Opinion

Jacqueline Jones v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Feb 6, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

stating that the Board must defer to an administrative judge’s determinations when they are “necessarily intertwined” with an analysis of the witness’s demeanor

How later courts described this case

stating that the Board must defer to an administrative judge’s determinations when they are “necessarily intertwined” with an analysis of the witness’s demeanor

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JACQUELINE M. JONES, DOCKET NUMBER

Appellant, CH-0752-15-0604-I-1

UNITED STATES POSTAL SERVICE, DATE: February 6, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Glenn L. Smith, Esquire, Grand Rapids, Michigan, for the appellant.

Deborah L. Lisy, Esquire, Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

sustained the agency’s removal action. Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

interpretation of statute or regulation or the 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. 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).

BACKGROUND

¶2 The appellant was a Supervisor of Distribution Operations, EAS-17,

assigned to the International Service Center and detailed to the agency’s Cardiss

Collins Processing and Distribution Center in Chicago, Illinois. Initial Appeal

File (IAF), Tab 9 at 42-43, 227, Tab 16 at 79. She was assigned to Tour 3 and

generally arrived around 2:30 p.m. Hearing Transcript (HT) at 382 (testimony of

the appellant). S.W. was a Casual Mail Handler Assistant at Cardiss Collins, who

called the appellant “Mom” or “God Mom.” IAF, Tab 16 at 31, 89; HT at 329

(testimony of the appellant). She was assigned to Tour 2 and was scheduled to

report at 1:00 p.m. IAF, Tab 16 at 88-91. When S.W. began having attendance

issues, the appellant informed another Tour 3 supervisor that S.W. was her

goddaughter and expressed an interest in ensuring S.W. remained employed

despite attendance issues. HT at 213 (testimony of T.R.).

¶3 The acting Manager of Distribution Operations on Tour 2 regularly ran

activity reports concerning her employees, allowing her to verify whether they

were performing duties for the time they were paid. HT at 139-40 (testimony of

P.M.). In doing so, she noticed the appellant was consistently entering S.W.’s

time in the Time and Attendance System (TACS) without S.W. being present.

IAF, Tab 9 at 51; HT at 139-41 (testimony of P.M.). After confirming S.W.’s

absence with other supervisors, she also noticed that the appellant entered S.W.’s

time in TACS right before the end of the pay period. HT at 140. As a result, the

agency began an investigation into the appellant’s actions and moved S.W. to a

work area on another floor away from the appellant’s supervision; however, the

appellant continued entering clock rings in TACS for S.W. HT at 113-14

(testimony of M.G.), 389-90 (testimony of the appellant). 2

¶4 On March 21, 2015, the agency issued a notice of proposed removal on the

charge of “Improper Recording and Adjustment of an E mployee’s Time and Pay

Level In [] TACS” based on two specifications. IAF, Tab 9 at 57-65.

Specification 1 alleged that the appellant manually input over 50 separate clock

rings for S.W. in TACS on various dates between August and December 2014

without verifying S.W.’s attendance and without a Postal Service Form 1260

(PS-1260). Id. at 57-60. Specification 2 generally alleged that the appellant

manually entered and approved a higher pay rate for S.W. without authorization

on at least 27 separate occasions on various dates between Augus t and

October 2014 without a PS-1723. Id. at 60-61. After the appellant responded

orally and in writing to the proposed removal, the deciding o fficial sustained the

charge and removed the appellant, effective July 24, 2015. Id. at 42-48; IAF,

Tab 16 at 79-83.

¶5 The appellant filed an appeal with the Board, IAF, Tab 1, disputing the

alleged facts and asserting that it was not common practice at Cardiss Coll ins to

complete PS-1260s and PS-1723s, IAF, Tab 15 at 2-10. After a hearing, the

administrative judge issued an initial decision sustaining both specifications and

A clock ring is an entry of relevant times that employees on duty must record in their

time and attendance records to be accurately paid. Employees at Cardiss Collins record

the following four clock rings per shift: begin tour, out to lunch, return from lunch, and

end tour. HT at 14-15 (testimony of P.S.).

affirming the removal. IAF, Tab 38, Initial Decision (ID) at 5-17, 20-17.

