Laurie Jolly v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LAURIE JOLLY, DOCKET NUMBER

Appellant, AT-0752-15-0013-I-1

v.

DEPARTMENT OF THE ARMY, DATE: April 15, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chuck R. Pardue, Esquire, and Shellana Welch, Esquire, Martinez,

Georgia, for the appellant.

Christopher M. Kenny, Esquire, Fort Gordon, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained her 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 the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. 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, 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 appellant, a GS-13 Health Systems Administrator, had been

experiencing difficulties for some time with pay and leave matters, apparently

because of a disagreement she had with management as to whether her work

schedule required her to work a set tour of duty each day. Initial Appeal File

(IAF), Tab 9 at 5. She had filed numerous equal employment opportunity (EEO)

complaints over these issues. On May 2, 2014, she went to see the Chief,

Medical Expense Performance Reporting System, regarding these matters.

During the meeting, the appellant expressed concerns about how her supervisors

had been treating her, became visibly upset, and, according to the Chief, made

some disturbing comments, including that she worked in a toxic environment with

toxic leadership and that she had written to her Congressman, asking “Must more

blood [] be shed before changes occur?” 2 She asked the Chief if she recalled the

2

In that April 7, 2014 letter, the appellant stated that she was being targeted for

mistreatment, harassed, and abused and that her life was in danger. She also asked “Is

blood shed required to stop the abuse? I hope the answer is ‘No!’” IAF, Tab 8 at 35.

She attached a newspaper article about the Fort Hood shooting, on which she had typed

several sentences urging the Congressman to read her documents and stating, inter alia,

that “thoughtless actions (or in-actions) taken by military leaders are often where the

deadly tragedies begin” and “let’s stop the violence!” Id. at 36.

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shootings at Camp Lejeune and Fort Hood. 3 After the appellant left, because the

appellant’s demeanor caused her concern, the Chief called her own supervisor,

relating that the appellant had mentioned that her first- and second-level

supervisors needed to be mindful or careful and leave her alone. At the Chief’s

supervisor’s suggestion, the Chief began to prepare a memorandum for the record.

The appellant returned to the Chief’s office on May 5, 2014, seeking to explain

what she had meant by blood being shed, stating that her family was bleeding

because of the issues with her pay. In the Chief’s view, the appellant was not

upset this time, but rather serious and very resolved, and, because this made the

Chief nervous, she contacted security. Id. at 33-34.

¶3 On June 16, 2014, the agency proposed to remove the appellant for Conduct

Unbecoming a Federal Employee–making inflammatory and/or menacing

comments reasonably placing fellow employees in fear. Id. at 28. After the

appellant submitted a written response, IAF, Tab 9 at 4-14, the agency issued a

decision finding the charge sustained and warranting the appellant’s removal,

IAF, Tab 8 at 22-23.

¶4 On appeal, the appellant claimed that her words were taken out of context

and that she never threatened anyone, but instead was seeking to prevent

outbreaks of violence at military installations. IAF, Tab 1. She argued that the

charge was not properly “classified” and that removal was too severe a penalty,

and she requested a hearing. Id. She later alleged that the agency’s action was in

retaliation for her protected EEO activity. Hearing Transcript (HT) at 5.

¶5 In her initial decision, the administrative judge first found that the agency

proved the charge of conduct unbecoming a Federal employee. IAF, Tab 26,

Initial Decision (ID) at 5-7. She found that the appellant’s comments about

bloodshed and the shootings at two other military installations implied violence

towards the two management officials she blamed for her problems at work and

3

The latter event had occurred just a few weeks earlier.

