v. Department of the Navy, MSPB Docket Nos.
PH-0752-13-0217-I-3, PH-0752-13-0413-I-2, Initial Decision at 1 (May 27,
2014). The administrative judge found, and the parties do not dispute, that the
individuals involved in the prior actions did not play a role in the removal at issue
in the instant appeal. Kone v. Department of the Navy, MSPB Docket No.
PH-0752-18-0348-I-1, Initial Appeal File (IAF), Tab 40, Initial Decision (ID)
at 9-10.
¶3 In April 2017, the appellant requested leave under the Family and Medical
Leave Act (FMLA), which the agency approved. IAF, Tab 4 at 12, Tab 28
3

at 53-55. The appellant exhausted his 480 hours of FMLA-protected leave in
July 2017. IAF, Tab 28 at 53-55. The appellant was then absent from work for
39 consecutive days, from January 9 through March 8, 2018. Id. at 26-27, 55.
On some of the days he was absent, the appellant texted his first-level supervisor
to let him know he would not be in the office that day for various reasons. IAF,
Tab 14 at 16-29, Tab 15 at 4-17. For example, from early- to mid-January 2018,
the appellant stated he was “not well” or “ill.” IAF, Tab 14 at 16-20. Beginning
on January 17, 2018, he indicated he was seeking treatment at a clinic, and later a
hospital. Id. at 21, 25, 27. Ultimately, in early February 2018, he referred to
being scheduled for, and having, unidentified “procedures.” IAF, Tab 15 at 4-8.
Later that month through April 2018, he indicated he was suffering from a
“relapse” or relapses. Id. at 6-8, 12. On at least six different occasions, the
appellant’s supervisor texted back that the appellant was absent without leave
(AWOL). IAF, Tab 14 at 18-19, 22, Tab 15 at 6, 9, 11, 13, 16.
¶4 On February 1, 2018, the agency issued a letter to the appellant that
informed him that he had been absent since January 9, 2018, he was being
designated as AWOL, and if he did not return to work by February 9, 2018, his
removal would be proposed. IAF, Tab 4 at 28. The appellant did not respond to
the February 1, 2018 letter and did not return to work. IAF, Tab 28 at 27, 55. On
March 18, 2018, the appellant’s second-level supervisor proposed his removal
based on 39 specifications of AWOL, which concerned the appellant’s absence on
January 2, 2018, and from January 9 through March 8, 2018. IAF, Tab 4
at 22-27. After the appellant failed to reply, the agency removed him, effective
May 7, 2018. Id. at 12-15.
¶5 The appellant timely filed an appeal to the Board and requested a hearing.
IAF, Tab 1 at 2. He did not dispute that he was absent during the period at issue,
but rather argued that some or all of this absence was protected under the FMLA.
Id. at 6. He raised the affirmative defense of reprisal for his prior Board appeals.
Id. Following a hearing, the administrative judge issued an initial decision
4

sustaining the removal action. ID at 1. Although she did not sustain the
January 2, 2018 specification, she sustained the remaining 39 specifications. 2 ID
at 4, 9. The administrative judge found that the appellant failed to prove his
claim that the agency violated his rights under FMLA because he had already
exhausted all the FMLA-protected leave to which he was entitled for that
12-month period. ID at 5. She also found that the appellant had not shown that
his prior Board appeals were a motivating factor in the removal. ID at 13. She
further found that the agency proved a nexus between the appellant’s misconduct
and the efficiency of the service, and deferred to the deciding official’s penalty
determination. ID at 14-16.
¶6 The appellant has timely filed a petition for review. PFR File, Tab 1. The
agency has filed a response, to which the appellant has replied. PFR File,
Tabs 5-6. 3

