# Sarah Ridenour v. Department of Agriculture

> Merit Systems Protection Board · February 19, 2015

URL: https://www.frixlaw.com/law-library/cases/2780656

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** February 19, 2015
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2780656

## How later opinions describe it (automated extraction)

- stating that there is sufficient nexus between an employee’s conduct and the efficiency of the service where the conduct occurred in part at work

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

SARAH RIDENOUR, DOCKET NUMBER
Appellant, SF-0752-14-0228-I-1

v.

DEPARTMENT OF AGRICULTURE, DATE: February 19, 2015
Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Barry J. Bennett, Esquire, Fresno, California, for the appellant.

Rayann Lund, Albuquerque, New Mexico, 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 agency action suspending her for 45 days. 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

1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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

interpretation of statute or regulation 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 The essential facts in this appeal, as set forth by the administrative judge in
his initial decision, are not disputed. The appellant is employed as a GS-9
Forestry Technician at the Mendocino National Forest, and one of her duties is to
serve as a liaison with private off-highway vehicle (OHV) users. Initial Appeal
File (IAF), Tab 22, Initial Decision (ID) at 2; see IAF, Tab 4 at 72, 75. As found
by the administrative judge: (1) in 2012, there was a large fire in the national
forest, and the agency planned to salvage some of the burned timber; (2) the
appellant believed that the agency was not taking into account the adverse effects
of the salvage operation on the trails that the OHV community used, and she was
frustrated that she did not seem to be able to get higher-level agency officials to
focus on that issue; and (3) the appellant sent a series of email s from her work
account to OHV enthusiasts expressing her concerns and encouraging them to
press the agency to take the impact on trails into account. ID at 2; see IAF, Tab 4
at 24, 45-54.
3

¶3 When the agency eventually learned of these emails, it suspended the
appellant for 45 days based on charges of unauthorized disclosure and improper
conduct. IAF, Tab 4 at 10-12, 29-31. The unauthorized disclosure charge cited
emails to a blogger and leader in an OHV enthusiast group in which the appellant:
(1) attached a document she had written to her supervisor setting forth her
concerns with the salvage operation and recommending a number of project
requirements; (2) stated that the agency was having difficulty meeting certain
numerical benchmarks (fuel-model numbers) required for the salvage sale to go
forward and suggested that the OHV blogger might want to ask for the data; and
(3) forwarded emails between her supervisor and her discussing the salvage sale.
Id. at 29; see id. at 45-46, 52-54. The improper conduct charge cited emails in
which the appellant: (1) told the blogger and OHV enthusiast that an
environmental group also was “not too happy with the proposed salvage” and that
“[i]t might be a good time to work with them and create an alliance to achieve
similar goals”; (2) told another member of the OHV enthusiast group that she
“could use all the help [she] can get with public comment” on the agency’s
proposal; and (3) wrote to the blogger about her supervisors that “I don’t think
they get it.” Id. at 29-30, see id. at 45, 48, 50.
¶4 After affording the parties an opportunity to make submissions and
representations, the administrative judge issued an initial decision based on the
written record. 2 The administrative judge did not sustain the first specification
under the unauthorized disclosure charge, but sustained the two remaining
specifications under that charge and all of the specifications under the improper
conduct charge. ID at 3-9. The administrative judge also found that the
appellant’s disclosures to her union and the Office of Special Counsel (OSC)
about timecard fraud, her disclosure about the fuel-model numbers discussed in
the first charge, and her disclosure about damage to the OHV trails in the email
2
In her initial appeal the appellant requested a hearing. IAF, Tab 1 at 3. Through her
attorney, she subsequently withdrew her hearing request. IAF, Tab 11.
4