Regarding Specification 1, she found that, because the appellant was not present

at the facility during S.W.’s start time, did not check with S.W.’s supervisors

before entering S.W.’s time into TACS, and took no other reasonable steps to

determine whether S.W. was at work, the appellant improperly recorded and

adjusted S.W.’s time in TACS. ID at 10. She also found that the agency

demonstrated that PS-1260s were commonly used to document clock ring

adjustments and that the appellant failed to use them for any of the time entries.

ID at 10-11. Regarding Specification 2, the administrative judge found that the

agency also had met its burden of showing by preponderant evidence that the

appellant improperly entered higher-level pay for S.W. ID at 16-17.

¶6 The appellant has filed a petition for review arguing that the administrative

judge misconstrued the charge. Petition for Review (PFR) File, Tab 5 at 6 -9. She

also argues that the agency failed to prove both that Cardiss Collins required the

use of PS-1260s and that S.W. was not at work during the times for which the

appellant gave her credit. Id. at 9-12. Finally, she challenges the appropriateness

of the penalty of removal. Id. at 12-21. The agency has filed an opposition to the

petition, to which the appellant has filed a reply. PFR File, Tabs 8, 11.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly construed the charge.

¶7 In determining how charges are to be construed, the Board will examine the

structure and language of the proposal notice. Tom v. Department of the Interior,

97 M.S.P.R. 395, ¶ 17 (2004). In this regard, an adverse action charge usually

consists of two parts: (1) a name or label that generally characterizes the

misconduct; and (2) a narrative description of the actions that constitute the

misconduct. Walker v. Department of the Army, 102 M.S.P.R. 474, ¶ 7 (2006).

The Board may not split a single charge into several independent charges and

then sustain one of the newly formulated charges, which represents only a portion

of the original. Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed.

Cir. 1990). However, the prohibition against charge splitting depends on whether

the charge is based on a single act or on more than one act. Walker, 102 M.S.P.R.

474, ¶ 7. A charge that is based on more than one act can be divided into

multiple specifications or charges, each corresponding to the separate acts

alleged. Id. Here, appellant’s claim that the administrative judge improperly

construed the charge is twofold. First, the appellant argues that the

administrative judge improperly separated the acts of misconduct outlined in the

charge. PFR File, Tab 5 at 6-7. Second, the appellant argues that the

administrative judge erred in concluding that she improperly “adjusted” S.W.’s

time in TACS. Id. at 7-9. We find that neither argument has merit.

Separation of acts of misconduct

¶8 The appellant argues that the administrative judge improperly relied on

Fairley v. U.S. Postal Service, 63 M.S.P.R. 545 (1994), to allow the agency to

split the charge into two specifications. PFR File, Tab 5 at 6; ID at 5 n.1. In

Fairley, the Board held that, when a single charge contains two separate acts of

misconduct that are not dependent on each other and do not comprise a single

inseparable event, each distinct element may be sustained as a separate charge.

63 M.S.P.R. at 548-49. The appellant argues that the Board’s holding in Fairley

is inconsistent with the court’s ruling in Burroughs and encourages the Board to

reverse its position in Fairley. PFR File, Tab 5 at 6-7.

¶9 The court in Burroughs compared the facts of that case, which involved one

charge with multiple elements, to a hypothetical situation in which more than one

event or factual specification is set out to support a single charge. Burroughs,

918 F.2d at 172. This is precisely the situation that presented in Fairley, which

ultimately relied on Burroughs in arriving at its conclusion. Fairley, 63 M.S.P.R.

at 547-49; see Alvarado v. Department of the Air Force, 103 M.S.P.R. 1, ¶¶ 15-16

(2006) (discussing the interplay between the holdings in Burroughs and Fairley),

aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d, 490 F. App’x 932 (10th Cir.

2012). Therefore, these two holdings are not inconsistent with one another but

rather address two different structures of a single charge. Thus, we find no

reason to revisit our holding in Fairley.