4

that they were an escalation of her attempts to get the agency to agree with her

regarding the work schedule she wanted. ID at 6. The administrative judge

further found that the appellant’s comments were examples of how a person can

resort to violence when they have a concern that is not resolved, that the

comments were inflammatory and/or menacing, and that they reasonably placed

her fellow employees in fear. ID at 6-7. The administrative judge next found that

there was a nexus between the appellant’s conduct and the efficiency of the

service. ID at 7. In addressing the penalty, the administrative judge found that

the deciding official thoroughly considered all of the relevant Douglas factors 4 in

determining that removal was a reasonable penalty for the misconduct at issue, ID

at 8, and, based on her own review of the Douglas factors, the administrative

judge concluded that the agency-imposed penalty did not exceed the bounds of

reasonableness, ID at 9. Finally, regarding the appellant’s claim of retaliation for

protected EEO activity, the administrative judge found it undisputed that the

appellant had filed EEO complaints of which her supervisors were aware, but that

there was simply no evidence that the EEO activity had any impact on the

agency’s decision, and that Title VII is not a shield for an employee’s

misconduct. ID at 9-10. Accordingly, the administrative judge affirmed the

agency’s action. ID at 1, 10.

¶6 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3,

and the appellant has submitted a reply to the agency’s response, PFR File, Tab 4.

¶7 On review, the appellant challenges as erroneous the administrative judge’s

finding that the charge is sustained. PFR File, Tab 1 at 2-4. The appellant first

questions the administrative judge’s reliance on the testimony of her supervisors

that her comments were disturbing since neither was present when she made the

4

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

articulated a nonexhaustive list of factors, both aggravating and mitigating, that are

relevant to the penalty determination in adverse action cases.

5

comments. Id. at 3. However, inasmuch as the appellant has not denied making

the statements, her supervisors’ reactions to them are no less valid simply because

they did not hear them firsthand. The appellant’s first-line supervisor, the

proposing official, testified that, when he learned of the comments, he found them

very disturbing, perceiving that they were directed at him and some of his staff.

HT at 28-29. The appellant’s second-line supervisor, the deciding official,

testified that, in her view, the incident involved the safety and security of the

facility and the patients for whom she is responsible and that she felt it was

appropriate to immediately notify the authorities. HT at 59-60, 67.

¶8 The appellant also argues that the Chief to whom she made the comments

testified that she reported them as a precaution, not because she thought they

represented an immediate threat. PFR File, Tab 1 at 3. The testimony to which

the appellant refers occurred during an EEO hearing. HT at 20. During the

Board hearing, however, the Chief testified that she reported the comments to her

supervisor and to the police because she did perceive a threat. Id. Because the

agency did not charge the appellant with making a threat, the referenced

discrepancy in the Chief’s testimonies is not significant. She consistently

described the appellant as upset, crying, visibly shaken, and very nervous during

their meeting, HT at 13, and her own reaction as being very rattled, HT at 15, so

much so that she called her supervisor and prepared a memorandum for the

record, HT at 16. The Chief further testified that she remained concerned when

the appellant returned to see her a few days later, that, after she left, the Chief

asked a male colleague and her staff to let security know if the appellant again

returned, and that she herself contacted security, an action she had never taken in

her 25 years. HT at 17.

¶9 The appellant further argues on review that the administrative judge ignored

testimony from two individuals who did not believe the appellant was threatening

violence by her comments. PFR File, Tab 1 at 3-4. Those two witnesses were the

Criminal Investigator from the Police Provost Marshal’s Office who determined

6

that no “communicated threat” had been made, HT at 94, and a colleague of the

appellant’s who did not perceive her written comments as a threat, but rather as a

“normal” response to the “way she was being treated,” HT at 84. First, the

administrative judge’s failure to mention all of the evidence of record does not

mean that she did not consider it in reaching her decision. Marques v.

Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776

F.2d 1062 (Fed. Cir. 1985) (Table). In any event, the Criminal Investigator’s role

was to determine whether the appellant had made a threat as defined and

prohibited by Federal law, not to decide if there was cause to remove her from her

position. And, the appellant’s colleague is not in the appellant’s supervisory

chain, and thus her position on the significance of the appellant’s comments is

simply an opinion.

¶10 In sum, we agree with the administrative judge that the agency established

the conduct unbecoming charge by proving that the appellant committed the acts

in support of the broad label, Canada v. Department of Homeland Security,

113 M.S.P.R. 509, ¶ 9 (2010), and therefore she has not shown that the

administrative judge erred in sustaining the charge against her.

