Kurt H Reavis v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KURT H. REAVIS, DOCKET NUMBER

Appellant, PH-0752-17-0242-I-2

v.

DEPARTMENT OF VETERANS DATE: August 2, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew Poulos, Jr. , Hamilton, New Jersey, for the appellant.

Stacey Rita Conroy , Esquire, Philadelphia, Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

or regulation or the erroneous application of the law to the facts of the case; the

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 as

to the period for which the agency proved the appellant was absent without leave

(AWOL) and the analyses of his claim under the Family and Medical Leave Act

of 1993 (FMLA) and his affirmative defenses, we AFFIRM the initial decision.

BACKGROUND

The appellant was a Nursing Assistant with the Veterans Health

Administration. Initial Appeal File (IAF), Tab 8 at 5. On November 27, 2016, he

was arrested by local police while off duty for driving while under the influence

(DUI). Refiled Appeal File (RAF), Tab 16 at 27, 33-34. Because the appellant

was unable to pay bail, he was placed in custody pending his trial, scheduled for

December 28, 2016. Id. at 28-29. The appellant contacted his then-supervisor,

supervisor A, and requested leave to cover his absence through December 28,

2016. Id. at 28-29, 58-59. She approved his request. Id. at 58.

The appellant’s court date was postponed, first to January 11, 2017, and

then to February 17, 2017. Id. at 29, 33. Following a bail reduction hearing in

March 2017, the appellant was released on March 28, 2017. Id. at 30, 33, 37-38.

A trial was held in May 2017, at which point the appellant was found guilty of the

DUI charge. RAF, Tab 16 at 33-34, 38.

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In the meantime, when his trial was first delayed, on December 28, 2016,

the appellant left a voicemail message with supervisor A that he anticipated

remaining in a leave without pay status (LWOP). Id. at 29, 59. The agency did

not respond to this message. Id. On December 31, 2016, after supervisor A

retired, a new supervisor, supervisor B, became the appellant’s new supervisor.

Id. at 59. On January 18, 2017, the agency mailed the appellant a letter informing

him that supervisor A had retired and was replaced by supervisor B, and that the

appellant was considered AWOL beginning January 4, 2017. IAF, Tab 3 at 80-

81. The letter mistakenly stated that the appellant had not contacted the agency

on December 28, 2016. Id. at 80. The appellant received the letter on

January 23, 2017. RAF, Tab 16 at 29. He thereafter attempted to call supervisor

B, but was unable to reach her. RAF, Tab 16 at 29-30. The appellant’s girlfriend

also called supervisor B. Id. at 29. Although she spoke with supervisor B, the

supervisor declined to discuss the appellant’s employment with her, advising her

that the appellant would have to contact supervisor B “directly.” Id. at 29, 45-46,

60.

On February 24, 2017, the agency proposed to remove the appellant based

on three charges: failure to follow leave procedures, unauthorized absence, and

AWOL. IAF, Tab 8 at 6-17. The three charges are all based on the appellant’s

absence from January 9 to February 23, 2017, when he was incarcerated. Id.

The appellant submitted a written response. IAF, Tab 3 at 38-39; RAF, Tab 16

at 30. The deciding official sustained all three charges and concluded that

removal was appropriate. IAF, Tab 8 at 23-24. The agency removed the

appellant effective April 14, 2017. Id. at 5.

The appellant filed the instant appeal. IAF, Tab 1 at 4. After he waived

his right to a hearing, the administrative judge issued an initial decision based on

the written record. RAF, Tab 9 at 4, Tab 19, Initial Decision (ID) at 2.

The administrative judge did not sustain the charges of failure to follow leave

procedures or unauthorized absence, but sustained the charge of AWOL and

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upheld the appellant’s removal. RAF, Tab 19, Initial Decision (ID) at 2-4, 8.

The administrative judge was unconvinced by the appellant’s allegations of

harmful procedural error, including the appellant’s claims of the agency

inappropriately recommending he take leave under the FMLA and that the

deciding official considered alleged misconduct not outlined in his proposed

removal as an aggravating factor. ID at 4-6.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has responded to the petition for review, and the

appellant has replied. PFR File, Tabs 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW

We affirm as modified the administrative judge’s finding that the agency proved

its AWOL charge.