soliciting help with the public comments discussed in the second charge were not
protected under the Whistleblower Protection Act. 3 ID at 9-12. The
administrative judge further found that the appellant did not show that the
deciding official failed to consider her response to the proposed action. ID at 9.
Finally, the administrative judge found a nexus between the appellant’s
misconduct and the efficiency of the service and that the agency’s penalty
selection did not exceed the maximum reasonable penalty. ID at 12-15.
¶5 The appellant has filed a timely petition for review. 4 Petition for Review
(PFR) File, Tab 3. The agency has responded in opposition to the petition for
review, and the appellant has replied to the response. Id., Tabs 5-6. In her
petition for review, the appellant contests the administrative judge’s findings
sustaining the charges, the existence of a nexus, and the penalty. Id., Tab 3 at
5-19. The appellant does not challenge the administrative judge’s findings
regarding her affirmative defenses, including her whistleblower reprisal claim.
See id. We find no basis to disturb these findings, which show that the
administrative judge considered the evidence as a whole, drew appropriate

3
Regarding the disclosure to the union, the administrative judge found that the
appellant’s two-sentence email to the union president was vague and did not disclose a
violation of any law, rule, or regulation, and did not constitute any other category of
protected activity. ID at 10-11; see IAF, Tab 18 at 347. The administrative judge also
found that the appellant’s disclosure to OSC post-dated the filing of the Board appeal
and thus could not have been a contributing factor to the adverse action. ID at 11; see
IAF, Tab 15 at 16. Regard ing the fuel-model numbers, the administrative judge found
that the appellant did not allege that the agency had already violated a law, rule, or
regu lation, and the appellant did not have a reasonable belief that the agency was going
to falsify the fuel-model plan to justify the salvage sale. ID at 11-12. Finally, the
administrative judge found that the appellant’s disclosure about damage to OHV trails
was too vague to constitute a disclosure of gross mismanagement or a gross waste of
funds and that the appellant did not establish that she had a reasonable belief that the
salvage sale, which was still only in the planning stage, would significantly impair the
agency’s ability to accomplish its mission or cause damage to the trails that was
sign ificantly out of proportion to the benefits of the sale. ID at 12.
4
The appellant was granted an extension of time in which to file her petition for review
and filed within the period granted. Petition for Review File, Tabs 2-3.
5

inferences, and made reasoned conclusions. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health &
Human Services, 33 M.S.P.R. 357, 359 (1987).

ANALYSIS
The administrative judge properly sustained the unauthorized disclosure charge.
¶6 In sustaining the unauthorized disclosure charge, the administrative judge,
found, among other things, that, although there is no agency policy prohibiting
the communication of unclassified information to non-agency employees and the
appellant was never informed that she was not allowed to provide the information
referenced in the proposal notice to non-agency employees, those facts were only
relevant to the penalty determination. ID at 7. According to the administrative
judge, they were not relevant to the merits of the agency’s case because the
agency did not charge the appellant with violating a specific policy or instruction.
ID at 7. According to the administrative judge, “[i]t was enough for the agency to
prove that the appellant violated the norms of conduct for her position.” ID at 7.
¶7 On review, the appellant argues that, because there was no agency policy
implicated by her communication of nonconfidential information with
non-employees, the agency was required to prove that the “norms of conduct” for
the appellant’s position were violated. PFR File, Tab 3 at 7-9. According to the
appellant, the agency did not establish : what those norms were, that she had been
trained about those norms, and that she violated them. Id.
¶8 As noted by the administrative judge, the only issue regarding the
unauthorized disclosure charge is whether the appellant’s emails to the OHV
enthusiasts were in fact unauthorized. ID at 3. We agree with the appellant that
the agency has not identified a specific agency policy prohibiting her conduct, but
we also agree with the administrative judge that the agency need not identify such
a policy to sustain its charge.
6

