Opinion

Darlyn Scovell v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jan 31, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

finding that the Board must defer to an administrative judge’s demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly discussed”

How later courts described this case

finding that the Board must defer to an administrative judge’s demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly discussed”
explaining that a deciding official violates an employee’s due process rights when he relies upon new and material ex parte information as a basis for his decisions on the merits of a proposed charge or the penalty to b e imposed

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DARLYN C. SCOVELL, DOCKET NUMBER

Appellant, SF-0752-16-0355-I-1

DEPARTMENT OF THE NAVY, DATE: January 31, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Daphne E. Barbee, Esquire, Honolulu, Hawaii, for the appellant.

Ellen Johnston, Washington Navy Yard, D.C., 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 chapter 75 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except to MODIFY the

administrative judge’s analysis of the appellant’s claim that the agency violated

her due process rights, we AFFIRM the initial decision.

BACKGROUND

¶2 The agency removed the appellant from her position as a GS-6 Lead Child

Development Program Technician for a pre-kindergarten child development

center based on her failure to follow the following instructions on child guidance

techniques:

15.3.b. The child guidance policy shall be designed to assist the

child in developing self-control, self-respect, and respect and

consideration for the rights and property of others. Clear behavioral

limits for children shall be established based on positive guidance

(what to do vice what not to do) and redirecting children toward

desired activities.

15.3.e. Restricting the child’s movements or placing the child in a

confined space as a form of punishment is prohibited.

Initial Appeal File (IAF), Tab 8 at 12-14, 37, Tab 9 at 90-91, Tab 10 at 30. 2

The agency charged the appellant with violating the Office of the Chief of Naval

Operations Instruction 1700.9e, Chapter 15.3, Child Guidance Techniques, sections b

and e. IAF, Tab 8 at 37, Tab 9 at 90-91. Chapter 15 provides guidance and requires

training on child abuse prevention precautions, including discipline techniques, and

mandates the implementation of a child guidance policy and a touch policy. IAF, Tab 9

at 83-95.

¶3 In support of the charge, the agency relied in part on a video recording

showing the appellant interacting with a child in her classroom on September 30,

2015. IAF, Tab 8 at 37-38, Tab 13 (video). The agency specified that the video

showed the appellant wrapping her arms and legs around the child, restraining

him on her lap for approximately 10 minutes, and “pulling him by the arms and

legs” when he repeatedly attempted to escape her grasp. IAF, Tab 8 at 37-38.

The agency also stated that an agency Incident Determination Committee (IDC)

concluded that her case met the criteria for physical abuse of a child. Id. at 38.

¶4 In reply to her proposed removal, the appellant acknowledged that she

should have used different techniques to redirect the child’s attention; however, it

was unclear from her response whether she believed that her conduct violated the

agency’s Child Guidance and Touch Policy (Touch Policy). 3 Id. at 31-32; IAF,

Tab 9 at 95. The appellant also argued that there were mitigating factors, she was

a “good candidate for rehabilitation and re-education,” and she was not charged

with corporal punishment. IAF, Tab 8 at 31-32. As to the IDC determination,

she stated that the committee met in a closed-door session to consider an

allegation of child abuse made against her, and she received no due process in

that proceeding. Id. at 30. She also stated that the committee did not speak to

her, she had no opportunity to confront her accusers or view the evidence

presented against her, and the determination was not yet final. Id.

¶5 The deciding official sustained the appellant’s removal, stating that there

was credible evidence that she violated the agency’s “no touch” policy by

To this end, the appellant made the following statements in her written reply:

(1) “Nothing in the record, or in my memory, indicates that I could be terminated for a

minor violation of the Touch Policy”; (2) “my behavior was consistent with, not in

violation of the agencies Child Guidance and Touch Policy”; (3) “Termination is an

extreme reaction to a minor (yet real) violation of the Touch Policy by an otherwise

outstanding and trustworthy employee”; (4) “My actions, as far as I can tell, fall

squarely in line with the definition of appropriate touch, per the written policy given to

me”; (5) “I do not disagree that on September 30, 2015 I restrained a child, consistent

with our Touch Policy.” IAF, Tab 8 at 30-32 (grammar and punctuation in original).

intentionally “restricting the child’s movements or placing the child in a confined

space as a form of punishment.” Id. at 12-13, 25. He considered her 14 years of

Federal service, acceptable performance rating, performance, and lack of prior

discipline, but he found no potential for rehabilitation due to the nature of her

offense. Id. at 13, 25-27. The deciding official also stated that his decision was

not based on the results of the IDC determination. Id. at 12.