To prove an AWOL charge, an agency must show, by preponderant

evidence, that the employee was absent, and that his absence was not authorized

or that his request for leave was properly denied. Rojas v. U.S. Postal Service,

74 M.S.P.R. 544, 548 (1997). The administrative judge found that the appellant

was absent during the January 9 to February 23, 2017 period for which the agency

charged him with AWOL. ID at 3. We decline to disturb this finding, which the

parties do not dispute on review. The administrative judge also found that the

appellant’s absence was not authorized. Id. On review, the appellant disagrees

with this finding. PFR File, Tab 1 at 14-16. We agree with the appellant, in part,

and conclude that the agency failed to prove that the appellant’s absence from

January 9 to 17, 2017, was unauthorized. Nonetheless, we conclude that the

agency proved its AWOL charge based on the appellant’s unauthorized absence

from January 18 to February 23, 2017. We modify the initial decision

accordingly.

5

The administrative judge incorrectly sustained specifications

relating to the appellant’s absence from January 9 to 17, 2017.

The appellant argues on review, as he did below, that he requested a “leave

of absence” for the period beginning December 28, 2016, and “[n]owhere in the

record was there evidence that the agency denied the Appellant’s request[].”

PFR File, Tab 1 at 14; IAF, Tab 1 at 4. We agree that the agency failed to meet

its burden to prove this request was not granted.

A detailed proposal notice can constitute part of the agency’s valid proof of

its charges. Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 12

(2015). However, the proposal notice on its own is not enough for the agency to

meet its burden of proof; it must be accompanied by corroborating evidence. Id.

The appellant was on approved leave during his incarceration until

December 28, 2016. RAF, Tab 16 at 28-29, 58-59. Here, the statement in the

proposal notice that the appellant was AWOL beginning January 4, 2017, is

premised on the inaccurate assertion that the appellant did not contact the agency

between December 9, 2016, and January 18, 2017. IAF, Tab 8 at 18. In fact, the

parties agree that on December 28, 2016, the appellant contacted supervisor A

and left a voicemail requesting a leave of absence until further notice.

RAF, Tab 16 at 29, 59; IAF, Tab 3 at 70-71.

Further, the record lacks evidence establishing that the appellant’s

supervisors did not approve his December 28, 2016 request for a leave of

absence. There is some evidence in the record suggesting that supervisor A may

not have considered the appellant’s voicemail as a proper or complete request for

leave. IAF, Tab 3 at 70-71. Specifically, the appellant provided handwritten

notes from supervisor A below, indicating that the appellant needed to submit

either “the FMLA form – or ask for leave without pay” in connection with his

December 28, 2016 voicemail message. IAF, Tab 3 at 70-71; RAF, Tab 16 at 21.

As another example, the agency indicated in response to the appellant’s discovery

requests that, in his December 28, 2016 voicemail, the appellant “stated he would

6

send a request for leave of absence.” RAF, Tab 16 at 59. However, these

statements are not sworn or authenticated, and do not specifically address whether

the appellant’s December 28, 2016 request for leave was denied. IAF, Tab 3 at 1-

2, 68; RAF, Tab 16 at 60; see Adamsen v. Department of Agriculture,

116 M.S.P.R. 331, ¶ 17 (2011) (explaining that an unsworn statement identifying

no firsthand knowledge of the relevant events and no factual basis to support the

assertions therein is, on its face, unreliable hearsay entitled to little weight).

The record also does not indicate whether supervisor A advised supervisor

B of the appellant’s voicemail message from December 28, 2016. IAF, Tab 3 at

70-71, Tab 8 at 18; RAF, Tab 16 at 59, 64. Similarly, there is no evidence as to

whether supervisor B approved or denied the appellant’s December 28, 2016

request for a leave of absence. There is no correspondence, for example, from the

agency to the appellant regarding this request. IAF, Tab 3 at 80; RAF, Tab 16 at

29. Therefore, we find that the agency failed to meet its burden of proving

specifications related to the appellant’s absence from January 9 to 17, 2017.

We modify the initial decision accordingly.

The administrative judge correctly sustained the remaining AWOL

specifications, relating to the appellant’s absence from January 18

to February 23, 2017.

The agency’s remaining AWOL specifications cover the period

January 18 to February 23, 2017. 2 IAF, Tab 8 at 14-17. We agree with the

administrative judge that the agency proved these specifications. ID at 3-4.

Based on the agency’s proof of these specifications, we also agree with the

administrative judge that the agency proved the charge. See Burroughs v.

Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (explaining that

when more than one event or factual specification supports a single charge, proof

of one or more, but not all, of the supporting specifications is sufficient to sustain

the charge); Cole v. Department of the Army, 78 M.S.P.R. 288, 291-92 (1998)

2

The agency has a duplicate specification for January 20, 2017. IAF, Tab 8 at 15-16.

For purposes of our analysis, we count the absence only once.

7

(affirming an administrative judge’s determination that an agency proved an

AWOL charge based on a portion of the alleged absence).

To the extent the appellant argues that his entire absence was authorized

due to his December 28, 2016 request for a leave of absence, we are not

persuaded. PFR File, Tab 1 at 13-15. As indicated above, a detailed proposed

removal accompanied by corroborating evidence can constitute proof of an

agency’s charge. Thompson, 122 M.S.P.R. 372, ¶ 12. The agency’s notice of

proposed removal accurately represents that the agency sent the appellant a letter

on January 18, 2017, instructing him to provide information. IAF, Tab 8 at 18.

The January 18, 2017 letter, which is contained in the record, corroborates that

the agency advised the appellant that it considered him AWOL, and instructed

him to report to work or contact the agency to request leave. IAF, Tab 3 at 80-81.

The appellant admits that the letter was delivered to his address 5 days after it

was sent. IAF, Tab 3 at 82-83; RAF, Tab 16 at 29; Marcantel v. Department of

Energy, 121 M.S.P.R. 330, ¶¶ 5-9 (2014) (explaining that under 5 C.F.R.

§ 1201.22(b)(3), an appellant is deemed to have received an agency decision

letter on the date it was received by his father at the address the appellant

provided to the agency, even if the appellant received it later). Further, as

discussed above, the appellant does not dispute that he was absent during the

period at issue. We find that the proposal notice, corroborated by the agency’s

letter, is sufficient proof that as of January 18, 2017, the appellant’s absence was

unauthorized. See Gill v. Department of the Navy, 34 M.S.P.R. 308, 311-12

(1987) (determining that an agency proved an appellant was AWOL based on a

detailed notice of proposed removal supported by a memoranda from the agency

to the appellant reflecting that she was considered AWOL). Thus, the agency has

proved that the appellant was absent beginning January 18, 2017, and that this

absence was not authorized. Rojas, 74 M.S.P.R. at 548.

Proof of these two elements, however, is not always sufficient to prove the

charge. If an employee has requested leave to cover his absences, an AWOL

8

charge will be sustained only if the agency establishes that his requests were

properly denied. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 28

(2015), overruled in part on other grounds by Pridgen v. Office of Management

and Budget, 2022 MSPB 31, ¶¶ 23-25; Rojas, 74 M.S.P.R. at 548.

The administrative judge found that the appellant’s attempts to contact his

supervisor did not excuse his absence. ID at 3. The appellant argues that his

absence should have been excused because he attempted to communicate with the

agency by “alternate means.” PFR File, Tab 1 at 15. We agree with the

administrative judge.

Although the appellant does not specify the alternate means to which he is

referring on review, he appears to be arguing that attempts his girlfriend made on

his behalf to contact supervisor B after receiving the agency’s January 18, 2017

letter should have been considered requests for leave. Id. at 10, 15. We are not

persuaded. The appellant argued below that supervisor B improperly declined to

speak with the appellant’s girlfriend about his employment. RAF, Tab 16 at 13,

29, 45-46, 60. The appellant has not presented evidence of an agency policy or

practice of considering requests for leave made by family members or friends.

In fact, the agency consistently advised first the appellant’s mother, and then his

girlfriend, that the appellant needed to request leave himself. IAF, Tab 16 at 42,

45-46; RAF, Tab 3 at 69; see Cole, 78 M.S.P.R. at 292 (finding an administrative

judge erred in finding, contrary to the evidence in the record, that an agency had a

practice of granting informal leave requests made by third parties and that,

therefore, the administrative judge also erred in mitigating the penalty for AWOL

based on this practice).

Further, even if the appellant’s girlfriend made valid requests for leave, the

denial of those requests would be reasonable. Johnson v. Defense Logistics

Agency, 54 M.S.P.R. 370, 372-73 (1992). An agency is not required to grant an

employee LWOP to cover an absence due to his arrest and incarceration.