¶11 The appellant next argues on review that the agency violated her due

process rights because the proposing official testified that the deciding official

assisted him in writing the proposal notice. 5 PFR File, Tab 1 at 4-5. In fact, what

the proposing official testified to was that, although he never saw it, he thought

he learned about the appellant’s letter to Congressman Barrow from the deciding

official. HT at 46-47. Because an employee’s due process rights pertain to ex

parte information provided to, and known by, the deciding official, Solis v.

Department of Justice, 117 M.S.P.R. 458, ¶ 7 (2012), the appellant’s claim

5

Ordinarily the Board will not consider a claim raised for the first time on review.

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). However, because

the appellant asserts that this information was not known to her until the hearing, PFR

File, Tab 1 at 5, we have considered it.

7

regarding the proposing official does not support a violation. The appellant

further asserts that the deciding official was too involved in the case to render an

impartial decision because she was a target of the appellant’s comments and knew

that she had filed numerous EEO complaints naming her. PFR File, Tab 1 at 5.

An employee does have a due process right to have an unbiased decision maker

adjudicate her case. Martinez v. Department of Veterans Affairs, 119 M.S.P.R.

37, ¶ 6 (2012). However the appellant has failed to assert specific allegations

indicating that the agency’s choice of the deciding official made the risk of

unfairness intolerably high. See id., ¶¶ 7-8 (explaining that a deciding official’s

awareness of background information concerning the appellant, his concurrence

in the desirability to take an adverse action, or his predisposition to impose a

severe penalty does not disqualify him from serving as a deciding official on due

process grounds); see also Norris v. Securities & Exchange Commission, 675 F.3d

1349, 1354 (Fed. Cir. 2012) (finding that it is not required that a deciding official

be unfamiliar with the employee, the facts of the case, or the employee’s prior

conduct).

¶12 Finally, the appellant challenges the administrative judge’s finding that

removal is a reasonable penalty for the sustained charge. PFR File, Tab 1 at 5-9.

In this regard, the appellant first contends that her alleged misconduct was

mischaracterized as conduct unbecoming a Federal employee, which carries a

penalty of a 1-day suspension to removal for a first offense, whereas it should

have been characterized as creating a disturbance resulting in an adverse effect on

morale, which carries a penalty from a written reprimand to a 5-day suspension

for a first offense, or threatening or attempting to inflict bodily harm without

bodily contact, which carries a penalty from a written reprimand to a 14-day

suspension for a first offense. Id. at 5-6; IAF, Tab 5, Appellant’s Exhibit Z at

13-19. It is well established, however, that the Board is required to review the

agency’s decision on an adverse action solely on the grounds invoked by the

8

agency and may not substitute what it considers to be a more adequate or proper

basis. Walker v. Department of the Army, 102 M.S.P.R. 474, ¶ 4 (2006).

¶13 The appellant further argues that, in determining to impose removal, the

deciding official failed to consider mitigating factors. PFR File, Tab 1 at 6-9.

Where, as here, the Board sustains an agency’s charge, it will defer to the

agency’s penalty determination unless the penalty exceeds the range of allowable

punishment specified by statute or regulation, or unless the penalty is “so harsh

and unconscionably disproportionate to the offense that it amounts to an abuse of

discretion.” Batten v. U.S. Postal Service, 101 M.S.P.R. 222, ¶ 9 (quoting Parker

v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987)), aff’d, 208 F. App’x

868 (Fed. Cir. 2006). That is because the employing agency, and not the Board,

has primary discretion in maintaining employee discipline and efficiency.

Balouris v. U.S. Postal Service, 107 M.S.P.R. 574, ¶ 6 (2008), aff’d, No.

2008‑3147, 2009 WL 405827 (Fed. Cir. 2009); Batten, 101 M.S.P.R. 222, ¶ 9.

The Board will not displace management’s responsibility, but instead will ensure

that managerial judgment has been exercised properly. Balouris, 107 M.S.P.R.

574, ¶ 6; Batten, 101 M.S.P.R. 222, ¶ 9. Mitigation of an agency-imposed

penalty is appropriate only where the agency failed to weigh the relevant factors

or where the agency’s judgment clearly exceeded the limits of reasonableness.

