The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEVADA BAMBA, DOCKET NUMBER
Appellant, NY-0714-19-0055-I-1
v.
DEPARTMENT OF VETERANS DATE: July 5, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James E. Carney , Buffalo, New York, for the appellant.
Kimberly M. Thrun , Cheektowaga, New York, 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.
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal under 38 U.S.C. § 714. For the reasons discussed below,
we GRANT the petition for review, VACATE the initial decision, and REMAND
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the case to the New York Field Office for further adjudication in accordance with
this Remand Order.
BACKGROUND
¶2 On November 7, 2018, the agency issued a notice proposing to remove the
appellant from her WG-2 Housekeeping Aid position with the Environmental
Medical Service (EMS) of the agency’s Western New York Healthcare System
(VAMC) in Buffalo, New York, pursuant to 38 U.S.C. § 714, the Department of
Veterans Affairs Accountability and Whistleblower Protection Act of 2017, Pub.
L. No. 115-41, 131 Stat. 362, which was enacted on June 23, 2017. Initial Appeal
File (IAF), Tab 11 at 26-28. The proposed removal was based on three charges:
(1) excessive absence (one specification); (2) absence without leave (AWOL)
(three specifications); and (3) failure to follow orders (two specifications). Id.
at 26.
¶3 In support of the excessive absence charge, the agency stated that, as of
November 7, 2018, the appellant had been continuously absent from work for
402 days. 2 Id. The agency further stated that: the appellant’s absence was for a
compelling reason beyond her control such that the agency’s approval or
disapproval was immaterial; the appellant’s absence had continued for an
unreasonable amount of time, and the agency had warned the appellant in letters
dated October 2 and 16, 2018, that it might initiate an adverse action unless she
became available for duty; and the appellant’s position needed to be filled by an
employee available for duty on a regular, full-time basis. Id.
2
The appellant’s absence began on September 26, 2017. Hearing Transcript (HT) at 14
(testimony of the VAMC’s Human Resources Officer (HRO)); IAF, Tab 11 at 34, 38.
At that time, the appellant was on detail to the agency’s Veterans Service Center (VSC)
as an interim accommodation for her disabilities. HT at 17-18 (testimony of the HRO).
3
¶4 The three specifications of the AWOL charge stated, respectively, that the
appellant was AWOL from November 17, 3 2017, to January 19, 2018; from
April 30 to August 6, 2018; and from August 8 to September 14, 2018. Id.
¶5 The first specification of the charge of failure to follow orders stated that, in
a letter dated October 2, 2018, the agency directed the appellant to report to duty
by October 15, 2018; however, she did not do so. Id. The second specification of
the charge stated that the appellant did not report to duty by October 29, 2018, as
directed in a letter dated October 16, 2018. Id.
¶6 The appellant submitted a written reply to the proposal notice. IAF, Tab 11
at 22-23. On November 28, 2018, the agency issued a decision sustaining all the
charges and specifications, and removing the appellant from her position effective
November 30, 2018. Id. at 15, 17-20.
¶7 The appellant filed a Board appeal challenging her removal. IAF, Tab 1.
She raised affirmative defenses of disability discrimination based on failure to
accommodate, hostile work environment, retaliation for protected EEO activity,
and harmful procedural error. IAF, Tabs 13, 40. After a hearing, the
administrative judge issued an initial decision sustaining the appellant’s removal.
IAF, Tab 43, Initial Decision (ID) at 1, 24. The administrative judge found that
the agency proved all three charges and their specifications by substantial
evidence, ID at 4-13, and that the appellant did not prove her affirmative
defenses, ID at 13-23.
¶8 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition for
review. PFR File, Tab 3.
3
During his hearing testimony, the HRO explained that the absence at issue in the first
specification of the AWOL charge began on November 27, 2017, not November 17,
2017, as stated in the proposal notice. HT at 26-27 (testimony of the HRO); IAF,
Tab 11 at 26.