Id. at 372. Accordingly, we find that the agency properly designated the

9

appellant as AWOL beginning January 18, 2018, and the following 5-week

absence was sufficient to prove its charge. See Burroughs, 918 F.2d at 172;

Cole, 78 M.S.P.R. at 291. Because we agree with the administrative judge’s

finding that the agency proved its charge, we find any error in sustaining all of

the agency’s specification was not prejudicial to the appellant’s substantive

rights. Therefore, it provides no basis for reversal of an initial decision.

See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)

(observing that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision).

We affirm, as modified, the administrative judge’s determination that

a different result is not warranted under the FMLA.

On review, the appellant re-raises his claim that the agency improperly

urged him to seek FMLA protection for his absence. PFR File, Tab 1 at 16-17.

The administrative judge analyzed this claim as one of alleged harmful procedural

error. ID at 5. She found that it was improper for the appellant’s supervisors to

suggest he apply for FMLA protection for his absence because his absence was

not related to any medical condition. Id. However, she concluded that any error

was harmless because the appellant did not request leave under the FMLA. Id.

Although not entirely clear, the appellant seems to argue on review that the

agency improperly relied on his failure to request FMLA in support of its AWOL

charge. PFR File, Tab 1 at 16-17; RAF, Tab 16 at 20-21. We modify the

administrative judge’s analysis, but find no basis to reverse the initial decision, as

the outcome remains the same. 3 See Panter, 22 M.S.P.R. at 282.

When the facts, either specifically raised by the appellant or otherwise

shown by the record evidence, implicate the FMLA relative to a leave-related

3

We also modify the initial decision to the extent the administrative judge found that

the agency acted wrongfully in suggesting the appellant request FMLA protection for

his absence. ID at 5. An agency is obligated to “inform its employees of their

entitlements and responsibilities” under the FMLA. 5 C.F.R. § 630.1203(g).

Regardless of the appellant’s incarceration, we discern nothing improper in the agency

providing that notice here.

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charge, the Board will consider and apply the FMLA without shifting the burden

of proof to the appellant. Ellshoff v. Department of the Interior, 76 M.S.P.R. 54,

73 (1997). Thus, contrary to the administrative judge’s analysis in the initial

decision, the Board does not treat a claim that an agency improperly denied an

appellant leave under the FMLA as an affirmative defense. Id. at 73-74.

However, because the appellant asserts he was not eligible for protection under

the FMLA, the administrative judge did not err in finding that the agency proved

its charge. ID at 3-5; RAF, Tab 16 at 21.

To the extent the appellant asserts that the agency used “his failure to apply

[for FMLA] as a justification for its AWOL charge,” the record does not support

his claim. PFR File, Tab 1 at 16; RAF, Tab 16 at 20-21. The appellant cites to

notes, emails, and an internal memorandum from supervisors A and B, in addition

to the agency’s January 18, 2017 letter to him regarding his leave status.

PFR File, Tab 1 at 16; RAF, Tab 16 at 21. While these documents reflect that the

appellant’s supervisors considered him AWOL and he did not invoke FMLA, they

do not suggest that the agency’s determination that the appellant was AWOL

resulted from his failure to invoke FMLA. IAF, Tab 3 at 69-72, 78, 80-81;

RAF, Tab 16 at 58-59, 66. Further, the proposing and deciding officials were

individuals other than supervisor A and B. IAF, Tab 8 at 19, 26. The proposal

notice and removal decision do not reflect that these officials relied on the

appellant’s failure to request FMLA as a factor relating to either the charge or the

penalty. Id. at 6-29.

We decline to disturb the administrative judge’s finding that the agency failed to

meet its burden of proof regarding the remaining charges.

The administrative judge found that the agency failed to prove the charge

of failure to follow leave procedures because of the appellant’s attempts to follow

the procedures. ID at 2-3. The administrative judge additionally found that the

11

agency failed to prove the charge of unauthorized absence because it was

repetitive and based on same set of facts as the AWOL charge. 4 ID at 3.

We agree with the administrative judge that the appellant did not prove his

harmful error claims, but modify her reasoning.

The administrative judge found that the appellant did not prove his claims

of harmful error. ID at 4-6. Most of these determinations are not challenged on

review, and we decline to disturb them. See 5 C.F.R. § 1201.115 (providing that

the Board normally will consider only issues raised in a timely filed petition or

cross petition for review). Instead, we turn directly to the disputed findings. Id.

