The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
IRMA L. NEVAREZ, DOCKET NUMBER
Appellant, SF-0752-14-0538-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 27, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Pedro Gonzalez, Victorville, California, for the appellant.
Larry F. Estrada, Esquire, Los Angeles, 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 her 30-day suspension. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as
expressly modified by this Final Order concerning one of the specifications
supporting the charge of absence without leave (AWOL), see infra ¶ 5 n.3, we
AFFIRM the initial decision.
¶2 The agency suspended the appellant for 30 days from her position as an
equal opportunity assistant on charges of AWOL, failure to follow instructions,
and failure to follow call-in procedures. Initial Appeal File (IAF), Tab 18 at
55-57 (letter of decision), 79-84 (notice of the proposed adverse action). In
support of each of its charges, the agency relied upon multiple specifications
detailing specific dates on which the appellant failed to secure approved leave in
advance of her absences from work, failed to submit leave requests within an hour
of her late arrival at work pursuant to the written instructions of her supervisor,
and failed to contact her supervisor by 9 :00 a.m. on dates when she would not be
able to report to duty or would be reporting to duty late. 2 Id. at 79-84. The
deciding official sustained all but one specification in support of the AWOL
charge and one specification supporting the failure to follow call-in procedures
2
The agency’s time and attendance procedures permitted the appellant to work a
flexib le 8-hour schedule; she could begin working between 6:30 a.m. and 9:00 a.m., and
complete work between 3:00 p.m. and 5:30 p.m. IAF, Tab 18 at 79.
3
charge, id. at 50-51, and he imposed the proposed 30-day suspension, id. at
55-57.
¶3 The appellant filed a timely appeal of her suspension and did not request a
hearing. IAF, Tab 1. The administrative judge issued an initial decision
sustaining each of the charges, although she did not sustain four of the eight
specifications supporting the charge of failure to follow call-in procedures, and
she sustained the 30-day suspension in light of the appellant’s past disciplinary
history and the repeated nature of the misconduct at issue. IAF, Tab 47, Initial
Decision (ID) at 4-11, 17-19. In her initial decision, the administrative judge also
denied the appellant’s affirmative defenses of failure to accommodate and
disparate treatment based on disability, and she also found that the appellant
failed to raise a whistleblower reprisal affirmative defense in a timely manner.
ID at 4 n.3, 16. The appellant has filed a petition for review arguing that the
administrative judge should not have sustained the AWOL charge and that the
agency failed to accommodate her disability. Petition for Review (PFR) File, Tab
3 at 3-4. The agency has filed a response in opposition to the petition for review.
PFR File, Tab 8.
The agency proved its charges of AWOL, failure to follow instructions, and
failure to follow call-in procedures.
¶4 To prove a charge of AWOL, the agency must show that the employee was
absent and that either the absence was not authorized or leave was properly
denied. Dobert v. Department of the Navy, 74 M.S.P.R. 148, 150 (1997). To
prove a charge of failure to follow instructions, the agency must establish that the
employee (1) was given proper instructions, and (2) failed to follow those
instructions, without regard to whether the failure was intentional or
unintentional. Powell v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 5 (2014).
Similarly, an agency may discipline an employee for failure to follow call-in
procedures (also known as leave-requesting procedures) provided she is clearly
on notice of the agency’s leave-requesting requirements and the likelihood of
4
discipline based on her continued failure to comply. Valenzuela v. Department of
the Army, 107 M.S.P.R. 549, ¶ 9 (2007).
¶5 The administrative judge found that the agency established that the
appellant was absent from work on multiple occasions between March 2013 and
January 2014 without previously obtaining leave. ID at 4-7. The record below
demonstrates that the appellant arrived for work after 9:00 a.m. on eight separate
occasions during this timeframe without first obtaining approved leave, and that
on one occasion she failed to report to duty without obtaining advanced approval.