¶6 The appellant filed an appeal with the Board arguing that the agency

violated her right to due process, committed harmful error, and subjected her to

unlawful discrimination based on her race (Filipino Chinese) and color (brown).

IAF, Tab 1 at 7, Tab 25 at 10, Tab 29 at 2. After holding a hearing, the

administrative judge issued an initial decision affirming the removal. IAF,

Tab 36, Initial Decision (ID) at 1, 28. She found that the agency proved the

charge as specified and the appellant failed to prove her claims alleging due

process violations, harmful error, and discrimination. ID at 12-20. The

administrative judge also found nexus and sustained the penalty of removal. ID

at 20, 28.

¶7 The appellant has filed a petition for review wherein she argues, among

other things, the following: (1) the agency failed to prove its charge; (2) the

administrative judge made erroneous rulings regarding one of her proffered

witnesses; (2) her removal was precipitated by discrimination on the basis of her

race and color; (3) the agency violated her due process rights; and (4) the penalty

of removal was unreasonable under the circumstances. Petition for Review (PFR)

File, Tab 1 at 3-33. The agency has responded in opposition to her petition, and

the appellant has replied thereto. PFR File, Tabs 3-4.

ANALYSIS

We discern no basis to disturb the administrative judge’s conclusion that the

agency proved its charge.

¶8 The appellant argues that the agency failed to prove its charge of failure to

follow instructions. PFR File, Tab 1 at 5-13. To this end, she asserts the

following: (1) her actions were both appropriate and consistent with agency

instructions and guidance; (2) the administrative judge failed to consider all of

the evidence in the record; and (3) the administrative judge mischaracterized

certain evidence, including the video recording of the incident. Id. We find that

these assertions do not provide a basis to disturb the administrative judge’s

well-reasoned findings. ID at 6-12; see 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); see also Marques v.

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

(explaining that an administrative judge’s failure to discuss all of the evidence of

record does not mean that the evidence was not considered), aff’d, 776 F.2d 1062

(Fed. Cir. 1985) (Table). Accordingly, we discern no basis to disturb the

administrative judge’s conclusion that the agency proved its charge by

preponderant evidence.

We discern no basis to disturb the administrative judge’s evidentiary rulings.

¶9 The appellant contends that the administrative judge abused her discretion

in “limiting and disregarding” the testimony of one of her witnesses, Dr. K. PFR

File, Tab 1 at 24-28. Specifically, she argues that the administrative judge

abused her discretion by (1) limiting the scope of Dr. K.’s testimony prior to the

hearing, i.e., precluding her from testifying about the appellant’s lack of intent to

abuse a child, and (2) limiting the scope of Dr. K.’s testimony during the hearing.

Id. at 24-28; PFR File, Tab 4 at 13. The appellant also seemingly argues that the

administrative judge did not ascribe sufficient weight to Dr. K .’s testimony that

the appellant’s interactions with the child did not violate agency instructions.

PFR File, Tab 1 at 25-28. We find these assertions unavailing.

¶10 An administrative judge has broad discretion to regulate the course of the

hearing and to exclude evidence and witnesses that have not been shown to be

relevant, material, and nonrepetitious. Thomas v. U.S. Postal Service,

116 M.S.P.R. 453, ¶ 4 (2011); 5 C.F.R. § 1201.41(b)(8), (10). To obtain reversal

of an initial decision on the basis of the exclusion of a witness, the appellant must

show that a relevant witness or evidence, which could have affected the outcome,

was disallowed. See Thomas, 116 M.S.P.R. 453, ¶ 4. Regarding the

administrative judge’s prehearing ruling, the record indicates that, following the

parties’ prehearing conference, the administrative judge issued an order wherein

she limited the scope of Dr. K.’s testimony on the basis of relevance. IAF,

Tab 29 at 4-5. Specifically, she indicated that Dr. K. could not testify regarding