“Adjustment” of time in TACS

¶10 The appellant also argues that the administrative judge erred in interpreting

the language of the charge when she found that the appellant improperly adjusted

S.W.’s TACS report to show that she was working. PFR File, Tab 5 at 7 -9. The

appellant argues that she only “entered” S.W.’s time and did not “adjust” it, id.

at 7-8, a position that the administrative judge found to be “disingenuous,” ID

at 12. On review, the appellant relies on testimony from her supervisor to

demonstrate the difference between “entering” and “adjusting” time. PFR File,

Tab 5 at 8-9. Upon our review of the hearing transcript, however, her supervisor

never testified about what it meant to “adjust” a TACS report. HT at 100-30

(testimony of M.G.). Rather, she testified regarding her understanding of what it

meant to “enter,” “alter,” or “change” a TACS report. HT at 131-32 (testimony

of M.G.). Given that the appellant’s argument relies on a technical interpretation

of the word “adjust,” and her proffered evidence of the appropri ate interpretation

of that does not include the word itself, we find this claim to be unpersuasive.

¶11 Further, because this is a narrative charge, it must be viewed in light of the

accompanying specifications and circumstances and should not be technicall y

construed. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 14 (2013).

Here, the narrative in the proposal notice mak es clear that, when the appellant

input incorrect entries, she thereby adjusted or changed the TACS report to reflect

that S.W. worked hours that she did not work. IAF, Tab 9 at 57 -60. The

administrative judge found that, although the appellant may have “input” or

“entered” S.W.’s time, the reality is that she adjusted or changed the TACS report

to show that an employee was working. ID at 12. We agree. When the appellant

input the incorrect entries, she did “adjust” the time, changing it from what

otherwise would have resulted in an error in the TACS report and no pay for an

employee who was not working, to an entry that resulted in what looked like an

errorless TACS report and pay for an undeserving employee. As such, we find

the appellant’s semantic distinction to be unconvincing. See Cole v. Department

of the Air Force, 120 M.S.P.R. 640, ¶ 8 (2014) (stating that an agency is required

to prove only the essence of its charge).

The agency proved its charge by preponderant evidence.

¶12 Generally, an agency is required to prove its charges in an adverse action

appeal by preponderant evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of

the evidence is that degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). On

review, the appellant disputes the administrative judge’s fin dings that the agency

proved that completing a PS-1260 was required and that S.W. was not working

during the times that the appellant recorded for her, and thus, the TACS entries

were improper. 3

The majority of the appellant’s petition for review challenges the administrative

judge’s findings concerning Specification 1. However, the appellant appears to

summarily challenge the administrative judge’s findings regarding Specification 2.

PFR File, Tab 5 at 15-16. She disagrees with the administrative judge’s “conclusions

regarding the facts supporting this allegation” and reiterates hearing testimony and

evidence that previously was considered by the administrative judge. Id. The

administrative judge found that the agency proved that the appellant entered higher-

level pay on S.W.’s TACS without formal authorization. ID at 16 -17. We find that the

appellant’s generalized assertions on review concerning Specification 2 amount to

nothing more than mere disagreement with the administrative judge’s conclusions, and

we find no basis to disturb these findings. See, e.g., Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge’s

findings when she considered the evidence as a whole, drew appropriate inferences, and

made reasoned conclusions); Broughton v. Department of Health & Human Services ,

33 M.S.P.R. 357, 359 (1987) (same).

Use of a PS-1260

¶13 The appellant argues that she was not required to complete a PS-1260

following an adjustment of a TACS entry and that any claim that she was required

to complete one contradicts agency policy. PFR File, Tab 5 at 10-11. The

appellant points to the agency’s F-21 Handbook, which permits supervisors to

manually enter missing clock rings according to the supervisor’s best estimate of

the time that the clock rings would have been recorded and does not mention a

PS-1260. Id. at 9-10. She also argues that on the back of the form is a statement

indicating that its completion is voluntary. Id. at 10-11. Finally, she argues that

she followed the lead of other coworkers who did not use a PS-1260. Id. at 11.