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly sustained the AWOL charge but applied the
incorrect burden to the related FMLA claim.
¶7 On review, the appellant does not dispute the administrative judge’s finding
that he was AWOL as charged. We see no reason to disturb this finding. ID
at 2-9. However, we modify the administrative judge’s finding that the agency
proved its AWOL charge to apply the correct standard. To prove an AWOL
charge, an agency must establish that an employee was absent and either his
absence was not authorized or his request for leave was properly denied. Little v.
Department of Transportation, 112 M.S.P.R. 224, ¶ 6 (2009); Boscoe v.
2
As observed by the administrative judge, although there are 39 total specifications,
there are two specifications 20 itemized. IAF, Tab 4 at 23; ID at 2 n.2. Thus, there are
40 total specifications. IAF, Tab 4 at 23-24; ID at 2 n.2.
3
The appellant’s reply was initially due on or before December 31, 2018, but the filing
deadline was extended due to the partial Government shutdown from December 22,
2018, through January 25, 2019. Thus, his reply was timely. We therefore find it
unnecessary to address his motion seeking to waive the time limit for his reply. PFR
File, Tab 7.
5

Department of Agriculture, 54 M.S.P.R. 315, 325 (1992). Thus, when FMLA is
implicated relative to an AWOL charge, the agency, not the appellant, must prove
that it complied with the FMLA as part of its overall burden of proving the
AWOL charge. Fairley v. U.S. Postal Service, 82 M.S.P.R. 588, 590-91 (1999).
Here, however, the administrative judge improperly shifted the burden of proof to
the appellant to prove his FMLA claim. ID at 5.
¶8 The FMLA allows an employee to take up to 12 weeks of leave per year,
paid or unpaid, for various purposes, including his own serious health condition
that renders him unable to perform the duties of his position. See 5 U.S.C.
§ 6382(a)(1)(D); Dias v. Department of Veterans Affairs, 102 M.S.P.R. 53, ¶ 5
(2006), aff’d per curiam, 223 F. App’x 986 (Fed. Cir. 2007); 5 C.F.R.
§ 630.1203(a)(4). The 12-month leave period “begins on the date an employee
first takes leave [under the FMLA] and continues for 12 months” and an
employee is not entitled to additional leave under the FMLA “until the previous
12-month period ends.” 5 C.F.R. § 630.1203(c).
¶9 The appellant was absent from work for 39 consecutive days, from
January 9 through March 8, 2018. IAF, Tab 28 at 26-27, 55. On March 14 and
April 3, 2018, the appellant indicated that his doctors would be submitting FMLA
paperwork to cover the illnesses he had been suffering since January 2018. IAF,
Tab 15 at 8, 12. In response, his first-line supervisor informed him that he could
not invoke FMLA again until 12 months had passed since he last invoked FMLA
beginning on April 11, 2017, and told him to contact human resources. IAF,
Tab 15 at 13-14, 16, Tab 28 at 20, 53. Thus, the appellant presented sufficient
evidence to trigger consideration of his absences under the FMLA and the agency
has the burden of proving it properly denied him FMLA leave in taking the
leave-based action against him. Fairley, 82 M.S.P.R. at 591.
¶10 The administrative judge found, and the appellant does not dispute, that he
had invoked FMLA coverage beginning April 11, 2017, and exhausted his
480 hours of FMLA-protected leave on July 17, 2017. ID at 5. Thus, she found
6

that the appellant was not eligible for FMLA coverage again until April 11, 2018,
and that all of the instances of AWOL on which his removal was based occurred
prior to this date. Id. We agree. The agency submitted evidence and argument to
prove that the appellant had exhausted his FMLA-protected leave and was not
eligible to invoke it again until April 2018. For example, a Human Resources
Specialist testified that the appellant used FMLA-protected leave from April 11,
2017, to July 17, 2017, and that he would not have been able to invoke it again
until a 12-month period had passed from the date he first invoked it, i.e.,
April 11, 2018. Hearing Transcript (HT) at 171-72, 174 (testimony of the Human
Resources Specialist). The agency also submitted the appellant’s leave records
which documented his FMLA-protected leave usage and exhaustion in 2017.
IAF, Tab 28 at 20-22, 55. Thus, as the administrative judge correctly found, the
appellant was not entitled to FMLA-protected leave while he was AWOL from
January 9 through March 8, 2018. ID at 4-5. Therefore, the agency met its
burden of showing that it complied with the FMLA as part of its overall burden of
proving the AWOL charge, and the administrative judge correctly sustained the
charge. 4