4
ANALYSIS
The charges
Excessive absence
¶9 As a general rule, an agency may not take an adverse action based on an
employee’s use of approved leave. Coombs v. Social Security Administration,
91 M.S.P.R. 148, ¶ 12 (2002). However, an exception may exist when the
following criteria are met: (1) the employee was absent for compelling reasons
beyond her control so that agency approval or disapproval of leave was
immaterial because she could not be on the job; (2) the absences continued
beyond a reasonable time, and the agency warned the employee that an adverse
action could be taken unless she became available for duty on a regular full-time
or part-time basis; and (3) the agency showed that the position needed to be filled
by an employee available for duty on a regular, full-time or part-time basis. Cook
v. Department of the Army, 18 M.S.P.R. 610, 611-12 (1984). The administrative
judge found that all three of these criteria had been met, and she sustained the
charge. ID at 5-8.
¶10 The appellant does not directly contest the administrative judge’s findings
on review. However, for the following reasons, we vacate the administrative
judge’s findings on this charge and remand for further proceedings. As the
agency stated in its notice of proposed removal, the first time that it warned the
appellant that she could be disciplined for excessive approved absences was in its
October 2, 2018 letter. IAF, Tab 11 at 26, 38. In the absence of any evidence of
when the appellant actually received this letter, we find that it was delivered to
her on October 8, 2018. 4 Because the appellant was not informed of the
possibility of discipline for approved leave until October 8, 2018, the leave that
she took on or before that date cannot be used to support the charge. See
4
Under Board law, documents placed in the mail are presumed to be received in 5 days,
absent evidence to the contrary. Williamson v. U.S. Postal Service, 106 M.S.P.R. 502,
¶ 7 (2007); see 5 C.F.R. § 1201.4(l). Because October 7, 2018 was a Sunday, we find
that the appellant received this letter the following day.
5
Williams v. Department of Commerce, 2024 MSPB 8, ¶¶ 6-8. Therefore, the only
period of time properly encompassed in the excessive absence charge was
October 9, 2018, through November 7, 2018, which was a total of 22 workdays.
If it is necessary for her to reach the issue remand, the administrative judge shall
determine whether this period of absence was sufficient to prove the excessive
absence charge. She may adopt her previous findings on the remaining Cook
criteria as appropriate.
Absence Without Leave
¶11 To prove an AWOL charge, an agency must demonstrate that the employee
was absent without authorization and, if the employee requested leave, that the
request was properly denied. Savage v. Department of the Army, 122 M.S.P.R.
612, ¶ 28 n.5 (2015), overruled on other grounds by Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 23-25.
¶12 The administrative judge found that the appellant was absent from work on
the dates charged, and she further found that the agency proved by substantial
evidence that the appellant’s absences were not authorized. ID at 10; IAF, Tab 11
at 44-59. In analyzing this charge, the administrative judge also considered the
appellant’s argument that the agency should have approved her absences, and
noted that the Human Resources Officer (HRO) and the appellant provided
conflicting testimony concerning whether the appellant submitted medical
documentation in support of her absences. ID at 9.
¶13 Specifically, the appellant testified that she provided a Veterans Service
Center (VSC) manager with medical documentation in support of her absences for
the time periods at issue in the first two specifications of the charge, and that she
provided the HRO with medical documentation in support of her absences for the
time period at issue in the remaining specification. ID at 10; HT at 61-62
(testimony of the appellant). She further testified that she provided documents to
the HRO multiple times and that he would just give them back to her. ID at 9;
HT at 60 (testimony of the appellant).
6
¶14 By contrast, during his hearing testimony, as summarized in the initial
decision, the HRO stated that the appellant did not have an excused absence or
documentation to support the absences at issue in the AWOL charge. ID at 8; HT
at 25-26 (testimony of the HRO). In particular, he testified that the appellant’s
absence during the period at issue in the third specification of the AWOL charge
was not supported by medical documentation and, consequently, was not
approved. ID at 9; HT at 25, 28 (testimony of the HRO); IAF, Tab 11 at 56-57.
¶15 The HRO also disputed the appellant’s claims that she provided him with
documents several times. He testified that he met with the appellant only three
times and that only one of those meetings involved an exchange of documents.
