The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONIA J. BIBBY, DOCKET NUMBER
Appellant, SF-0752-13-0266-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: August 29, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lesa L. Donnelly, Anderson, California, for the appellant.
Suzanne K. Roten, Esquire, San Diego, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 the erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, 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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 Effective January 23, 2013, the agency removed the appellant from federal
service based on two charges: (1) unauthorized removal of government property
on December 12, 20, and 26, 2011, and January 8, 2012; and (2) making false
statements. Initial Appeal File (IAF), Tab 6 at 39, 87. The appellant appealed
her removal to the Board and requested a hearing. IAF, Tab 1 at 2, 3. She argued
that the penalty of removal was unreasonable given certain mitigating factors, the
agency committed harmful procedural error in effecting the removal, and the
agency treated her disparately compared to another employee who engaged in
similar conduct. Id. at 4, 5.
¶3 After holding the requested hearing, the administrative judge issued an
initial decision affirming the removal action. IAF, Tab 28, Initial Decision (ID)
at 1. She sustained both charges, found a nexus between the sustained conduct
and the efficiency of the service, and determined that the penalty was within the
bounds of reasonableness. ID at 5-12. She additionally found that the
appellant’s harmful procedural error and disparate penalties claims were without
merit. ID at 6-7, 12-16.
3
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. On review, she primarily challenges the administrative judge’s
findings regarding nexus and the reasonableness of the penalty, including her
claim of disparate penalties. Id. at 7-18. The agency has responded in
opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant argues that the agency failed to establish a nexus
between her misconduct and the efficiency of the service. PFR File, Tab 1
at 9-10. The nexus requirement, for purposes of whether an agency has shown
that its action promotes the efficiency of the service, means there must be a clear
and direct relationship between the articulated grounds for an adverse action and
either the employee’s ability to accomplish her duties satisfactorily or some
other legitimate government interest. Scheffler v. Department of the
Army, 117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013).
The Board has found there is sufficient nexus between an employee’s conduct
and the efficiency of the service where the sustained conduct: (1) occurred in
part at work, Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir.
1987); (2) involved misuse of government property, Els v. Department of the
Army, 82 M.S.P.R. 27, ¶ 11 (1999); and (3) concerned an employee’s lack of
candor during an administrative inquiry, Ludlum v. Department of
Justice, 87 M.S.P.R. 56, ¶¶ 2, 25, 28 (2000), aff’d, 278 F.3d 1280 (Fed. Cir.
2002).
¶6 As the administrative judge properly noted, although the appellant’s actions
concerning charge (1) took place while she was off duty, they occurred on
government property and involved taking government property. ID at 7; IAF,
Tab 6 at 28-33, 39. In addition, concerning charge (2), the appellant’s false
statements were made at work to an agency law enforcement officer. ID at 7;
IAF, Tab 6 at 21, 39. Under the circumstances, the administrative judge properly
4
found that the agency established nexus. See Parker, 819 F.2d at 1116;
Els, 82 M.S.P.R. 27, ¶ 11; Ludlum, 87 M.S.P.R. 56, ¶ 28. Although the appellant
argues that the administrative judge failed to take into consideration certain
factors, e.g., her superior performance, her remorse, her former supervisor’s and
coworkers’ support, PFR File, Tab 1 at 10, the record shows that the deciding
official appropriately considered these factors during the penalty analysis, IAF,
Tab 6 at 35-37; Hearing Compact Disc (CD) at 2:00:20-2:18:30 (testimony of
deciding official).
¶7 The appellant also argues that the penalty of removal was too harsh under
the circumstances. PFR File, Tab 1 at 10-18. Where the agency’s charges are
sustained, the Board will review an agency-imposed penalty only to determine if
the agency considered all of the relevant factors and exercised management
discretion within tolerable limits of reasonableness. Woebcke v. Department of
Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010). Here, the administrative
judge found that the deciding official properly weighed the Douglas factors and
concluded that her removal promoted the efficiency of the service. ID at 9-12.