See IAF, Tab 18 at 86-127 (denied leave requests). In each instance, moreover,
the agency denied her late requests for leave, citing her pattern of unscheduled
leave usage and mission needs. E.g., id. at 86. We agree with the administrative
judge that the appellant was absent from work on the dates in question and that
her absences were not approved. 3 ID at 6-7. The Board has found that whether
an employee has an accrued annual leave balance is irrelevant to the question of
whether the agency abused its discretion in denying an employee’s request for
leave; an employee must request approval to take leave in accordance with
agency policies, and she cannot simply demand it. See Roby v. Department of
Justice, 59 M.S.P.R. 426, 429 (1993). Additionally, we find the denials of the
appellant’s leave requests were reasonable where the appellant had a pattern of
arriving for work late and requesting either unscheduled leave or leave without
pay to cover her unscheduled absences. 4 See Dobert, 74 M.S.P.R. at 150
3
Upon reviewing the record, we find that the appellant received approval for her
absence from work for 15 m inutes on January 9, 2014. See IAF, Tab 19 at 55.
Although the agency argued below that the appellant only received approved leave for
January 8, 2014, the appellant’s requests for leave for both dates were included on the
same leave request form, which her supervisor approved. I d. We accordingly MODIFY
the initial decision and do NOT SUSTAIN the agency’s ninth specification of the
agency’s AWOL charge regarding the appellant’s absence without leave on the morning
of January 9, 2014. See IAF, Tab 18 at 80.
4
We emphasize that the appellant worked a flexible 8-hour schedule and could arrive
for work between 6:30 a.m. and 9:00 a.m. IAF, Tab 18 at 79. We find the agency’s
denial of the appellant’s unscheduled leave requests for absences occurring after
5
(although annual leave is an entitlement, it is subject to the agency’s right to fix
the time at which it is taken). The administrative judge’s initial decision
sustaining the AWOL charge is AFFIRMED.
¶6 We also agree with the administrative judge that the agency proved its
charges of failure to follow instructions and failure to follow call-in procedures.
ID at 7-11. In December 2012, the appellant’s immediate supervisor instructed
the appellant to submit her leave requests within the first hour of her late arrival,
and the record demonstrates that the appellant submitted leave requests beyond
this 1-hour timeframe on eight separate occasions between March 2013 and
January 2014. 5 IAF, Tab 18 at 86-127. The Board has held that employees must
obey orders that are lawful on their face, and we have no reason to doubt the
propriety of the agency’s requirement that the appellant submit a leave request
within an hour of her late arrival to work. See Thompson v. U.S. Postal
Service, 50 M.S.P.R. 41, 45 (1991) (employees must obey lawful orders), aff’d,
956 F.2d 1065 (Fed. Cir. 1992) (Table). We agree, moreover, that the appellant
also failed to abide by the agency’s call-in procedures on the dates sustained by
the administrative judge when she did not call in to report her absences from
work by 9:00 a.m., and the appellant has presented nothing on review which
would undermine the administrative judge’s findings. 6 ID at 9-11. We thus
AFFIRM the administrative judge’s initial decision sustaining the charges of
failure to follow instructions and failure to follow call-in procedures. 7
9:00 a.m. reasonable in light of the flexib ility afforded to the appellant to set her
schedule on a daily basis.
5
The appellant’s leave requests contain electronic signatures reflecting the time and
date she signed the requests for leave. See, e.g., IAF, Tab 18 at 86-87 (leave request for
March 25, 2014, submitted on March 26, 2014, at 6:01 p.m.).
6
The agency has not challenged the administrative judge’s decision not to sustain four
of the supporting specifications for this charge.
7
In some instances the Board has merged the charges of AWOL and failure to follow
instructions or failure to follow leave-requesting procedures. See, e.g., Westmoreland
v. Department of Veterans Affairs, 83 M.S.P.R. 625, ¶ 6 (1999), overruled on other
6
The appellant did not prove her disability-based affirmative defenses.