¶14 The administrative judge found that the use of PS-1260s was customary for

record-keeping purposes when an employee does not have a time card and there is

a clock ring error and that the appellant did not use any PS-1260s when recording

S.W.’s time. ID at 10-11. In making this finding, she relied on the testimony of

at least four witnesses. ID at 11-12. The appellant’s supervisor testified that the

form is a standard Postal Service form that was available on the agency’s website

and should be issued to anyone without a time card when entering time on their

behalf. HT at 103 (testimony of M.G.). She also testified that she specifically

mentioned the form in an email to the appellant. Id. at 104-05; IAF, Tab 16

at 66-67. Two supervisors, one of whom was another Tour 3 supervisor similar to

the appellant, testified that they used the forms when employees were missing

clock rings. HT at 173 (testimony of T.A.), 210-12, 215 (testimony of T.R.). A

fourth witness testified that, although she has entered time without a PS-1260, she

would always obtain one afterwards. HT at 156-57 (testimony of P.M.).

¶15 The administrative judge additionally found that the coworker relied upon

by the appellant to bolster her assumption that PS-1260s were not used also was

removed in 2015 on the charge of “Improper Record and Adjustment of an

Employee’s Time.” ID at 11; HT at 246 (testimony of D.R.), 307-08 (testimony

of L.A.). She also did not credit the appellant’s testimony that supervisors on

Tour 3 at Cardiss Collins did not use the form. ID at 11 -12; HT at 345-46, 351

(testimony of the appellant). We must defer to this determination, which is

implicitly based upon the appellant’s demeanor. See Purifoy v. Department of

Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (stating that the Board

must defer to an administrative judge’s determinations when they are “necessarily

intertwined” with an analysis of the witness’s demeanor).

¶16 After our review of the record, we find no basis to disturb the initi al

decision in this regard. Significantly, the charging document does not assert, and

the administrative judge did not find, that completing a PS-1260 was required and

that the appellant failed to meet that requirement. IAF, Tab 9 at 57-60; ID at 10.

Instead, the proposal notice only acknowledges that there were no completed

forms as evidence to prove the charge that the appellant improperly recorded

S.W.’s time in TACS. IAF, Tab 9 at 57-60. Thus, although we agree with the

appellant that the evidence does not demonstrate that PS-1260s were required, the

agency’s charge did not claim that it was required. Rather , the agency put forth

several witnesses collectively asserting that PS-1260s customarily were used to

document clock ring adjustments.

¶17 Concerning the F-21 Handbook, we note that it was not included in the

record below or in the appellant’s petition for review. HT at 251-52 (testimony

of D.R.). Moreover, it is clear that the statement on the back of the PS-1260

relates to the agency’s privacy policies and does not provide any guidance

towards an employee’s job duties or what customarily is expected of an employee

serving in the appellant’s capacity. Regardless of whether these documents

permitted a voluntary entry of time reflecting a supervi sor’s best estimate of an

employee’s time, we find that the agency still established through witness

testimony that it was more likely than not that the completion of a PS-1260 was

customary and that the appellant failed to complete any in her entry of S.W .’s

time. Accordingly, we find that the appellant has not provided any evidence on

review that would require a reversal of the initial decision’s findings in this

regard.

Improper TACS entries

¶18 The appellant also argues on review that the agency failed to prove that

S.W. was not present at work during the times it alleges the appellant improperly

recorded for her. PFR File, Tab 5 at 11-12. The appellant points to sworn

statements and testimony from S.W. and four other witnesses to show that S.W.

was present at work during the times for which she was paid. Id.; IAF, Tab 15

at 160-68. The appellant claims, moreover, that employees sometimes used a

broken door or “piggybacked” with others to enter the facility and that sometimes

employees would leave the facility with management’s knowledge to move their

cars in the parking lot, resulting in different door rings. IAF, Tab 15 at 29-33,

171; HT at 198 (testimony of C.P.).

¶19 The administrative judge found that the statements from the appellant’s

coworkers were “vague and conclusory” and, therefore, insufficient to establish

that S.W. was present at work on time on the days in question. ID at 7-8. She

further found that the agency’s evidence regarding the door ring data contained

sufficient information to indicate that S.W. arrived at the facility or left at times

other than those entered by the appellant. ID at 8 -9. She also considered the

agency’s evidence of available data concerning S.W.’s pa rking lot entrances and

her entrances and exits from the building, and concluded that it was more likely

than not that S.W. was absent from Cardiss Collins during times the appellant

authorized her to receive pay. Id.