¶9 The Board has found that an agency is not required to describe in detail all
potentially prohibited employee conduct. Goldstein v. Department of the
Treasury, 62 M.S.P.R. 622, 627 (1994), vacated and remanded on other grounds,
62 F.3d 1430 (Fed. Cir. 1995) (Table); Brown v. Federal Aviation
Administration, 15 M.S.P.R. 224, 233 (1983), rev’d in part on other grounds, 735
F.2d 543 (Fed. Cir. 1984); see Byers v. Department of Veterans
Affairs, 89 M.S.P.R. 655, ¶ 24 (2001) (finding that the agency did not need to
define every possible example of patient abuse in its training manuals and
seminars). The creation of such all-encompassing policies would not be feasible.
See Brown, 15 M.S.P.R at 233 (quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C.
Cir. 1968), modified, 425 F.2d 469 (D.C. Cir. 1968), aff’d en banc, 425 F.2d 472
(D.C. Cir. 1969)). Rather, an agency may reasonably require federal employees
to exercise good judgment, notwithstanding a lack of literal guidance from an
agency rule, regulation, or other statement of agency policy. Boyer v.
Department of the Navy, 56 F.3d 84, *2 (Fed. Cir. 1995) (Table). 5
¶10 In Brousseau v. United States, 640 F.2d 1235, 1247 (Ct. Cl. 1981), for
example, the predecessor to our reviewing court found that, while there was no
written rule against organizing opposition to the policies of the employee’s
superiors, common sense should have forewarned the employee that his actions
could lead to discipline. 6 Similarly, in Bize v. Department of the
Treasury, 3 M.S.P.R. 155, 161 (1980), the Board considered an employee’s
explanation that he had never been told not to leave his badge on the dashboard or
seat of his vehicle and stated that “[o]bviously, it would be impossible for the
agency to anticipate every factual situation in which an agent might find himself

5
The Board has held that it may rely on nonprecedential U.S. Court of Appeals for the
Federal Circuit opinions if the Board finds, as we do here, the reasoning persuasive.
Alegre v. Department of the Navy, 118 M.S.P.R. 424, ¶ 15 n.2 (2012).
6
The Board has held that it may rely on decisions of the Court of Claims if the Board
finds, as we do here, the reasoning persuasive. Special Counsel ex rel Hardy v.
Department of Health & Human Services, 117 M.S.P.R. 174, ¶ 7 n.6 (2011).
7

and train the agent as to what he or she should do under each of these
circumstances.” Finally, the Board sustained a charge of patient abuse against a
Department of Veterans Affairs nurse who confronted a patient in bed, shook
papers in the patient’s face, and asked a confrontational question even though the
agency had not trained the employee that such conduct would constitute patient
abuse. Byers, 89 M.S.P.R. 655, ¶ 24.
¶11 Based on the analysis set forth above, we agree with the administrative
judge that the agency’s failure to identify a specific policy implicated by the
appellant’s misconduct is not dispositive here. As found by the administrative
judge, the appellant knew or should have known that she was not authorized to
disclose the fuel-model information or the email exchange with her supervisor to
the OHV enthusiasts. ID at 5. In making this finding, the administrative judge
relied primarily on the appellant’s admission in an investigative interview that the
emails were inappropriate and that she should not have told outsiders what she
and her supervisor were discussing. ID at 4-5; see IAF, Tab 4 at 42-43. The
administrative judge found these admissions, made closer in time to the actual
events and not made specifically for the purposes of litigation, were more
credible than the appellant’s litigation posture that the emails were not
unauthorized. ID at 6. In this regard, the administrative judge also observed that
in her email forwarding the email exchange with her supervisor, the appellant
stated that the information was “[j]ust between us.” ID at 5; IAF, Tab 4 at 45.
The administrative judge found that this statement demonstrated that the appellant
understood that the information in the email was not suitable for public
dissemination. 7 ID at 5; IAF, Tab 4 at 45. The appellant has provided nothing on