ID at 9; HT at 9, 33-35 (testimony of the HRO). He further testified that, on that
occasion, the appellant and her union representative gave him a sealed envelope;
however, instead of opening the envelope, he handed it back to them with
instructions to deliver it to the Employee Relations Office, and then escorted the
appellant and her representative to that office. ID at 10; HT at 34-36 (testimony
of the HRO).
¶16 Applying the factors for resolving credibility issues set forth in Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987), the administrative judge
credited the HRO’s testimony over the appellant’s testimony. ID at 10-11. The
administrative judge found that the HRO’s testimony was detailed, unequivocal,
internally consistent, consistent with the record, and not inherently improbable.
ID at 11. The administrative judge further found that there is no evidence that the
appellant provided any medical documentation to the VSC manager. Id.
Accordingly, the administrative judge sustained the charge. Id.
¶17 On review, the appellant challenges the administrative judge’s finding that
she did not submit any medical documentation to agency management, and she
reiterates her claim that she submitted all documents to a VSC manager .
PFR File, Tab 1 at 3-4. The appellant also argues that the administrative judge
erred in sustaining this charge because Executive Order 5,396 states that, if a
7
disabled veteran in the executive branch has no annual or sick leave, the
employing agency must grant that individual leave without pay. Id.; see Exec.
Order No. 5,396 (July 17, 1930).
¶18 We do not agree with the appellant’s interpretation of Executive
Order 5,396. That order gives disabled veterans in the executive branch a right to
take annual leave, sick leave, or leave without pay to obtain necessary medical
treatment if the employee gives prior notice and provides appropriate medical
documentation. See Davison v. Department of Veterans Affairs, 115 M.S.P.R.
640, ¶ 8 (2011). Consequently, the appellant did not have the right to take leave
pursuant to Executive Order 5,396 unless she provided the agency prior notice
and appropriate medical documentation to support her absence.
¶19 As previously discussed, based on her explained credibility determinations,
the administrative judge found that the appellant did not provide the agency with
medical documentation to support her absence. ID at 10-11. The Board must
give deference to an administrative judge’s credibility determinations when they
are based explicitly or implicitly on the observation of the demeanor of witnesses
testifying at a hearing. Purifoy v. Department of Veterans Affairs , 838 F.3d 1367,
1372-73 (Fed. Cir. 2016); Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002). Here, the administrative judge implicitly relied on demeanor in
crediting the HRO’s testimony that the appellant did not submit medical
documentation in support of her absences. ID at 10-11. The appellant’s
argument that she submitted such documentation is, in essence, mere
disagreement with the administrative judge’s explained credibility findings and is
unpersuasive. Broughton v. Department of Health and Human Services,
33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions).
8
Failure to follow orders
¶20 To prove a charge of failure to follow orders, the agency must prove that the
appellant was given proper orders and she failed to follow them, without regard to
whether such failure was intentional or unintentional. Archerda v. Department of
Defense, 121 M.S.P.R. 314, ¶ 16 (2014).
¶21 The administrative judge found that it is undisputed that the appellant was
ordered to return to work and did not do so. ID at 12. In determining whether the
agency’s orders were proper, the administrative judge considered the appellant’s
testimony that her doctor disapproved her return to work and that she was
scheduled to return to work on December 14, 2018. ID at 12-13; HT at 62-63
(testimony of the appellant); IAF, Tab 33 at 18 (September 17, 2018 letter from
the appellant’s doctor stating that she remained unable to return to work). The
administrative judge found that the appellant’s claim that she was going to return
to work on December 14, 2018, was not credible, as her doctor’s letter merely
indicated that the appellant was going to be reevaluated on December 14, 2018, to
determine whether she was able to return to duty, not that she was expected to
return to duty that day. ID at 12-13; IAF, Tab 33 at 18.
¶22 By contrast, the administrative judge credited the HRO’s testimony that he
intended to provide the appellant an interim accommodation upon her return to
work until a permanent one was found for her. ID at 12; HT at 31 (testimony of
the HRO). The administrative judge found that this testimony was both internally
consistent and consistent with the record, and not inherently improbable. ID at 12
(citing Hillen, 35 M.S.P.R. at 458). The administrative judge further found that
the HRO’s testimony was corroborated by the following statement in both of the
October 2018 letters directing the appellant to return to duty: “If you return to
duty, you will be provided an interim accommodation until a permanent
accommodation becomes available.” ID at 12; IAF, Tab 11 at 34, 38. Based
upon her review of the relevant documentary evidence and the hearing testimony,
9
the administrative judge concluded that the appellant was given proper orders but
failed to follow them. ID at 13.