4
On review, the appellant states that the administrative judge did not consider a prior
miscalculation of his FMLA usage in 2016, which he argues is evidence of his first-line
supervisor’s bias. PFR File, Tab 1 at 7-8. He argues that the Human Resources
Specialist testified that the appellant had more FMLA time remaining but his supervisor
designated it AWOL instead. Id. at 7. However, this is not an accurate representation
of the testimony. The Human Resources Specialist only testified that the appellant took
FMLA-protected leave and regarding when such leave was exhausted in 2016 and 2017.
HT at 171-72 (testimony of the Human Resources Specialist). Moreover, the
administrative judge addressed the appellant’s use of FMLA-protected leave in 2016 in
the initial decision and detailed that the 2016 miscalculation was corrected and the
appellant was allowed to utilize his remaining hours of FMLA leave. ID at 5. The
appellant does not dispute the administrative judge’s findings regarding his FMLA
usage and exhaustion in 2017 as it relates to his AWOL charge.
7

The appellant abandoned or waived his affirmative defenses of disability
discrimination and retaliation for FMLA and equal employment opportunity
(EEO) activity.
¶11 Before the administrative judge, the appellant raised the affirmative defense
of retaliation for FMLA activity. IAF, Tab 19 at 4 . He also suggested that his
removal was the result of EEO retaliation and the agency’s failure to
accommodate a disability. Id. at 14, 16. However, he did not identify these
claims as issues in his prehearing statement. Id. at 4. The administrative judge
did not identify these discrimination and retaliation claims as issues for
adjudication in the prehearing conference summary. IAF, Tab 22 at 3. She did
not render findings on the appellant’s FMLA and disability discrimination claims
in the initial decision. ID at 9. As discussed below, we find that the appellant
has abandoned these previously raised affirmative defenses.
¶12 In Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18, we set forth a
nonexhaustive list of factors for consideration when determining whether an
appellant will be deemed to have waived or abandoned a previously raised
affirmative defense. The factors include: (1) the thoroughness and clarity with
which the appellant raised his affirmative defense; (2) the degree to which the
appellant continued to pursue his affirmative defense in the proceedings below
after initially raising it; (3) whether the appellant objected to a summary of the
issues to be decided that failed to include the potential affirmative defense when
he was specifically afforded an opportunity to object and the consequences of his
failure were made clear; (4) whether the appellant raised his affirmative defense
or the administrative judge’s processing of the affirmative defense claim in his
petition for review; (5) whether the appellant was represented during the course
of his appeal before the administrative judge and on petition for review, and if he
was not, the level of knowledge of Board proceedings possessed by the appellant;
and (6) the likelihood that the presumptive abandonment of the affirmative
8

defense was the product of confusion, or misleading or incorrect information
provided by the agency or the Board. Id., ¶ 18.
¶13 Here, the appellant raised the FMLA reprisal affirmative defense in a single
sentence in a single pleading. IAF Tab 19 at 4. As to his EEO retaliation and
disability discrimination claims, he did not clearly identify them as issues to be
decided. Id. Although he referred to his requests for accommodation in his
prehearing submissions, he did not argue that his removal resulted from the
agency’s alleged denials of those requests. Id. at 14. Further, the appellant’s
representative appeared to disclaim that he was raising an EEO retaliation claim
at the hearing but instead asserted that his only purpose in introducing testimony
regarding the appellant’s EEO activity was to demonstrate “instances of
harassment.” HT at 239-40 (discussion on the record). The appellant had the
opportunity to object to the administrative judge’s prehearing conference
summary that included the issues to be determined at hearing; yet, despite
objecting to other portions of the prehearing conference summary, he did not
object to the summary of his affirmative defenses. IAF, Tab 22 at 3, Tab 23
at 4-5. The administrative judge warned the parties that, absent objection, no
issues would be accepted beyond those listed in the prehearing conference
summary. IAF, Tab 22 at 1.
¶14 Similarly, the appellant did not raise any argument on review regarding his
FMLA reprisal claim. PFR File, Tab 1. The administrative judge appears to have
made a finding that the appellant did not prove retaliation for EEO activity, but
she does not explain in the initial decision why she reached this finding despite
the appellant’s specific statement that he was not raising such a claim. ID at 13.
The appellant appears to dispute this finding on review, but falls short of
asserting that his removal was the result of EEO retaliation. PFR File, Tab 1 at 8,
14. Regarding the disability discrimination claim, the administrative judge found
that the appellant did not assert this affirmative defense below and thus did not
address this issue in the initial decision. ID at 7 n.4. While the appellant does
9