whether the appellant intended to abuse the child, reasoning that the agency was

not required to prove intent to abuse. 4 Id. at 4. The administrative judge

explained that, if either party objected to her order, they could file a written

objection within 6 days. Id. at 8. The appellant did not object to the

administrative judge’s prehearing rulings concerning Dr. K.; accordingly, she is

precluded from doing so on petition for review. See Tarpley v. U.S. Postal

Service, 37 M.S.P.R. 579, 581 (1988) (stating that an appellant’s failure to timely

object to rulings on witnesses precludes the appellant from doing so on petition

for review). Moreover, we find no basis to disturb the administrative judge’s

prehearing limitation of the scope of Dr. K.’s testimony on the basis of relevance.

See Thomas, 116 M.S.P.R. 453, ¶ 4.

¶11 Regarding rulings made during the hearing, the appellant appears to be

challenging the administrative judge’s statement that she did “not need [Dr. K.] to

testify with respect to whether she perceived the [a]ppellant’s actions to be child

abuse.” PFR File, Tab 1 at 24, 26; Hearing Transcript (HT) at 162 (statement of

the administrative judge). The appellant did not object to this ruling during the

hearing. See Whitehurst v. Tennessee Valley Authority, 43 M.S.P.R. 486, 491

(1990) (explaining that an appellant is obliged to preserve for the Board’s review

She also precluded Dr. K. from testifying about whether the agency afforded the

appellant due process and proper procedure. IAF, Tab 29 at 4 -5.

objections to the administrative judge’s conduct of the hearing and cannot wait

until after the adjudication is complete to object for the first t ime to the

administrative judge’s hearing-related rulings). In any event, we find no error

with this ruling. As set forth in the initial decision, the question of whether the

agency proved its charge did not require any particular technical expertise;

indeed, even assuming that Dr. K.’s expert opinion reflected a generally accepted

approach to childcare, the agency was free to make its own instructions regarding

the permissible behavior of its employees. ID at 10-11. The appellant’s

remaining evidentiary contention, i.e., that the administrative judge did not

ascribe sufficient weight to Dr. K’s testimony, does not provide a basis to disturb

the initial decision because it constitutes mere disagreement with the

administrative judge’s explained factual findings and legal conclusions therefrom.

See Riggsbee v. Office of Personnel Management, 111 M.S.P.R. 129, ¶ 11 (2009)

(explaining that an appellant’s mere disagreement with the administrative judge’s

explained factual findings and legal conclusions therefrom does not provide a

basis to disturb the initial decision); see also Crosby, 74 M.S.P.R. at 106. Thus, a

different outcome is not warranted.

We find no basis to disturb the administrative judge’s conclusion that the

appellant failed to prove her claim of discrimination.

¶12 The appellant reasserts her affirmative defense of disparate treatment

discrimination based on her race (Filipino Chinese) and color (brown). 5 PFR File,

Tab 1 at 30-33, Tab 4 at 14-15. We find her contentions in this regard

unpersuasive; indeed, the administrative judge thoroughly considered the record

as a whole and found that the appellant failed to show by preponderant evidence

that discrimination was a motivating factor in her removal. ID at 17-19; see

Although the appellant was not notified of the correct standards and burdens of proof

applicable to this affirmative defense before the hearing, the initial decision set forth

the applicable standard, thereby providing her with notice and an opportunity to meet

her burden on review. See Sabio v. Department of Veterans Affairs, 124 M.S.P.R. 161,

¶ 6 n.2 (2017).

Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶¶ 20-22 (explaining

that an appellant may prove a claim of discrimination based on race or color

under the motivating factor standard, i.e., by proving that prohibited

discrimination played “any part” in the contested action).

¶13 We find that the appellant’s conclusory arguments on review merely express

disagreement with the administrative judge’s weighing of the evidence. For

example, the appellant states that she overheard her Caucasian supervisor say

negative things about Filipinos and that another Filipino employee said that her

supervisor mentioned the large number of Filipinos working there and stated that

most are uneducated. PFR File, Tab 1 at 31. She also avers that all of her

accusers were Caucasian, including her supervisor and the proposing and dec iding

officials. Id. The administrative judge observed the testimony of the agency

officials and the appellant on these points, but she found insufficient evidence to

infer a discriminatory motive. ID at 18-19. We find that the administrative

judge’s demeanor-based credibility determinations deserve deference from the

Board. 6 Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed.