¶23 On review, the appellant argues that this charge must not be upheld because
she followed her doctor’s medical orders. PFR File, Tab 1 at 3. This argument is
unpersuasive. The appellant had been absent for more than a year and the orders
were consistent with the agency’s policy of making reasonable attempts to ensure
that such employees return to work. HT at 12 (testimony of the HRO). Given
these circumstances, we agree with the administrative judge that the orders
directing the appellant to return to duty were proper, and that the agency proved
this charge. ID at 13.
Affirmative defenses
¶24 The appellant does not specifically challenge the administrative judge’s
finding that she did not prove her affirmative defenses; however, we modify the
analysis of the appellant’s disability discrimination and EEO reprisal affirmative
defenses in the initial decision. 5
Disability discrimination
¶25 Both a claim of disability discrimination based on an individual’s status as
disabled and a claim based on an agency’s failure to reasonably accommodate
that disability require that the individual be “qualified.” Haas v. Department of
Homeland Security, 2022 MSPB 36, ¶ 28; see 42 U.S.C. § 12112(a), (b)(5)(A) . A
qualified individual with a disability is one who can “perform the essential
functions of the . . . position that such individual holds or desires” with or
without reasonable accommodation. 42 U.S.C. § 12111(8).
¶26 The administrative judge found that the appellant did not prove her
disability discrimination claim under either a failure to accommodate or disparate
treatment theory. ID at 17-19. More specifically, the administrative judge
5
We discern no reason to disturb the administrative judge’s finding that the appellant
did not prove her other affirmative defenses, i.e., harmful error and hostile work
environment. ID at 19-20, 22-23.
10
rejected the appellant’s argument that the agency rescinded her interim
accommodation “for no good reason,” IAF, Tab 13 at 9, noting that the HRO’s
letters directing the appellant to return to duty explicitly stated that, if she
returned to work, she would be provided an interim accommodation until a
permanent accommodation became available. ID at 18. The administrative judge
found that the appellant did not prove disparate treatment disability
discrimination because, among other things, she did not present any credible
evidence of coworkers who took leave for an extended period but were not
removed. ID at 18-19.
¶27 In reaching those findings, the administrative judge determined that the
appellant is an individual with a disability, ID at 16, but did not expressly
determine whether the appellant is a qualified individual with a disability, i.e.,
whether the appellant could perform the essential duties of her position, with or
without a reasonable accommodation. Accordingly, we modify the initial
decision to address that issue.
¶28 Here, the record shows that the appellant could not have performed the
essential functions of her position, with or without reasonable accommodation.
The appellant testified that: she has disabilities that render her unable to return to
work; a psychiatrist from the Social Security Administration (SSA) determined
that she is permanently and totally disabled; and she has been granted disability
retirement by SSA. ID at 5; HT at 64, 76, 90-91 (testimony of the appellant).
Based on our review of the record, including the appellant’s own statements, we
conclude that the appellant is not a qualified individual with a disability.
Therefore, the appellant cannot prevail on her claim of disability discrimination
based on the agency’s alleged failure to reasonably accommodate her, nor can she
prove disparate treatment disability discrimination. Haas, 2022 MSPB 36,
¶¶ 28-29.
11
Reprisal for protected EEO activity
¶29 In evaluating the appellant’s EEO reprisal claim, the administrative judge
noted that the appellant had requested an accommodation for her disability and
had filed discrimination complaints with the agency’s EEO office and the Equal
Employment Opportunity Commission. ID at 21 (citing IAF, Tab 11 at 13,
Tab 13). The appellant’s complaints included allegations of discrimination based
on her race, sex, and disability. IAF, Tab 13 at 7-9. Considering the evidence as
a whole, the administrative judge found that the appellant failed to prove that
retaliation was a motivating factor in her removal. ID at 21-22.