¶7 In her initial decision, the administrative judge found that the appellant
failed to prove her claims that the agency denied her a reasonable accommodation
and treated her differently based on her disability. ID at 11-16. An agency is
required to make a reasonable accommodation to the known physical and mental
limitations of an otherwise qualified individual with a disability unless the agency
can show that the accommodation would cause an undue hardship on its business
operations. Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13
(2014); 29 C.F.R. § 1630.9(a). Reasonable accommodations include
modifications to the manner in which a position is customarily performed in order
to enable a qualified individual with a disability to perform the essential functions
of the position. Miller, 121 M.S.P.R. 189, ¶ 13. In order to establish a disability-
based failure to accommodate, an employee must show that: (1) she is an
individual with a disability; (2) she is a qualified individual with a disability, as
defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a
reasonable accommodation. Miller, 121 M.S.P.R. 189, ¶ 13.
¶8 We agree with the administrative judge that although the appellant is
disabled within the meaning of the Rehabilitation Act, there is no evidence in the
record supporting her claim that the agency denied her a reasonable
accommodation when it suspended her for 30 days based upon several
leave-related infractions. ID at 12-13. The record reflects that the agency
accommodated the appellant on multiple occasions by permitting her to take
grounds, Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011). The Board has
merged these charges where the charge of AWOL is based solely on the appellant’s
failure to follow the agency’s leave-requesting procedures. Id. Here, however, the
agency relied upon different dates for its charges of AWOL and failure to follow call-in
procedures, thus making merger of the charges inapplicable. See IAF, Tab 18 at 79-83.
Additionally, although the charges of failure to follow instructions and AWOL are
based on many, but not all, of the same dates, these charges contain different elements
of proof, thus also precluding their merger. See Mann v. Department of Health &
Human Services, 78 M.S.P.R. 1, 7 (1998) (merger inapplicab le where proof of one
charge does not automatically prove another charge).
7
unscheduled leave when she was absent or late due to her disabling conditions,
and the deciding official did not rely upon such instances in imposing the
proposed suspension. E.g., IAF, Tab 18 at 50-51 (the deciding official’s decision
not to sustain certain specifications of AWOL and failure to follow call-in
procedures possibly related to the appellant’s medical conditions). The
appellant’s belated leave requests on the remainin g dates, however, do not
suggest that her absences were caused or otherwise related to her medical
conditions, and we agree with the administrative judge, that under such
circumstances, the agency was not required to accommodate the appellant by
approving her late requests for unscheduled leave. See White v. Department of
Veterans Affairs, 120 M.S.P.R. 405, ¶ 12 (2013) (citing case law for the
proposition that a requested accommodation must be effective); IAF, Tab 18 at 98
(late request for a delayed arrival due to traffic), 106 (late request for a delayed
arrival due to the need to register a car), 110 (late request for a delayed arrival
due to traffic). We further agree with the administrative judge that the
appellant’s medical evidence, which was submitted to the agency shortly before a
decision was issued on her proposed suspension, does not contain a request for an
accommodation or provide a medical justification for her absences on the dates
cited in the notice of the proposed suspension. 8 See Clemens v. Department of the
Army, 120 M.S.P.R. 616, ¶¶ 14-15 (2014) (appellant’s medical documentation did
not contain a request for an accommodation); IAF, Tab 36 at 113-16.
¶9 We also agree that the appellant did not carry her ultimate burden of
proving that her 30-day suspension was motivated by her disabled status. ID at
8
Th is evidence consists of a Family and Medical Leave Act certification reflecting that
the appellant received medical treatment on several dates in 2012, 2013, and 2014, and
that she may need to be absent from work during ep isodic flare-ups of her condition.
See IAF, Tab 36 at 114-15. None of the dates included on the certification, however,
are cited in the specifications supporting the agency’s charges. Compare id. at 114,
with IAF, Tab 18 at 79-84. As explained above, moreover, there is no suggestion that
the appellant’s absences from work on the dates cited in the proposed suspension were
related to episodic flare-ups.
8
13-16. Where, as here, the record is complete, the Board has found that it is
unnecessary to follow the traditional burden-shifting order of analysis when
considering an affirmative defense of disparate treatment; rather, at this stage, the
inquiry shifts from whether the appellant has established a prima facie case of
discrimination to whether she has demonstrated by a preponderance of the
evidence that the agency’s reason for taking the challenged action was a pretext
for discrimination. 9 See Wingate v. U.S. Postal Service, 118 M.S.P.R. 566, ¶ 4
(2012). In rejecting the appellant’s disability-based disparate treatment
affirmative defense, the administrative judge found that the appellant’s proffered
comparator was not similarly situated because she had a less-severe disciplinary
history, and she further found that neither the proposing nor the deciding official
harbored any animus toward the appellant based on her disability. ID at 15-16.