¶20 We agree with the administrative judge’s finding that the agency met its

burden. To prove the facts alleged in Specification 1, and, ultimately, the charge

of “Improper Recording and Adjustment of an Employee’s Time and Pay Level in

[] TACS,” the agency set out to show that the appellant recorded time for S.W. in

TACS on various dates and times during which S.W. had not actually worked and

that she failed to verify S.W.’s actual time. IAF, Tab 9 at 57-60. A witness for

the agency testified regarding S.W.’s pattern of not reporting to work on time and

her observations on how the appellant recorded S.W.’s time. HT at 139-41

(testimony of P.M.). The agency also relied on clock and door ring records, both

of which provided specific dates and times of S.W.’s entry or exit, and contrasted

those records with S.W.’s TACS entries, which were entered by the appellant.

IAF, Tab 9 at 58-60. Neither the appellant nor any of her witnesses dispute d any

particular dates or times; they simply provided explanations as to why the

agency’s data may not have reflected S.W.’s actual entry or exit. Regardless,

assuming there was a genuine dispute as to whether S.W. was present at work at

the times the agency asserts she was not, the instant adverse action is against the

appellant, not S.W., and the administrative judge found that the appellant failed

to take reasonable steps to verify S.W.’s attendance before adjusting her TACS

and therefore improperly recorded and adjusted her time. ID at 9-10, 13, 17.

This finding regarding the appellant’s verification efforts has not been challenged

on review, and, based on our review of the record, we find no reason to disturb

it. 4

¶21 Based on the foregoing, we find that the administrative judge properly

weighed the evidence put forth by both parties and concluded that it was more

likely than not that the appellant improperly recorded and adjusted an employee’s

time in TACS as charged. IAF, Tab 9 at 42-47, 57-60. The appellant’s

The appellant relies on Wells v. Department of Defense, 53 M.S.P.R. 637, 643 (1992),

to emphasize that it is the agency’s obligation to demonstrate that S.W. was not present

for the hours for which she received credit and that merely establishing that S.W. was

not seen at work does not establish that S.W. did not work the time in question. PFR

File, Tab 5 at 11-12. The appellant’s reliance on Wells is misplaced. In that case, the

appellant was charged with improperly claiming overtime hours for himself without

being present at work, Wells, 53 M.S.P.R. at 639, while in the instant case, the appellant

is charged with improperly recording and adjusting another employee’ s time and

attendance records, IAF, Tab 9 at 57. Moreover, the agency in Wells did not specify the

dates on which it alleged the appellant improperly claimed undue overtime hours ,

Wells, 53 M.S.P.R. at 640, whereas in the instant case, the agency provided a detailed

record of the dates and times in question, IAF, Tab 9 at 58-60.

arguments on review amount to a mere disagreement with the administrative

judge’s conclusions after weighing the evidence, and we find that the appellant

has not provided a basis to disturb those findings. See, e.g., Crosby v. U.S. Postal

Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the

administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions); Broughton v.

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

The administrative judge properly determined that the penalty of removal was

within the bounds of reasonableness.

¶22 The appellant also challenges on review the agency’s consideration of the

Douglas factors when it assessed the penalty of removal. PFR File, Tab 5

at 12-21; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).

When all of the agency’s charges are sustained, the Board will review the

agency-imposed penalty only to determine if the agency considered all relevant

factors and exercised management discretion within the tolerable limits of

reasonableness. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11 (2010).

The Board will modify the agency-imposed penalty only when it finds the agency

failed to weigh relevant factors or the penalty clearly exceeds the bounds of

reasonableness. Douglas, 5 M.S.P.R. at 306.

¶23 In the decision letter, the deciding official considered the nature and

seriousness of the appellant’s misconduct and concluded that the offense was “a

serious one.” IAF, Tab 9 at 43. He also considered that the appel lant was a

supervisor, and thus held to a higher standard of performance and conduct, and

that her misconduct could not be tolerated by any employee, especially by a

management employee. Id. at 44. He further stated that he had lost confidence

and trust in the appellant’s ability to perform her duties on any level. Id. He also

considered the appellant’s length of service and lack of discipline as favorable to

the appellant, but he found that these factors were outweighed by the seriousness

and severity of the misconduct. Id. He also considered the adequacy and

effectiveness of alternative sanctions, but determined that removal was the

appropriate penalty. Id. at 45.