Cir. 2016) (finding that the Board must defer to an administrative judge’s

demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly

discussed”); Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.

2002).

¶14 The appellant also reasserts that other employees were treated more

leniently when they engaged in similar misconduct. PFR File, Tab 1 at 30-33.

She argues that the agency did not discipline one of her Caucasian coworkers who

Further, the agency’s investigation into the appellant’s classroom conduct was

initiated by a parent, not an agency employee, complaining that her ba bysitter had

observed the appellant doing something objectionable to a different child. ID at 3. The

appellant’s supervisor and the Director responded to the parent complaint by watching

the video recording of the appellant’s classroom and saw nothing wr ong with the

conduct complained about; however, they observed the conduct underlying this removal

action. Id.

worked at the same child care center for the same supervisor and purportedly

engaged in similar conduct with the same child on the same day. Id. at 31-32.

She also argues that the agency did not remove or discipline other non -Filipinos

for engaging in similar or more serious conduct. Id.

¶15 In her initial decision, the administrative judge concluded that the alleged

comparator employees were not similarly situated because they had different

supervisors, engaged in conduct that was not substantially similar to the

appellant’s misconduct, or were not subject to the same standards as the appellant

when the incidents occurred. ID at 19, 22-25. For example, the administrative

judge found that the appellant’s Caucasian coworker was not a lead teacher like

the appellant and that she had not restricted the child’s movements in a manner

similar to that of the appellant. 7 ID at 19. We discern no basis to disturb any of

these findings. See Ly v. Department of the Treasury, 118 M.S.P.R. 481, ¶ 10

(2012) (explaining that, for an employee to be deemed similarly situated for

purposes of an affirmative defense of discrimination based on disparate treatment,

all relevant aspects of the appellant’s employment situation must be “nearly

identical” to that of the comparator employee). Accordingly, we agree that the

appellant failed to prove her claim of discrimination. 8

The administrative judge also considered the appellant’s testimony that the agency did

not discipline two Caucasian teachers for conduct that included threatening to cut a

child’s throat and lifting a child by his arm and sweeping him off his feet and pla cing

him in a seated position. ID at 25. The administrative judge found that the appellant’s

testimony concerning these incidents, which the appellant allegedly witnessed, was not

credible. Id. Although the appellant disputes this finding on review, PF R File, Tab 1

at 22, we discern no basis to disturb it, see Haebe, 288 F.3d at 1301.

Because the appellant failed to show that the agency’s action was motivated by

discrimination, she necessarily failed to prove “but-for” causation. See Pridgen,

2022 MSPB 31, ¶ 22 (explaining that to obtain full relief, including status quo ante

relief, an appellant must prove that discrimination was a but-for cause of the

employment outcome).

We agree with the administrative judge’s conclusion that the appellant failed to

prove a due process violation; however, we modify a portion of her analysis of

this claim.

¶16 The appellant contends that the administrative judge erred in finding that

she failed to prove a due process violation. PFR File, Tab 1 at 13-15.

Specifically, she asserts that the deciding official improperly considered section c

of the Office of the Chief of Naval Operations Instruction (OPNAVINST)

1700.9e, Chapter 15.3, Child Guidance Techniques , because the notice of

proposed removal referenced only sections b and e of the same. 9 Id.; IAF, Tab 8

at 37. OPNAVINST Child Guidance Techniques 15.3.c. prohibits corporal

Additionally, the appellant contends that the agency violated her due process rights by

failing to timely provide her with various information, i.e., (1) a DVD video recording

of the incident underlying the charge, (2) documents pertaining to the IDC

determination, and (3) documents pertaining to prior incidents involving the appellant

being AWOL and sleeping in the classroom. PFR File, Tab 1 at 15-20. For the reasons

set forth in the initial decision, we find the appellant’s assertions regarding the DVD

unavailing. ID at 13-14. Regarding the IDC documents, as discussed in the initial

decision, the appellant’s union representative testified that he had received IDC

documents from the appellant before the submission of her reply to the notice of

proposed removal. PFR File, Tab 1 at 19-20; ID at 15; HT at 116-17 (testimony of the

appellant’s union representative); see Haebe, 288 F.3d at 1301. Last, regarding the

documents pertaining to the prior incidents involving the appellant, the record supports

the administrative judge’s conclusion that the deciding official did not consider these

incidents in assessing the appropriate penalty; thus, these documents did not constitute

material information. ID at 16-17; IAF, Tab 8 at 13; HT at 30 (testimony of the

deciding official); see Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,

1376-77 (Fed. Cir. 1999) (explaining that a deciding official violates an employee’s due

process rights when he relies upon new and material ex parte information as a basis for

his decisions on the merits of a proposed charge or the penalty to b e imposed).