not explicitly contest this finding on review, he appears to argue that his
reasonable accommodation requests were denied by his supervisors. PFR File,
Tab 1 at 12-14.
¶15 Throughout this appeal, the appellant was represented by an attorney and
there is no evidence that his abandonment of these affirmative defenses was due
to confusion or misleading or incorrect information provided by the
administrative judge or the agency. As such, when weighing all these factors
together, it is clear that the appellant either did not raise or effectively abandoned
the affirmative defenses of disability discrimination and retaliation for his prior
EEO and FMLA activity, and we will not consider these issues further. Because
the appellant’s EEO claim was not properly before her, we vacate the initial
decision to the extent that it suggested the appellant did not prove this claim. ID
at 13.

We affirm the finding that the appellant failed to establish his affirmative defense
of reprisal for his prior Board appeals, as modified to apply the proper standard.
¶16 In finding that the appellant failed to prove his affirmative defense of
reprisal for filing prior Board appeals, the administrative judge analyzed the
appellant’s claim under the Warren standard. ID at 9-14; see Warren v.
Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986) (establishing the
general reprisal standard), superseded in part by statute as stated in Alarid v.
Department of the Army, 122 M.S.P.R. 600, ¶ 15 (2015) (explaining that the
Warren standard is inapplicable to claims subject to the burden-shifting standard
set forth in 5 U.S.C. § 1221(e)). However, the Warren standard does not apply to
claims in which an appellant asserted EEO retaliation. See Mattison v.
Department of Veterans Affairs, 123 M.S.P.R. 492, ¶ 8 (2016) (reflecting that the
Warren standard does not apply to cases in which an appellant alleges reprisal for
activity protected by Title VII). The appellant raised an affirmative defense of
retaliation for prior EEO activity in his underlying Board appeals. Specifically,
he asserted race discrimination and retaliation for filing an EEO complaint. Kone
10

v. Department of the Navy, MSPB Docket No. PH-0752-13-0217-I-1, Initial
Appeal File, Tab 4 at 13; 0217 Final Order at 3, 9. Thus, in the instant appeal,
the appellant must prove that his prior Board appeals, which included his
discrimination claims, were a “motivating factor” in his instant removal. See
Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 32 (stating that
the “motivating factor” standard applies in claims of retaliation for filing Board
appeals when the underlying Board appeal involved claims of discrimination and
retaliation for engaging in EEO activity).
¶17 Nonetheless, although the administrative judge discussed the general
Warren reprisal standard, she properly relied on the motivating factor standard .
ID at 9, 13. She concluded that the appellant had not shown that his prior Board
appeals were a motivating factor in this removal action. ID at 13. We clarify on
review that the Warren standard on which the administrative judge partially relied
is not applicable here. See Mattison, 123 M.S.P.R. 492, ¶ 8.
¶18 The administrative judge found that it was undisputed that the appellant
filed prior Board appeals and that his first-line supervisor, the proposing official,
and the deciding official acknowledged that they were aware of this prior
protected activity. ID at 9-10. However, she found that none of these agency
officials were involved in the discipline underlying those prior appeals. ID at 13.
She further found that the record fully supported the agency’s stated reason for
the removal, the appellant’s AWOL charge. Id. She thus concluded that the
appellant had not shown his prior Board appeals were a motivating factor in the
removal. Id. We agree. Additionally, we find that the administrative judge’s
reliance on the Warren standard does not change the outcome in this case because
the appellant’s claim would fail under either of the aforementioned standards. 5
5
Although the administrative judge discussed the Warren standard in advising the
appellant of his burdens of proof regarding his affirmative defenses, this error did not
harm the appellant. The Warren standard is higher than the motivating factor standard
for proving retaliation under Pridgen. In particular, in order to meet the “genuine
nexus” requirement under Warren, an appellant must prove, as relevant here, that the
adverse employment action was taken because of the protected activity. Mattison,
11