¶24 On review, the appellant argues that the deciding official and administrative

judge did not properly consider alleged comparators. PFR File, Tab 5 at 13,

18-20. She also asserts that, although the deciding official and administrative

judge concluded that the appellant was properly trained, her actual training was

insufficient to put her on notice of what was required of her. Id. at 17-18. The

appellant also argues that the deciding official provided conflicting information

regarding the appellant’s lack of remorse for her misconduct. Id. at 16-17.

Similarly situated comparators

¶25 Regarding the appellant’s argument that she was not treated similarly to

other employees who engaged in similar conduct, the administrative judge found

that none of the employees put forth by the appellant had enough similarity

between both the nature of the comparators’ misconduct and the other factors to

lead a reasonable person to conclude that the agency treated similarly situated

employees differently. ID at 24.

¶26 The appellant claims that a coworker, L.A., initially was removed by the

agency for similar misconduct but was, at the time of the hearing, employed by

the agency, suggesting that he must have received a lesser penalty. PFR File,

Tab 5 at 18-19. The administrative judge found that L.A.’s current employment

was the result of a settlement agreement with the agency and that his current

status had no bearing on whether he was an adequate comparator. ID at 24 n.6.

We agree. When another employee receives a lesser penalty, despite apparent

similarities in circumstances, as the result of a settlement agreement, the agency

is not required to explain the difference in treatment. Davis v. U.S. Postal

Service, 120 M.S.P.R. 457, ¶ 10 (2013). Here, L.A. is not a valid comparator

because, although he was removed from his position, he ultimately reached a

settlement resolving the discipline. HT at 246-47 (testimony of D.R.); ID at 24

n.6. Thus, the appellant’s argument regarding L.A. as an alleged comparator has

no merit.

¶27 The appellant also asserts that another employee, R.Y., only received a

demotion for improper recording of clock rings in 2010. PFR File, Tab 5

at 18-19; IAF, Tab 15 at 257-70. The administrative judge found that there was

not enough similarity between the appellant and R.Y. for him to be considered an

adequate comparator because R.Y. was not alleged to have had a personal

relationship with the employee whose time was entered improperly or to have

engaged in misconduct related to the higher level of pay without authorization.

ID at 24. We agree. The record makes clear that pertinent components of the

misconduct resulting in the appellant’s removal were the special relationship

between the appellant and S.W. and the unsupported increased pay of another

employee. IAF, Tab 9 at 42-43, 60-61. Because R.Y. was not alleged to have

engaged in either, the administrative judge appropriately concluded t hat he was

not an adequate comparator.

Whether the appellant was properly trained

¶28 The appellant also argues that the deciding official improperly used her

training as an aggravating factor. PFR File, Tab 5 at 17-18. She points to several

courses listed in the proposal notice and relied upon in the decision letter

regarding training for supervisors in Time and Attendance and the use of TACS ,

and claims that she did not participate in the listed courses. Id. She admits that

she did complete a 4-hour TACS training class, but she claims that it was very

limited and did not address the use of PS-1260s. Id. at 18.

¶29 The appellant’s training log lists the relevant courses that were detailed in

the proposal notice. IAF, Tab 9 at 231-33. The appellant challenges these

records by noting that, in the “Completion Progress” column corresponding to

each training course, the column reflects “0.00” for the courses listed in the

proposal notice. PFR File, Tab 5 at 17-18. During the hearing, however, the lead

Manager of Distribution Operations testified that a “0.00” in the “Completion

Progress” column does not mean that the course was not completed but rather

indicates that the course was completed in a classroom. HT at 19-22 (testimony

of P.S.). From our review of the training log, it appears that the witness’s

testimony is confirmed by the log itself, as a significant portion of the courses

that have a corresponding “0.00” for their “Completion Progress” are also listed

as having occurred in the classroom, provided in the “Delivery Method” column.

IAF, Tab 9 at 231-33. Further, the training log displays a checkmark in the

“Pass” column when a course had been completed, and it is indisputable that the

courses listed in the proposal notice and final decision have checkmarks in the

pass column. Id.; HT at 19-22 (testimony of P.S.).