The administrative judge noted that the deciding official considered several
mitigating factors, including the appellant’s lengthy, discipline-free service, her
superior performance even after the misconduct, her remorse, her former
supervisor’s continued trust in her, 2 and her potential for rehabilitation, but
found that they did not outweigh the seriousness of the offense, which resulted in
a criminal conviction, and the nature of the appellant’s position, which included
gathering and forwarding the logs for the gas pumps at issue in the appeal as
2
The appellant argues on review that the administrative judge failed to give sufficient
weight to her former supervisor’s testimony. PFR File, Tab 1 at 7-8. For the reasons
explained in the initial decision, we agree with the administrative judge that the
deciding official’s diminished trust in the appellant—and not her former supervisor’s
continued trust—is the more appropriate consideration when analyzing the Douglas
factor concerning loss of trust and confidence. ID at 11 n.8.
5
well as handling money for permits on occasion. ID at 10-11; IAF, Tab 6
at 35-37; Hearing CD at 2:00:20-2:18:30 (testimony of deciding official). While
the appellant generally disagrees with the analysis of the Douglas factors, her
disagreement provides no reason to disturb the administrative judge’s explained
and reasoned finding that removal was within the tolerable limits of
reasonableness under the circumstances. See PFR File, Tab 1 at 10-12; ID
at 9-12; Woebcke, 114 M.S.P.R. 100, ¶ 7.
¶8 Concerning the appellant’s disparate treatment argument, we find it
similarly unpersuasive. See PFR File, Tab 1 at 12-18. She alleges that the
administrative judge erred in finding that the agency did not impose a disparate
penalty when it chose to suspend C.V., a Supervisory Forestry Technician, rather
than remove him. 3 Id. at 13-14. As accurately explained by the administrative
judge, however, unlike the appellant, C.V. engaged in the unauthorized removal
of government property only once, his actions were not caught on camera, he
did not make false statements to a Special Agent, and the U.S. Attorney General
declined to prosecute him. ID at 14-15. Under these circumstances, the
administrative judge properly found that the appellant did not show that there
was enough similarity between the circumstances surrounding the appellant’s
charged behavior and C.V.’s charged behavior to establish that they were
substantially similar for disparate penalty purposes and, even if she had, the
agency offered a sufficient explanation for the harsher penalty given to the
3
The appellant argues on review that the administrative judge erred in denying her
request to call alleged comparator, C.V., as a witness. PFR File, Tab 1 at 6-7. The
appellant did not raise this objection below, however, and her failure to do so precludes
her from raising this objection on review. See Tarpley v. U.S. Postal Service,
37 M.S.P.R. 579, 581 (1988). In any event, the administrative judge informed the
appellant that, if appropriate, she could request C.V.’s testimony as rebuttal to evidence
offered by the agency at hearing. IAF, Tab 19. The record does not reflect that the
appellant made any such request.
6
appellant. ID at 15; see Figueroa v. Department of Homeland
Security, 119 M.S.P.R. 422, ¶ 10 (2013).
¶9 The appellant additionally argues that the facts of her case are “nearly
identical” to those presented in Portner v. Department of Justice, 119 M.S.P.R.
365 (2013), in which the Board mitigated the employee’s removal to a 45-day
suspension. PFR File, Tab 1 at 14-17. In Portner, the Board found that the
deciding official erred in finding that the appellant lacked remorse for his
misconduct and, as a result, failed to properly weigh the relevant Douglas
factors. 119 M.S.P.R. 365, ¶¶ 11, 15. Consequently, upon its own analysis of the
Douglas factors, the Board determined that a 45-day suspension was the
maximum reasonable penalty under the circumstances. Id., ¶ 22. Here, the
administrative judge accurately concluded that the deciding official properly
weighed the Douglas factors, including the appellant’s rehabilitative potential and
remorse for her actions. ID at 8-12. Because the agency considered all of the
relevant Douglas factors, unlike in Portner, the Board must defer to the agency’s
penalty determination if it is within the bounds of reasonableness. See
Woebcke, 114 M.S.P.R. 100, ¶ 7. Accordingly, as the administrative judge
properly found, the penalty of removal is within the tolerable limits of
reasonableness under the circumstances. ID at 9-12.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
7
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.