The appellant also briefly argues that the deciding official partook in improper ex parte

communications with a “Mr. Perez,” asserting that she was unaware of the involvement

of this individual until the hearing. PFR File, Tab 1 at 30, Tab 4 at 12-14. A review of

the hearing transcript reveals that the name “Mr. Perez” came up only once during the

hearing, i.e., when the deciding official stated during cross examination that a

“Mr. Perez” had also reviewed the record and agreed that removal was appropriate. HT

at 59 (testimony of the deciding official). The appellant’s counsel did not inquire any

further regarding the identity or involvement of this individual and the record provides

no clarity regarding the same. Thus, we find the appella nt’s vague assertion regarding

this purported ex parte communication unavailing.

punishment, which is defined as spanking, hitting, punching, slapping, pinching,

shaking, or any other form of physical punishment. 10 IAF, Tab 9 at 90-91.

¶17 Pursuant to the U.S. Court of Appeals for the Federal Circuit’s decisions in

Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone

v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir.

1999), a deciding official violates an employee’s due process rights when he

relies upon new and material ex parte information as a basis for his decisions on

the merits of a proposed charge or the penalty to be imposed. I n determining

whether a due process violation has occurred, there is no basis for distinguishing

between ex parte information provided to the deciding official and information

personally known to him, if the information was considered in reaching the

decision and not previously disclosed to the appellant. Lopes v. Department of

the Navy, 116 M.S.P.R. 470, ¶ 10 (2011). Ward, Stone, and their progeny

recognize, however, that not all ex parte communications rise to the level of due

process violations; rather, only ex parte communications that introduce new and

material information to the deciding official are constitutionally infirm. See, e.g.,

Wilson v. Department of Homeland Security, 120 M.S.P.R. 686, ¶ 8 (2014), aff’d,

595 F. App’x 995 (Fed. Cir. 2015). In Stone, the Federal Circuit identified the

following factors to be used to determine if ex parte information is new and

material: (1) whether the ex parte information introduced cumulative, as opposed

to new, information; (2) whether the employee knew of the information and had

an opportunity to respond; and (3) whether the communication was of the type

likely to result in undue pressure on the deciding official to rule in a particular

manner. Stone, 179 F.3d at 1377. Ultimately, the Board must determine

“whether the ex parte communication is so substantial and so likely to cause

prejudice that no employee can fairly be required to be subjected to a deprivation

of property under such circumstances.” Id. Due process, however, is not a

Section 15.3.c also states, in pertinent part, that the use of corporal punishment is

grounds for immediate dismissal. IAF, Tab 9 at 90.

technical conception with a fixed content unrelated to time, place, and

circumstances; rather, it is a flexible concept that calls for such procedural

protections as the particular situation demands. See, e.g., Gajdos v. Department

of the Army, 121 M.S.P.R. 361, ¶ 18 (2014).

¶18 The administrative judge considered the appellant’s argument that the

deciding official had improperly considered section c even though she had not

been charged with a violation of that specific provision. ID at 15. The

administrative judge found the argument unavailing, reasoning that, although the

deciding official may have personally believed that the appellant’s conduct

amounted to corporal punishment under section c, he “did not consider [whether

the appellant had engaged in corporal punishment] in rendering his [removal]

decision.” Id. We disagree with this finding. Here, the hearing transcript

indicates that the deciding official testified that he believed that the appellant had

violated section c because, based on his review of the video, he thought that the

appellant had shaken the child by “grabb[ing] him and pull[ing] him back into

her.” HT at 40 (testimony of the deciding official). Later in his testimony, the

deciding official acknowledged that he had, in fact, taken his finding regarding

corporal punishment into consideration in deciding to remove the appellant. HT

at 47 (testimony of the deciding official). Accordingly, we vacate the

administrative judge’s finding that the deciding official did not consider section c

in deciding to remove the appellant from her position; nevertheless, for the

following reasons, we agree with her conclusion that the appellant failed to show

that the agency violated her due process rights.