¶30 In addition to the training logs, the appellant’s supervisor testified

regarding the appellant’s training. HT at 101, 106 (testimony of M.G.). She

testified that, for the appellant to have access to TACS, she would have had to

have been trained on the system. Id. at 106. She admitted that she did not

provide her with specific training on PS-1260s, but she testified regarding an

email sent to the appellant and several others wherein she highlighted a “best

practices” suggesting that anyone missing a timecard should be given a PS-1260

to ensure that their time is entered properly. IAF, Tab 16 at 66; HT at 115-16

(testimony of M.G.).

¶31 We find that the record establishes that the appellant received proper

training. Our review of the training record and relevant testimony indicate s that

it is more likely than not true that the appellant received the relevant training

courses. Nonetheless, even if we assume that the appellant had not actually

participated in the courses listed in the proposal notice, we still would reach the

same conclusion. The record contains several uncontested confirmations of the

appellant’s training. For example, the appellant acknowledged during her

investigative interview that she received TACS training consisting of a 1-day

training class and a weeklong online course. IAF, Tab 9 at 225; HT at 51

(testimony of P.S.). She confirmed this again during the hearing. HT at 325-26

(testimony of the appellant). The appellant also stated in her written reply to the

proposal notice that, although she had no formal training in supervision and

timekeeping, she did have “limited training.” IAF, Tab 16 at 79, 81.

Additionally, in an internal email from the deciding official to another agency

official, the deciding official stated that, during his oral interview of the

appellant, the appellant confirmed that she had 4 hours of training. Id. at 19.

Based on the foregoing, we find that the deciding official did not err in

considering the issue of training as an aggravating factor.

Whether the appellant demonstrated a lack of remorse

¶32 In her petition for review, the appellant argues that the record contains

conflicting information regarding whether she expressed remorse for her actions.

PFR File, Tab 5 at 16-17. The removal letter states that the appellant failed to

show any remorse. IAF, Tab 9 at 44. However, during her investigative

interview, the appellant stated that “[t]his is a lesson learned” and that she now

knows she needs to “follow through” and get the PS-1260. Id. at 223-25.

Further, the appellant testified at the hearing that she regretted not following

through to get the proper documentation. HT at 353 (testimony of the appellant).

Importantly, the deciding official testified at the hearing that he would not refute

the notion that the appellant told him that she learned from her actions and that

she would use the proper forms in the future. HT at 254-55 (testimony of D.R.).

Based on the record evidence, we find that the appellant’s alleged lack of remorse

should not have been considered as an aggravating factor. Although the deciding

official and the administrative judge concluded that the appellant continuously

shifted blame to others and deflected responsibility, ID at 26; IAF, Tab 9 at 43,

the record is clear that the appellant exhibited some degree of remorse for her

own actions. Thus, to consider this factor as an aggravating factor was an error.

¶33 Because the deciding official failed to appropriately consider the lack of

remorse and potential for rehabilitation factor, a factor that he deemed relevant by

explicitly discussing it in the decision letter, the agency’s penalty determination

is not entitled to deference. Von Muller v. Department of Energy, 101 M.S.P.R.

91, ¶¶ 18-21 (2005), aff’d, 204 F. App’x 17 (Fed. Cir. 2006), and modified on

other grounds by Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657

(2010), overruled on other grounds by Singh v. U.S. Postal Service, 2022 MSPB

15, ¶ 9. Nonetheless, we find that, due to the seriousness and severity of the

appellant’s misconduct and the nature of the appellant’s position, duties, and

responsibilities as a supervisor, the penalty of removal is within the bounds of

reasonableness. Martin v. Department of Transportation, 103 M.S.P.R. 153, 157

(2006) (stating that, in assessing whether the agency’s selected penalty is within

the tolerable limits of reasonableness, the most important factor is the nature and

seriousness of the misconduct and its relation to the employee’s duties, position,

and responsibilities), aff’d, 224 F. App’x 974 (Fed. Cir. 2007). Accordingly, we

will not disturb the agency’s selected penalty of removal.

¶34 We have considered the appellant’s arguments on review but have

concluded that a different outcome is not warranted. Accordingly, we affirm the

initial decision.

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

immediately review the law applicable to your claims and carefully follow a ll

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board a nd that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the Presiden t on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent juris diction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the