¶30 For the reasons explained in the initial decision, we agree with the
administrative judge that the appellant did not prove motivating factor. However,
to the extent that the appellant’s claims of retaliation were protected under the
Rehabilitation Act rather than Title VII, she would need to prove that retaliation
was a but-for cause of her removal. Pridgen, 2022 MSPB 31, ¶¶ 44-47.
Nevertheless, because the appellant has not proven motivating factor, she
necessarily has not proven but-for causation. See Haas, 2022 MSPB 36, ¶ 32.
The appellant’s claims of adjudicatory error are unsupported.
¶31 The appellant also argues on review that the administrative judge
improperly refused to admit all of her medical documentation and performance
evaluations. 6 PFR File, Tab 1 at 3. We do not agree. An administrative judge
has wide discretion to control proceedings, and the Board has said that “[t]o
obtain reversal of an initial decision on the ground that the [administrative judge]
abused his discretion in excluding evidence, the petitioning party must show on
6
The appellant is apparently referring to the administrative judge’s evidentiary ruling
regarding the documents that the appellant submitted with her written prehearing
statement. IAF, Tab 33 at 5-6, Tab 41. The agency objected to these documents based
on the appellant’s non-responsiveness to its requests for production. IAF, Tab 37.
During the prehearing conference, the administrative judge notified the parties that she
would reserve judgment on the admission of these documents until the hearing. IAF,
Tab 40 at 5. At the hearing, the administrative judge admitted only one of the
documents, the September 17, 2018 letter from the appellant’s doctor stating that she
was unable to work. HT at 73, 106 (statements of the administrative judge).
12
review that relevant evidence, which could have affected the outcome, was
disallowed.” Jezouit v. Office of Personnel Management, 97 M.S.P.R. 48, ¶ 12
(2004), aff’d, 121 F. App’x 865 (Fed. Cir. 2005). The appellant’s performance is
not relevant to the dispositive issues in this appeal and the appellant has not
shown that the medical documentation she references on review could have
affected the outcome of this case.
The appellant has not shown that the administrative judge was biased.
¶32 The appellant also raises an apparent claim of adjudicatory bias on review,
asserting that the administrative judge refused to listen to her or her
representative. PFR File, Tab 1 at 5. The appellant also alleges that the
administrative judge did not allow her representative to question her or the
agency’s witness. Id.
¶33 There is a presumption of honesty and integrity on the part of administrative
judges that can only be overcome by a substantial showing of personal bias, and
the Board will not infer bias based on an administrative judge’s rulings on issues.
Williams v. U.S. Postal Service, 87 M.S.P.R. 313, ¶ 12 (2000). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence a
deep-seated favoritism or antagonism that would make fair judgment impossible.
Simpkins v. Office of Personnel Management, 113 M.S.P.R. 411, ¶ 5 (2010).
¶34 The appellant’s allegations on review, which do not relate to any
extrajudicial conduct by the administrative judge, neither overcome the
presumption of honesty and integrity that accompanies an administrative judge
nor establish that she showed a deep-seated favoritism or antagonism that would
make fair judgment impossible.
We remand this appeal for further adjudication in accordance with decisions of
the Federal Circuit issued after the initial decision.
¶35 After the initial decision in this case was issued, the U.S. Court of Appeals
for the Federal Circuit decided Rodriguez v. Department of Veterans Affairs,
13
8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), in which it determined that the agency
erred by applying a substantial evidence burden of proof to its internal review of
a disciplinary action under 38 U.S.C. § 714. The court found that substantial
evidence is the standard of review to be applied by the Board, not the agency. Id.
at 1298-1300. Instead, the agency’s deciding official must use a preponderance
of the evidence burden of proof to “determine[]” whether “the performance or
misconduct . . . warrants” the action at issue. Id. at 1298-1301 (quoting
38 U.S.C. § 714(a)(1)). The holding in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. Semenov v. Department of
Veterans Affairs, 2023 MSPB 16, ¶ 22.
¶36 As he explained in the decision notice, the deciding official removed the
appellant based on his conclusion that substantial evidence supported the charges.