7
The administrative judge also considered the unsworn statements from current and
former agency employees that they were encouraged to cooperate with outside groups
and that there were never any issues with providin g basic information to such groups.
ID at 6; see IAF, Tab 15 at 21-25. The admin istrative judge found the statements of
little probative value because they did not identify the type of information previously
provided. ID at 6. The administrative judge made a sim ilar finding regarding a
8

review which causes us to question the administrative judge’s reasoning. See
Crosby, 74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359.
¶12 Furthermore, like any employer, a government agency has the right to
expect its employees to put loyalty to the agency and the accomplishment of the
agency’s mission above personal interests and the promotion of a private agenda.
O’Donnell v. Department of Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013) (stating
that agencies “have every right to expect loyal professional service from”
employees), aff’d, 561 F. App’x 926 (Fed. Cir. 2014); see Exec. Order No. 12,674
(stating that government employees must put loyalty to the Constitution and the
laws above private gain and that public office should not be used for private
gain). The appellant’s emails sought to promote her personal policy judgment
and agenda about the salvage operation above the judgment of agency
management and thus they were improper. 8 Therefore, for all of the reasons
discussed above, we agree with the administrative judge that the agency proved
its unauthorized disclosure charge.

The administrative judge properly sustained the improper conduct charge.
¶13 In sustaining the three specifications under the improper conduct charge,
the administrative judge found that an improper conduct charge does not
“inherently require proof of intentional misconduct,” that the agency proved the
three specifications and the charge, and that the appellant’s assertion, that she
was not aware that her conduct was improper, was only relevant to the penalty

statement from the recipient of the appellant’s emails. ID at 6-7; IAF, Tab 15 at 22.
The appellant does not challenge this analysis on review. PFR File, Tab 3.
8
Nothing in our finding erodes the well-established principle that an agency may not
discip line an employee in reprisal for a d isclosure that the employee reasonably
believes evidences a violation of law, ru le, or regulation, an abuse of authority, gross
mismanagement, a gross waste of funds, or a substantial and specific danger to public
health or safety. 5 U.S.C. § 2302(b)(8); Rumsey v. Department of Justice, 120 M.S.P.R.
259, ¶ 7 (2013). As discussed above, the administrative judge found that such
circumstances were not present in this appeal and the appellant does not challenge that
findin g on review. ID at 9-12.
9

determination. ID at 7-9. The administrative judge also found that the first
specification regarding the appellant suggesting that the OHV blogger might want
to form an alliance with an environmental group that also disapproved of the
salvage plan and the third specification regarding the appellant stating that her
supervisors did not “get it,” were relatively insignificant. ID at 9. The
administrative judge went on to find that the second specification addressing the
appellant soliciting public comments from the OHV blogger to advance her
agenda was “by far the most significant of the three specifications.” ID at 9.
¶14 On review, the appellant asserts that, while she sent the emails in question,
the agency did not prove that her conduct was improper. PFR File, Tab 3 at 11.
As discussed above, an agency need not promulgate an all-encompassing list of
prohibited behaviors to hold employees accountable for their conduct and an
agency has the right to expect its employees to put loyalty to the agency and the
accomplishment of the agency’s mission above personal interests and the
promotion of a private agenda. By encouraging public comments on the agency’s
salvage plan in support of her specific view, the appellant again sought to
promote her personal policy judgment and agenda above the judgment of agency
management. Thus, we agree with the administrative judge that the agency
proved the improper conduct charge. 9 See ID at 8-9.

9
In her petition for review, the appellant argues that the agency failed to prove a
relationship between the charged misconduct and the efficiency of the service. PFR
File, Tab 3 at 10. The administrative judge specifically addressed the existence of a
nexus between the appellant’s work-related misconduct and the efficiency of the federal
service. ID at 12-13. The appellant’s assertion on review does not demonstrate error in
the administrative judge’s well-reasoned decision. See Crosby, 74 M.S.P.R. at 106;
Broughton, 33 M.S.P.R. at 359; see also Parker v. U.S. Postal Service, 819 F.2d 1113,
1116 (Fed. Cir. 1987) (stating that there is sufficient nexus between an employee’s
conduct and the efficiency of the service where the conduct occurred in part at work).
10

