The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARLENE W. LOW, DOCKET NUMBER
Appellant, DA-0752-14-0086-I-1
v.
DEPARTMENT OF ENERGY, DATE: September 24, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Frederick C. Low, Esquire, Sixes, Oregon, for the appellant.
Kathy L. Black, Esquire, Portland, Oregon, 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
sustained the appellant’s removal. 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 or
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
¶2 The agency removed the appellant from the GS-14 Safety and Occupational
Manager position based on the charge of being absent without leave (AWOL)
from January 28, 2013, through September 30, 2013. Initial Appeal File (IAF),
Tab 17, Subtab 4b at 327, 111, 117. On appeal, the administrative judge found
that the agency proved the charge. IAF, Tab 49, Initial Decision (ID) at 2. She
also found that the appellant failed to prove her affirmative defense of harmful
procedural error. The administrative judge found that the appellant showed that
the agency had a policy that, when taking a removal action, the deciding official
should be a higher level official in the chain of command than the proposing
official and that the deciding official in the appellant’s case was at the same level
and in a different chain of command from the proposing official. ID at 3. The
administrative judge also found that the appellant failed to show that the
procedural error was harmful because the individual who would have been the
deciding official (had the agency followed its policy) testified at the hearing that,
if he had served as the deciding official, he would have removed the appellant.
ID at 3. The administrative judge further found that the appellant failed to prove
her affirmative defenses of retaliation for filing equal employment opportunity
3
(EEO) complaints, and sex and age discrimination. ID at 3-6. Finally, the
administrative judge found that removal for the sustained charge was reasonable
and promoted the efficiency of the service. ID at 6-8.
¶3 In her petition for review, the appellant contends that the administrative
judge erred in finding that the agency did not commit harmful procedural error.
Petition for Review (PFR) File, Tab 1. She asserts, as she did below, that the
agency committed harmful error by failing to follow the agency’s policy that the
deciding official be of a higher grade in the chain of command than the proposing
official.
¶4 Harmful procedural error is defined as error by an 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. § 1201.56(c)(3). Harmful error cannot be presumed; an agency error is
harmful only where the record shows that the procedural error 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. Bair v. Department of Defense,
117 M.S.P.R. 374, ¶ 8 (2012). The appellant bears the burden of proving her
claim of harmful error by preponderant evidence. 5 C.F.R. § 1201.56(a)(2)(iii),
(b)(1).
¶5 Here, the appellant did not respond to the notice of proposed removal. IAF,
Tab 17, Subtab 4b at 111. She called the agency official, who would properly
have been the deciding official under the agency’s policy, as her witness at the
hearing. IAF, Tab 39. As the administrative judge found, that official testified
that he was aware that the appellant had been AWOL and had told the agency that
she was not going to return to work. ID at 3. He testified further that a basic
condition of employment is that an employee must come to work and emphasized
that, if he had been the deciding official, he would have removed the appellant.
ID at 3.
4
¶6 The appellant objects to this testimony, alleging that it was prompted by a
person apparently acting as an agency technical advisor during the course of the
hearing. The Board has long recognized the appropriateness of the presence of a
technical advisor during the course of a hearing. See Day v. Department of
Housing & Urban Development, 50 M.S.P.R. 680, 682-83 (1991), aff’d, 975 F.2d
870 (Fed. Cir. 1993) (Table). Moreover, the Board has found no error in a
technical advisor consulting with agency counsel and witnesses during the
hearing. See Jeffers v. Veterans Administration, 40 M.S.P.R. 567, 571-72, aff’d,
892 F.2d 1050 (Fed. Cir. 1989) (Table). Even assuming that the administrative
judge erred in failing to disallow such consultation, the appellant has not shown
how her rights were prejudiced thereby. The appellant has not identified any
evidence that she was precluded from presenting due to the alleged actions of the
technical advisor. Therefore, she has shown no basis upon which the Board
should disallow the testimony of the witness from being considered. See
Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (the
administrative judge’s procedural error is of no legal consequence unless it is
shown that it has adversely affected a party’s substantive rights). Under these
circumstances, considering the testimony of the witness, who the appellant admits
would have been the proper deciding official, we find that the appellant failed to
meet her burden to show that the agency’s violation of its policy constituted
harmful error.