We modify the initial decision to find that the agency did not violate

the appellant’s due process rights

The appellant alleged below that the agency violated its own policies by

failing to “afford[] [him the] opportunity” to make an oral reply to his proposed

removal. RAF, Tab 16 at 23-24. The administrative judge found that the

appellant’s request for an oral reply was untimely and he failed to show that the

agency would have taken no discipline, or lesser discipline, as the result of an

oral reply. ID at 6. The appellant reasserts his harmful error claim and argues

that the agency violated his due process rights. PFR File, Tab 19-22.

The appellant does not appear to have raised this due process claim below and the

administrative judge did not address it. IAF, Tab 16 at 23-24. Nonetheless, we

4

Although not explicitly stated, the administrative judge appears to have implicitly

found that the charge of unauthorized absence and AWOL merged. ID at 3. We see no

reason to disturb this finding. See Hawes v. Office of Personnel Management,

122 M.S.P.R. 341, ¶ 6 (2015) (finding that an administrative judge appropriately

merged charges based on the same set of underlying facts); McNab v. Department of the

Army, 121 M.S.P.R. 661, ¶ 4 n.3 (2014 (finding that an administrative judge properly

merged specific absences that were listed under both an AWOL charge and a charge of

failure to follow leave restriction letter procedures). Ordinarily, when one charge as to

which an agency met its burden of proof merges into another charge, the Board

considers both charges proven. See Shiflett v. Department of Justice, 98 M.S.P.R. 289,

¶¶ 5-6, 12 (2005) (concluding that when two charges merged the agency proved both

charges). However, because the distinction does not affect the outcome here, we see no

need to revisit the administrative judge’s finding that the agency did not prove its

unauthorized absence charge. ID at 3; see Panter, 22 M.S.P.R. at 282.

12

have exercised our discretion to consider it on review. See Holton v. Department

of the Navy, 123 M.S.P.R. 688, ¶ 28 (2016) (exercising discretion to consider a

due process issue on review although it was unclear if it was raised below),

aff’d, 884 F.3d 1142 (Fed. Cir. 2018). We modify the initial decision to find that

the agency did not deny the appellant due process.

The agency advised the appellant in its proposed removal that he could

reply orally, in writing, or both. IAF, Tab 8 at 18. It provided the appellant with

14 calendar days from receipt to do so. Id. The appellant indicated below that he

received the proposed removal “[o]n or about the first week of March 2017.”

RAF, Tab 16 at 30. He submitted a written reply on March 6, 2017, and the

deciding official considered it. IAF, Tab 3 at 38-39, Tab 8 at 23; RAF, Tab 16

at 30. 5

However, we are unable to find any evidence supporting the appellant’s

claim that he made a request to present an oral reply. The failure to hear a

requested oral reply is a violation of minimum due process that requires reversal

of an agency’s action. Alford v. Department of Defense, 118 M.S.P.R. 556,

¶¶ 6-7 (2012). However, if the appellant wanted to make an oral response to the

proposed removal, it was incumbent on him to make an unequivocal request of

the deciding official to afford him one. White v. Department of Veterans Affairs,

120 M.S.P.R. 405, ¶ 18 (2013). In White, the Board found that an email

requesting official time for an appellant to prepare his written and oral replies

was not an unequivocal request to present an oral reply. Id. In so finding, the

5

Assuming all facts in the appellant’s favor, we presume he received the notice no later

than March 6, 2017, the day he submitted his written reply. Although the appellant

argues on review that the administrative judge found his written reply was untimely, we

disagree. PFR File, Tab 1 at 20. Rather, in context, the administrative judge’s

statement that the appellant “made a written reply, and it was beyond the time period

for him to reply to the proposal” referred to the appellant’s failure to request an oral

reply by March 20, 2017, the 14th calendar day after he received the proposed removal.

ID at 6. Thus, we discern no error.

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Board reasoned that the focus of the appellant’s request was on official time and

he did not make the request to the deciding official. Id.

The evidence of a request to make an oral reply is similarly lacking here.

In his written reply, the appellant indicated that he expected his “situation,”

presumably referring to his incarceration, to be “cleared up by 3/28/17 . . . and

[he] look[ed] forward to talking” to the agency at that point. IAF, Tab 3 at 39.

He addressed his written reply both to supervisor B and the individual designated

as the contact point for his written and oral replies. IAF, Tab 3 at 38, Tab 8 at

18. However, the statement that he was looking forward to talking to the agency

does not convey that he was requesting something. IAF, Tab 3 at 38. Rather it

suggests the appellant was politely closing his written response, particularly

because it appears at the end of the letter. Id.