IAF, Tab 11 at 17. The deciding official did not testify at the hearing, and there
was no evidence suggesting that the charges were sustained based on more than
substantial evidence. The administrative judge and the parties did not have the
benefit of Rodriguez and therefore were unable to address its impact on this
appeal. We therefore remand this case for adjudication of whether the agency’s
application of the substantial evidence standard constituted harmful error. See
Semenov, 2023 MSPB 16, ¶ 22. A harmful error is an error by the agency in the
application of its procedures that is likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
the error. 5 C.F.R. § 1201.4(r). The appellant bears the burden of proving a
harmful error affirmative defense by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(C).
¶37 After the initial decision was issued in this case, the Federal Circuit also
issued its decisions in Sayers v. Department of Veterans Affairs, 954 F.3d 1370
(Fed. Cir. 2020), and Connor v. Department of Veterans Affairs, 8 F.4th 1319
(Fed. Cir. 2021). In Sayers, 954 F.3d at 1379, the Federal Circuit held that
38 U.S.C. § 714 required that the Board review for substantial evidence the
14
entirety of the removal decision, including the penalty. In Connor, 8 F.4th
at 1325-26, the court held that the agency and the Board were required to apply
the factors relevant to penalty determinations set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), to the selection and review of
penalties in 38 U.S.C. § 714 actions.
¶38 After denying the appellant’s affirmative defenses, the administrative judge
found that because the agency proved its charges by substantial evidence, the
removal penalty must be sustained. ID at 23-24. She also found that the
reasonableness of the penalty and the Douglas factors were “immaterial.” ID
at 24. Because the deciding official did not testify during the hearing and his
decision notice evidences only vague consideration of some of the Douglas
factors, IAF, Tab 11 at 17-20, it is unclear whether he considered all of the
relevant Douglas factors in making his decision.
¶39 The administrative judge and the parties did not have the benefit of Sayers
or Connor, and thus, they were unable to address their impact on this appeal. We
therefore also remand this case for adjudication of whether the agency proved by
substantial evidence that it properly applied the relevant Douglas factors and its
penalty was reasonable. See Semenov, 2023 MSPB 16, ¶ 50. If the agency does
not make such a showing, the administrative judge should remand the appellant’s
removal to the agency for a new penalty decision. See id.
¶40 The administrative judge should permit the parties to submit additional
evidence and argument on the issues on remand, to include holding a
supplemental hearing if requested. The administrative judge should approve the
deciding official as a witness if requested by either party. The administrative
judge shall then issue a new initial decision addressing the issues on remand. She
may incorporate the findings and conclusions of her prior initial decision,
consistent with this Remand Order, into her new initial decision. I f any argument
or evidence received on remand affects her previous findings, including those
regarding the agency’s charges or the appellant’s affirmative defenses, the
15
administrative judge should address such argument or evidence in the remand
initial decision. 7 See Spithaler v. Office of Personnel Management, 1 M.S.P.R.
587, 589 (1980) (explaining that an initial decision must identify all material
issues of fact and law, summarize the evidence, resolve issues of credibility, and
include the administrative judge’s conclusions of law and her legal reasoning, as
well as the authorities on which that reasoning rests).
ORDER
¶41 For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7
The administrative judge found that 38 U.S.C. § 714 appeared to eliminate the
requirement under 5 U.S.C. § 7513(a) that the agency’s action promote the efficiency of
the service. ID at 24. Because the parties did not raise this issue on review, we do not
address it. See Semenov, 2023 MSPB 16, n.9 (declining to address the issue of whether
the nexus requirement applied to a 38 U.S.C. § 714 action because the parties did not
raise it on review). Nevertheless, assuming proof of nexus is required under 38 U.S.C.
§ 714, we find the agency would have met its burden here, as the charges related
directly to the efficiency of the service. See, e.g., Adams v. Department of Labor,
112 M.S.P.R. 288, ¶ 8 (2009) (stating that any sustained charge of AWOL is inherently
connected to the efficiency of the service as an essential element of employment is to be
on the job when one is expected to be there); Howarth v. U.S. Postal Service,
77 M.S.P.R. 1, 7 (1997) (finding nexus since failure to follow instructions inherently
affects the agency’s ability to carry out its mission).