¶7 The appellant next argues as she did below that her AWOL was justified
because the agency had breached a 1999 settlement agreement in an EEO
complaint. The settlement agreement provided, inter alia, that the agency would
place the appellant in a GS-14 position, giving her all the pay and benefits
associated with that grade level. The appellant asserts that, although the agency
had continuously given her the pay and benefits of a GS-14 level, the agency
breached the agreement by failing to give her duties that were classified at the
5
GS-14 level, instead giving her duties that were classified at only the GS-12
level.
¶8 To the extent the appellant is challenging the validity of the settlement
agreement, the Board lacks jurisdiction over that claim because the settlement
agreement was not reached during the course of an appeal to the Board and was
not made part of a Board record. See, e.g., Wobschall v. Department of the Air
Force, 43 M.S.P.R. 521, 523, aff’d, 918 F.2d 187 (Fed. Cir. 1990) (Table).
Further, to the extent that the appellant is raising a separate claim that the GS-14
Safety and Occupational Manager position to which she was assigned was not
classified at the GS-14 level because of a classification appeal decision rating the
position at a GS-12 level, the Board lacks jurisdiction to review such a
classification decisions. See Crum v. Department of the Navy, 75 M.S.P.R. 75, 81
(1997).
¶9 The appellant also reasserts her claim that the agency removed her in
retaliation for filing EEO complaints. For an appellant to prevail on a contention
of illegal retaliation, she has the burden of showing that: (1) she engaged in a
protected activity; (2) the accused official knew of the protected activity; (3) the
adverse action under review could have been retaliation under the circumstances;
and (4) there was a genuine nexus between the alleged retaliation and the adverse
action. See Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir.
1986).
¶10 The administrative judge carefully considered the appellant’s allegations of
retaliation. As she found, both the proposing official and the individual, who
would have been the deciding official under the agency’s policy that the deciding
official must be higher graded than the proposing official, were aware that the
appellant had filed EEO complaints. ID at 4. She also found that the proposing
official testified that he took the action because the appellant had been AWOL for
over 6 months, and, although she was given every opportunity to return to her
position, she consistently refused to do so. ID at 4-5. The administrative judge
6
found, moreover, that the individual, who would properly have been the deciding
official, stressed in his testimony that he would have removed the appellant
because coming to work, which the appellant failed to do, is a basic condition of
employment. Implied in the administrative judge’s findings is that she found
these witnesses to be credible. 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. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .
We therefore find that the administrative judge properly found that there was no
genuine nexus between the alleged retaliation and the adverse action. See
Warren, 804 F.2d 654, 656-58.
¶11 The appellant also asserts that the removal action does not promote the
efficiency of the service. We disagree. Removal is warranted in response to the
appellant’s significant period of unauthorized absence from duty because of its
obvious disruption to the efficiency of the service. See Desiderio v. Department
of the Navy, 4 M.S.P.R. 84, 85 (1980) (unauthorized absence from duty is proper
grounds for removal since by its very nature it disrupts the efficiency of the
service). We also agree with the administrative judge that the agency proved that
removal is a reasonable penalty under the circumstances. See Foreman v. U.S.
Postal Service, 89 M.S.P.R. 328, ¶ 17 (2001) (being AWOL for 16 days is
serious); see also Maddux v. Department of the Air Force, 68 M.S.P.R. 644,
645-46 (1995) (holding that removal is a reasonable penalty for approximately 2
weeks of AWOL, despite the fact that there were mitigating factors, including the
employee’s length of service and his personal problems).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
7
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
8
file on time. 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. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.