Balouris, 107 M.S.P.R. 574, ¶ 6; Batten, 101 M.S.P.R. 222, ¶ 11. The deciding

official need not show that he considered all the mitigating factors, and the Board

will independently weigh the relevant factors only if the deciding official failed

to demonstrate that he considered any specific, relevant mitigating factors before

deciding on a penalty. Balouris, 107 M.S.P.R. 574, ¶ 6; Batten, 101 M.S.P.R.

222, ¶ 11.

¶14 In determining to uphold the proposed penalty of removal, the deciding

official weighed the Douglas factors, finding that: the appellant’s remarks

constituted a serious offense, causing reasonable fear to the Chief and her

supervisors; despite the appellant’s 22 years of civilian service, her performance

9

had been unreliable during the rating year; she had lost the confidence of her

supervisor and of key leadership; removal is within the range of penalties under

the agency’s Table of Penalties; the appellant’s conduct reflected poorly on the

morale of her coworkers; common sense dictates that her menacing comments

were not acceptable, especially given the proximity in time to the mass shooting

she referenced, and that, due to the sensitive nature of her comments, security

was contacted and she was questioned by the Provost Marshal; her comments

exemplify her inability to work with others and a lack of respect for authority and

the safety and well-being of coworkers and patients, such that there was no

reasonable potential for her rehabilitation; and there were no mitigating

circumstances sufficient to overcome the seriousness of her misconduct, and no

alternative means to deter such misconduct in the future. IAF, Tab 8 at 24-25;

HT at 61-63.

¶15 On review, the appellant asserts that the deciding official failed to consider

the fact that she had significant service with no prior discipline, that there was

tension between her and her supervisor, that she had sought, but been denied,

“medical accommodation,” that the incident was an isolated one, and that her

performance was good or, in the alternative, not a relevant consideration. PFR

File, Tab 1 at 6-9. As noted, however, the deciding official did consider the

appellant’s 22 years of service. IAF, Tab 8 at 24. Although she did not

acknowledge the tension that may have existed between the appellant and her

supervisors, given that her numerous EEO complaints specifically named them,

the deciding official did find that there were no mitigating circumstances

sufficient to overcome the seriousness of the appellant’s misconduct. Id.

Further, the record reflects that the agency did not deny, but rather determined to

hold in abeyance, the appellant’s request for accommodation, pending her return

10

to work, 6 IAF, Tab 5, Exhibit V at 38, and that, shortly afterwards, the agency

proposed her removal. The fact that the appellant’s misconduct was an isolated

incident does not necessarily support the imposition of a lesser penalty. See, e.g.,

Wiley v. U.S. Postal Service, 102 M.S.P.R. 535, ¶¶ 16-18 (2006), aff’d,

218 F. App’x 1001 (Fed. Cir. 2007). And, because the employee’s past work

record is a factor for consideration in a penalty determination, Douglas, 5

M.S.P.R. at 305, it was not inappropriate for the deciding official to mention that

the appellant’s performance had been unreliable, IAF, Tab 8 at 24, HT at 30, 35-

36. In sum, we find that the agency weighed the relevant factors and that its

judgment did not exceed the limits of reasonableness. Therefore, its penalty

determination is entitled to deference. Balouris, 107 M.S.P.R. 574, ¶ 6; Batten,

101 M.S.P.R. 222, ¶ 11.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS 7

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

6

Shortly after the incident in question, the appellant was out of work on sick leave for

approximately 6 weeks. HT at 52 (testimony of proposing official).

7

In the initial decision, the administrative judge provided the appellant with

nonmixed‑case appeal rights. ID at 11, 14-15. Because the appellant raised retaliation

for protected EEO activity as an affirmative defense, however, this is a mixed-case

appeal. Caros v. Department of Health & Human Services, 122 M.S.P.R. 231, ¶ 20

(2015). Accordingly, we have provided the proper appeal rights in this Final Order.

11

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 U.S. 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

12

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.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.