We agree that the proffered comparator’s less-severe disciplinary history
sufficiently differentiates the appellant from the proposed comparator, and that
the agency has presented a legitimate, nondiscriminatory reason for issuing the
appellant a 30-day suspension based on her repeated leave-related infractions. ID
at 15. We also find that there is no other evidence in the record suggesting that
the agency’s action was motivated by the appellant’s disability—such as an
unexplained inconsistency in the application of the agency’s policies, or some
evidence that the proposing or deciding officials lied—which would call into
doubt the reasoning for the agency’s action. See Fox v. Department of the
Army, 120 M.S.P.R. 529, ¶ 36 (2014).
9
The Board has applied this princip le when an appellant requests a hearing and when
an appellant requests an adjudication on the written record. See Prather v. Department
of Justice, 117 M.S.P.R. 137, ¶ 37 (2011) (assessing whether an appellant carried the
ultimate burden on a discrimination defense after the administrative judge affirmed the
charge of m isconduct upon a review of the written record).
9
The agency established nexus and the reasonableness of its penalty.
¶10 The Board has recognized a nexus between an employee’s failure to follow
leave-requesting procedures and AWOL status and the efficiency of an agency’s
operational mission. See McNab v. Department of the Army, 121 M.S.P.R. 661,
¶ 4 n.3 (2014); ID at 17. Under these facts, moreover, where all of the agency’s
charges have been sustained, the Board’s role is limited to reviewing whether the
agency-imposed penalty falls within the tolerable limits of reasonableness. See
Luciano v. Department of the Treasury, 88 M.S.P.R. 335, ¶ 13 (2001), aff’d, 30 F.
App’x 973 (Fed. Cir. 2002). We agree with the administrative judge that, given
the appellant’s disciplinary history, the frequent nature of her misconduct, and the
limited possibility of rehabilitation, the appellant’s 30-day suspension falls within
the limits of reasonableness. ID at 18-19. Although we have not sustained one
specification of AWOL on petition for review, we find that the absence of this
one specification does not otherwise render the 30-day suspension unreasonable.
See Luciano, 88 M.S.P.R. 335, ¶ 13 (an agency’s failure to sustain all supporting
specifications may render a penalty unreasonable). The appellant’s 30-day
suspension is therefore AFFIRMED.
The appellant’s remaining arguments fail to present a basis for overturning the
initial decision.
¶11 We have considered the appellant’s remaining arguments on petition for
review and find that they fail to present a basis for overturning the initial
decision. Specifically, we find no merit to her argument that she was denied a
right to a hearing because she did not request a hearing when she filed her initial
appeal, and she did not object to the administrative judge’s prehearing conference
summary and order explaining that the appellant had waived her right to a
hearing. See IAF, Tabs 1, 28. We also find unpersuasive the appellant’s attempt
to raise an affirmative defense of whistleblower reprisal on petition for review,
see PFR File, Tab 3 at 4-5, and we further agree with the administrative judge
that the appellant’s efforts to raise such a claim below were untimely, ID at 4 n.3.
10
The agency’s letter of decision imposing the 30-day suspension provided the
appellant a clear explanation of her appeal rights, including the preclusive effect
of her election of remedies, and she did not raise an affirmative defense of
whistleblower reprisal in her initial appeal. See IAF, Tab 18 at 56-57 (notice of
election of remedies in letter of decision), Tab 1. The appellant, moreover, did
not raise such a defense before the prehearing conference pursuant to 5 C.F.R.
§ 1201.24(b), and we agree with the administrative judge that this allegation was
not asserted in a timely manner. See IAF, Tab 35 (order extending the close of
record until October 9, 2014), Tab 37 (appellant’s facsimile submission dated
October 10, 2014).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request further review of this final decision.
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
11
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
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. 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 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 the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
of appeals must receive your petition for review within 60 days after the date of
12
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.
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 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.