ID at 12-14. Thus, any error committed by the administrative judge in applying
this standard has not prejudiced the appellant’s rights. See Panter v. Department
of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error
that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision).
¶19 On review, the appellant argues that the administrative judge’s analysis of
his reprisal claim for filing prior Board appeals reflects a misunderstanding of the
“cat’s paw” theory of liability. PFR File, Tab 1 at 9-10, 15. The appellant argues
that the administrative judge erred in finding that he did not demonstrate that his
first-line supervisor improperly influenced the proposing and deciding officials.
Id. He reasons that, under the “cat’s paw” theory, this proof is not required but
that the bias of the first-line supervisor was automatically imputed to the
proposing and deciding officials, regardless of whether they were directly
informed of, or influenced by, the bias. Id. at 9.
¶20 The U.S. Supreme Court has adopted the term “cat’s paw” to describe a
situation in which a particular management official, acting because of an
improper animus, influences the agency official charged with making the
employment decision at issue. Staub v. Proctor Hospital, 562 U.S. 411, 415-16
(2011). Although the administrative judge did not specifically refer to the “cat’s
paw” theory in her analysis, she did consider the appellant’s claim regarding the
first-line supervisor’s alleged bias against the appellant. 6 ID at 13.
¶21 As relevant here, she was not persuaded that the vague testimony of one of
the appellant’s coworkers that the first-line supervisor asked him about the
appellant reflected any retaliatory animus. ID at 12-13. The appellant argues that

123 M.S.P.R. 492, ¶ 8. When a statute prohibits retaliation “because of” protected EEO
activity, the employee’s claim is subject to a but-for causation standard. Pridgen,
2022 MSPB 31, ¶¶ 44-46. “But-for” causation is a higher burden than “motivating
factor” causation.” Id., ¶¶ 21 n.4, 22, 28.
6
To the extent the appellant has invoked the cat’s paw theory as to his disability
discrimination and EEO retaliation claims, we decline to address this argument. PFR
File, Tab 1 at 9-10, 15-16. As discussed above, these claims are not properly before us.
12

the administrative judge mischaracterized the testimony of his coworker. PFR
File, Tab 1 at 5-7. He argues that his coworker’s testimony was sufficiently
specific as to the timing of the conversation between him and the first-line
supervisor and as to the topic of discussion. Id. at 6-7. We are not persuaded.
¶22 The appellant’s coworker testified that, “right at the very beginning” of
when the first-line supervisor began supervising the appellant, the first-line
supervisor asked the coworker if he knew of the appellant’s “issues” and the
coworker responded that he had heard rumors about the appellant. HT at 197-98
(testimony of the coworker). He further testified that the first-line supervisor did
not ask about any other employees. Id. at 198. As the appellant observes, it is
possible to surmise that the conversation occurred sometime in early- to
mid-2016, based on the testimony of the appellant’s supervisor. PFR File, Tab 1
at 6; HT at 56 (testimony of the first-line supervisor). Nonetheless, we agree
with the administrative judge’s characterization of this testimony as vague and
her finding that it did not support a retaliatory motive by the first-line supervisor.
ID at 13. The only specific information the coworker was able to provide
regarding the substance of the first-line supervisor’s questions was that he asked
“do you know if [the appellant] even come[s] to the office.” HT at 197
(testimony of the coworker). This question does not reflect an improper motive.
Rather, it appears related to the appellant’s attendance problems, which the
appellant’s first-line supervisor testified “started within a few months within
[him] becoming a supervisor.” HT at 60 (testimony of the first-line supervisor).
In fact, the supervisor issued the appellant a letter of reprimand for an unexcused
absence on August 10, 2016. HT at 60-61 (testimony of the first-line supervisor);
IAF, Tab 4 at 34-36. Thus, contrary to the appellant’s arguments on review, we
find that his coworker’s testimony does not evidence retaliatory intent on the part
of his first-line supervisor. PFR File, Tab 1 at 7.
¶23 We are also not persuaded that the fact that the appellant’s first-line
supervisor read the appellant’s file is evidence of retaliatory motive. Id.; HT
13

at 56 (testimony of the first-line supervisor). He also testified that he read the
files of all his subordinates. HT at 56-57 (testimony of the first-line supervisor).
Thus, we discern no evidence of retaliatory motive. Because the administrative
judge properly found that the appellant’s first-line supervisor had no motive to
retaliate against the appellant based on his prior Board appeals, it follows that
there is no motive to impute to the proposing and deciding officials. As such, the
administrative judge correctly found that the appellant had not shown that his
prior Board appeals were a motivating factor in his removal. ID at 13-14.