The appellant also did not provide any evidence that he otherwise sought to

make an oral reply. In particular, although his representative asserted in his close

of record submission below that the appellant made such a request to supervisor

B, the accompanying sworn statement from the appellant does not support this

contention. RAF, Tab 16 at 23, 30-31; see Hendricks v. Department of the Navy,

69 M.S.P.R. 163, 168 (1995) (explaining that the statements of a party’s

representative in a pleading do not constitute evidence). It reflects that the

appellant told supervisor B that he “would be sending her a letter that indicates

that [he] intended to reply in more detail” to the proposal notice and later stated

to her that he “had not yet had the opportunity to address the proposed removal.”

RAF, Tab 16 at 30-31. Supervisor B was not the proposing or deciding official,

and also was not the individual designated as the contact to schedule the oral

response. IAF, Tab 8 at 18-19, 26. Thus, his statements to her were not

unequivocal requests to make an oral response. Because we find that the

appellant did not invoke his right to make an oral response, we discern no due

process violation.

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The appellant also argued below that the deciding official committed

harmful error by considering uncharged conduct of an alleged lack of candor in

removing him. RAF, Tab 18. The administrative judge denied this harmful error

claim, as further discussed below. ID at 6. On review, the appellant argues that

the agency violated his right to due process. PFR File, Tab 1 at 23-24.

Although the appellant did not raise this argument below, we modify the initial

decision to consider it. See Holton, 123 M.S.P.R. 688, ¶ 28. Nonetheless, we do

not find a basis to reverse the initial decision or the removal.

Procedural due process guarantees are not met if an employee had notice of

only certain charges or portions of the evidence that the deciding official

considered; therefore, it is constitutionally impermissible to allow a deciding

official to receive additional material information that may undermine the

objectivity required to protect the fairness of the process. Stone v. Federal

Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999). When a

procedural due process violation has occurred because of such ex parte

communications, the violation is not subject to the harmful error test, and the

appellant is entitled to a new constitutionally correct administrative procedure.

Id. at 1377.

Here, the agency’s reference to the uncharged lack of candor offense was

included in its closing statement, submitted by its representative. RAF, Tab 17

at 6. Neither the proposed removal nor the removal decision referenced such a

charge. IAF, Tab 8 at 6-29. Further, although the agency’s representative

suggested the appellant’s lack of candor warranted his removal, the representative

did not state that the deciding official actually considered this alleged lack of

candor. RAF, Tab 17 at 6. There is no other information in the record suggesting

that the proposing or deciding official contemplated any alleged lack of candor in

connection with the removal. Because the only information regarding the alleged

consideration of lack of candor is a statement of the agency’s representative in a

pleading, we find that evidence to support an alleged due process violation is

15

lacking. See Hendricks, 69 M.S.P.R. at 168. Accordingly, we determine that the

appellant has not proven the agency considered ex parte information in violation

of his due process rights.

We affirm, as modified, the administrative judge’s determination that

the appellant failed to prove harmful error

An employee is entitled not only to minimum due process but also to the

protections afforded by statute, regulation, and agency procedures.

Stone, 179 F.3d at 1377-78. The Board must reverse an agency’s action if an

appellant establishes that the agency committed a procedural error that likely had

a harmful effect on the outcome of the case before the agency.

Goeke v. Department of Justice, 122 M.S.P.R. 69, ¶ 7 (2015). Harmful error,

however, cannot be presumed; an agency’s error is harmful only when the record

shows that it was 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. Id.

The appellant asserted below, and reargues on review, that the agency

violated its own policy of allowing oral replies. PFR File, Tab 1 at 21-22;

RAF, Tab 16 at 23-25. However, he does not dispute the administrative judge’s

determination that he failed to show that an oral reply would have caused the

agency to issue lesser or no discipline. PFR File, Tab 1 at 21-22. In addition, as

discussed above, we have found that the appellant failed to invoke his right to

make an oral reply. Therefore, we discern no basis to disturb the administrative

judge’s denial of this claim.

The appellant also argued below that the agency’s alleged consideration of

his lack of candor violated an agency directive. RAF, Tab 18. The appellant

re-raises this claim on review. PFR File, Tab 1 at 23-25. The administrative

judge found that the agency violated its directive, but any error was harmless.