The administrative judge correctly found the penalty within the tolerable limits of
reasonableness.
¶15 Where, as here, all of the agency’s charges have been 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); Douglas v. Veterans Administration, 5
M.S.P.R. 280, 306 (1981). In determining whether the selected penalty is
reasonable, the Board gives due deference to the agency’s discretion in exercising
its managerial function of maintaining employee discipline and efficiency.
Woebcke, 114 M.S.P.R. 100, ¶ 7. The Board recognizes that its function is not to
displace management’s responsibility or to decide what penalty it would impose
but to assure that management judgment has been properly exercised and that the
penalty selected by the agency does not exceed the maximum limits of
reasonableness. Id. Thus, the Board will modify a penalty only when it finds that
the agency failed to weigh the relevant factors or that the penalty the agency
imposed clearly exceeded the bounds of reasonableness. Id.
¶16 Here, the administrative judge found that the deciding official’s detailed
penalty analysis was appropriate and we agree. ID at 13-15; see IAF, Tab 4 at
13-21. The appellant’s misconduct was serious, although, as noted by the
administrative judge, the severity of the misconduct is somewhat lessened by the
lack of clear guidance on what information she could share with the OHV
community. 10 See ID at 14; see also IAF, Tab 4 at 13-16. The misconduct was
repeated over a course of several weeks, directly implicated the appellant’s

10
On review, the appellant cites a number of cases to support her argument that the
penalty should be reduced because, based on her brief federal career, she was naïve
about the agency’s conduct expectations and unaware of the consequences of her
actions. PFR File, Tab 3 at 12-14. As the administrative judge d id, we have considered
the lack of guidance to the appellant regarding what she could share with the OHV
community. See ID at 14.
11

official duties, generated additional work and caused disharmony within the
agency, caused her superiors to lose trust and confidence in her, and undermined
the agency’s reputation. 11 IAF, Tab 4 at 13-20; ID at 14; see Douglas, 5 M.S.P.R.
at 305. In addition, as a supervisor, the agency properly held the appellant to a
higher standard of conduct. IAF, Tab 4 at 16; ID at 13; see Edwards v. U.S.
Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010). The deciding official also
properly considered as mitigating factors the appellant’s lack of prior discipline
and superior performance ratings. IAF, Tab 4 at 16-17; see ID at 14.
¶17 In his analysis, the administrative judge also noted that the appellant’s 4
years of service was not especially lengthy and therefore was not a significant
mitigating factor. ID at 14; see Negron v. Department of Justice, 95 M.S.P.R.
561, ¶ 35 (2004) (finding, in a penalty analysis, that 8 years of service was not a
substantial period of service). Regarding the appellant’s claim that she was
treated more harshly than other employees, the administrative judge found that
the appellant failed to identify another employee who had engaged in similar
misconduct and the appellant has not shown error in that finding. ID at 14.
¶18 In sum, after careful consideration, we discern no error in the administrative
judge’s penalty analysis. While a significant penalty, under all of the attendant
circumstances, and giving appropriate deference to the agency’s role in managing

11
On review, the appellant also asserts that it is contradictory for the agency to argue
that it has lost trust and confidence in her because it issued her a Certificate of Merit 20
days after her last alleged improper email and 5 days after her supervisor counselled her
about her actions. PFR File, Tab 3 at 14-15. As the agency notes in its response, at the
time the Certificate of Merit was issued, the agency had not yet investigated the
appellant’s conduct and the disciplinary action was not initiated for many months. PFR
File, Tab 5 at 10. In addition, the appellant argues that d iscipline was unwarranted
because she was rehabilitated during the agency’s delay in initiatin g the discip linary
action. PFR File, Tab 3 at 15-16. The appellant cites nothing to support this theory.
We note that the Board has held that mitigation of a penalty is not warranted where the
agency could not have taken disciplinary action earlier and appellant failed to show
prejudice by the delay. Tamburello v. U.S. Postal Service, 45 M.S.P.R. 455, 471
(1990).
12

employee conduct and discipline, we cannot find that the agency’s imposed
penalty exceeds the tolerable limits of reasonableness.

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.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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
13

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, 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 Federal Circuit. 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2780656. Public record. Not legal advice.