The administrative judge correctly found that the penalty of removal was
reasonable.
¶24 On review, the appellant argues that the deciding official and administrative
judge failed to consider provocation as a mitigating factor and that the penalty of
removal can thus not be sustained. 7 PFR File, Tab 1 at 17-18, Tab 6 at 6-7.
Specifically, he argues that a hostile work environment created by his first-line
supervisor, in light of his medical conditions and the failure of the agency to
grant his reasonable accommodation request, should have been considered as a
mitigating factor because the circumstances provoked his AWOL status. PFR
File, Tab 1 at 17. The administrative judge addressed similar arguments below in
sustaining the agency’s charge. Specifically, she considered but rejected the
appellant’s claim that he was medically unable to work during the AWOL period.
ID at 6-8. She concluded that the appellant’s medical documentation did not
support his argument that he was incapacitated. ID at 8. The appellant does not
7
On review, the appellant also asserts his provocation argument as an affirmative
defense to his removal. PFR File, Tab 1 at 8-9, Tab 6 at 5-6. We decline to consider
this claim. First, he did not raise this argument below, IAF, Tab 1 at 6, Tab 19 at 4, and
may not now raise it on review, see Banks v. Department of the Air Force, 4 M.S.P.R.
268, 271 (1980) (finding that the Board will not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence); IAF, Tab 22 at 1-3,
Tab 23 at 4-5. Moreover, this provocation argument is more appropriately addressed as
part of the Douglas factor penalty determination analysis. See Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305 (1981) (identifying, among other mitigating
factors, any provocation by others involved in the matter).
14

dispute this finding on review. In light of the administrative judge’s
well-reasoned finding that the appellant was not incapacitated, we are not
persuaded that his new claim of “provocation,” based on his supervisor’s alleged
harassment, warrants mitigation. If the appellant was not incapacitated, he was
obligated to report to work.
¶25 When, as here, the agency’s charge has been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
of the relevant factors set forth in Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981), and exercised management discretion within
tolerable limits of reasonableness. 8 Archerda v. Department of Defense,
121 M.S.P.R. 314, ¶ 25 (2014). In determining whether the selected penalty is
reasonable, the Board gives due deference to the agency’s discretion in exercising
its managerial function of maintaining employee discipline and efficiency. Id.
The Board will modify a penalty only when it finds that the agency failed to
weigh the relevant factors or that the penalty the agency imposed clearly
exceeded the bounds of reasonableness. Id.
¶26 The administrative judge found that the deciding official properly
considered the mitigating factors and determined that the penalty of removal was
within the tolerable limits of reasonableness. ID at 14-16. In light of the above,
we agree with the administrative judge that the deciding official correctly
weighed the relevant Douglas factors and that the penalty of removal for being
AWOL for 39 consecutive days was reasonable. See, e.g., McCauley v.
Department of the Interior, 116 M.S.P.R. 484, ¶ 14 (2011) (finding that a penalty
of removal for more than 20 consecutive workdays of AWOL did not exceed the
tolerable limits of reasonableness); Foreman v. U.S. Postal Service, 89 M.S.P.R.
328, ¶ 17 (2001) (finding that removal is reasonable for 16 days of AWOL);
Maddux v. Department of the Air Force, 68 M.S.P.R. 644, 646 (1995) (finding

8
In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of factors
relevant to the penalty determination in adverse actions.
15

that removal is a reasonable penalty for approximately 3 weeks of AWOL, despite
the fact that there were mitigating factors, including the employee’s length of
service and his personal problems).

NOTICE OF APPEAL RIGHTS 9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
9
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
16

If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
17

race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
18

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The

10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
19

Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10464360. Public record. Not legal advice.