ID at 6. We modify this finding. Because we have found no evidence that the

agency considered the appellant’s alleged lack of candor, the administrative

judge’s finding that it did was in error. See 5 C.F.R. § 1201.56(b)(2)(i)(C), (c)(1)

16

(reflecting that an appellant bears the burden of proving harmful error by

preponderant evidence).

Finally, the appellant re-raises on review his argument that supervisor B

tainted the removal decision. PFR File, Tab 1 at 18-19; RAF, Tab 16 at 21-23.

According to the appellant, she did so by concealing from the deciding official

that the appellant was incarcerated and that he attempted to contact supervisor B

after January 18, 2017. PFR File, Tab 1 at 18-19; RAF, Tab 16 at 21-23.

The administrative judge considered these arguments, but was not persuaded that

any error would have caused the deciding official to reach a different conclusion.

ID at 5-6. We discern no basis to disturb this finding. 6

Contrary to the appellant’s claims on review, the proposal notice made no

assertions about the appellant’s attempts to contact the agency after

January 18, 2017. PFR File, Tab 1 at 17; RAF, Tab 16 at 22-23; IAF, Tab 8

at 18. The record reflects that the deciding official considered the appellant’s

response to the proposed removal. IAF, Tab 8 at 23. In that response, the

appellant referred to his incarceration and listed attempts to reach the agency both

before and after January 18, 2017. IAF, Tab 3 at 38-39. The appellant has failed

to point to any evidence supporting his argument that the deciding official was

unaware of his incarceration and attempts to contact the agency when he decided

to remove the appellant. Therefore, the appellant has not proven he was harmed

by the alleged conduct of supervisor B.

6

We find it unnecessary to reach the appellant’s arguments that the administrative

judge failed to make credibility determinations and consider evidence and argument

regarding whether supervisor B did, in fact, conceal information from the deciding

official or others. PFR File, Tab 1 at 17-19. Because the appellant failed to prove any

such conduct was harmful, the issue of whether the agency committed error is not

material to the outcome of the appeal. See Spithaler v. Office of Personnel

Management, 1 M.S.P.R. 587, 589 (1980) (requiring an initial decision to identify and

resolve all material issues of fact and law).

17

The administrative judge properly sustained the penalty of removal.

Because the agency did not prove two of its charges, the administrative

reweighed the relevant penalty factors, and determined that the penalty of

removal was within the tolerable limits of reasonableness for the sustained charge

of AWOL. ID at 6-8; see Leach v. Department of Veterans Affairs, 107 M.S.P.R.

229, ¶¶ 13, 15 (2007) (explaining that when an agency does not prove all its

charges, the Board may mitigate the penalty to the maximum reasonable penalty

so long as the agency did not indicate in either its final decision or before the

Board that it desired a lesser penalty to be imposed for fewer charges).

The appellant disagrees with this conclusion. PFR File, Tab 1 at 24-25.

He generally asserts that the administrative judge failed to consider his “detailed

argument and evidence” regarding the factors relevant to penalty determinations

under Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).

PFR File, Tab 1 at 24-25.

We discern no basis to grant review. Attempts to incorporate by reference

briefs that were filed below are insufficient to meet the Board’s standards for

granting a petition for review. Hulett v. Department of the Navy, 120 M.S.P.R.

54, ¶ 5 n.2 (2013). A petition for review must contain sufficient specificity for

the Board to ascertain whether there is a serious evidentiary challenge justifying a

complete review of the record. Id.

Even if we were to consider the factors the appellant raised below, we

agree with the administrative judge that removal was a reasonable penalty for

AWOL. ID at 8; RAF, Tab 16 at 13-20. We have sustained the charge as it

concerns 5 weeks of AWOL. The Board has found an AWOL charge sufficient to

support a removal in cases involving similar factors. See Cole, 78 M.S.P.R. at

291-94 (finding removal an appropriate penalty for 16 days of AWOL related to

an appellant’s incarceration for a charge of which he was later convicted, despite

the appellant’s good performance record and length of service); see also Thom v.

Department of the Army, 114 M.S.P.R. 169, ¶¶ 2, 5, 7 (2010) (finding removal

18

warranted based on a 1-month period of AWOL despite the mitigating factor of

the appellant’s medical conditions). Thus, we agree with the administrative judge

that the penalty of removal was within the bounds of reasonableness.

Accordingly, we affirm the initial decision as modified above.

NOTICE OF APPEAL RIGHTS 7

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

7

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.

19

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

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

20

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

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

21

(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

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. 8 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.

8

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.

22

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.

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.