¶19 First, the appellant was generally aware of the policies that she was alleged

to have violated; indeed, the agency’s notice of proposed removal generally cited

“OPNAVINST 1700.9E, Chapter 15” as a reference. IAF, Tab 8 at 37.

Additionally, the proposing official’s Douglas factors worksheet, which the

appellant referenced in her written reply, alleged that the appellant had

“[v]iolated . . . OPNAV 1700.9e; Chapter 15 Section 3 — Child Abuse and

Neglect.” Id. at 31; IAF, Tab 9 at 7. In addition to referencing the OPNAVINST,

the notice of proposed removal also specifically referenced the agency’s Touch

Policy. IAF, Tab 8 at 37. The proposing official’s Douglas factors worksheet

also referenced this policy. 11 IAF, Tab 9 at 9. This policy, like section c of

chapter 15 in the OPNAVINST, prohibits corporal punishment. Id. at 95.

Specifically, it states as follows: “A child will not be punished by . . . shaking or

other corporal punishment.” Id. It also sets forth “the definition of what is

considered appropriate touch and inappropriate touch,” with examples provided.

Id. The definition of inappropriate touching includes “corporal punishment.” Id.

¶20 Second, the notice of proposed removal identified the specific conduct that

the agency determined to be in violation of the aforementioned policies; indeed, it

stated as follows: “[Y]ou were witnessed on video . . . physically restraining a

child for approximately 10 minutes.” IAF, Tab 8 at 37. It further explained that

the appellant was seen “pulling [the child] by the arms and legs” and “wrapping

[her] own arms and legs around him on [her] lap to restrain him.” Id. at 37-38.

¶21 Third, the appellant provided a specific response to the agency’s allegations

concerning her conduct; indeed, in her written reply, she described her conduct as

follows: “He then wiggled off, crawling away from me. I leaned forward, pulled

him back towards me, and held him close to my body – I gave him a big hug.” Id.

at 29. Notes from the appellant’s oral reply reflect that she stated, “I was trying

to hold him, but he was resisting. . . . He’d get up; I’d hold him again. . . . He

kept wiggling. . . . I was not punishing the child at all.” Id. at 33-34. She also

indicated her understanding that she was “alleged to have temporaril y breached

the ‘touch policy.’” Id. at 30. She specifically addressed this policy and

seemingly asserted that her actions constituted appropriate touch pursuant to the

Specifically, the worksheet stated as follows: “Each employee signs a ‘Touch Policy’

which specifically states both appropriate and inappropriate actions with children.”

IAF, Tab 9 at 9.

same. 12 Id. at 30-32; see IAF, Tab 9 at 95 (indicating that appropriate touch

includes hugs and lap sitting). She acknowledged in her written reply that

“[i]nappropriate touch includes such behavior as . . . corporal punishment.” IAF,

Tab 8 at 32. She also argued in her oral reply that, under the Touch Policy, it is

appropriate to “hold children firmly,” and she suggested that her conduct did not

constitute inappropriate touch. Id. at 34; see also HT at 266 (testimony of the

appellant acknowledging that she stated in her reply that she did not violate the

Touch Policy).

¶22 In light of the foregoing, to the extent that the agency’s notice of proposed

removal failed to explicitly cite to section c, we find that the oversight was not so

substantial and so likely to cause prejudice as to deprive the appellant of due

process. See Stone, 179 F.3d at 1376-77 (explaining that “not every ex parte

communication is a procedural defect so substantial and so likely to cause

prejudice that it undermines the due process guarantee”). Indeed, as discussed

above, the record showed that the appellant was notified of the conduct that the

agency found objectionable and of the policies that she was alleged to have

violated. See Harding v. U.S. Naval Academy, 567 F. App’x 920, 924 (Fed. Cir.

2014) (finding that the agency did not violate the appellant’s due process rights

when the proposal notice charged her with being under the influence of illegal

drugs but the deciding official found that she had engaged in illegal drug use

because the appellant “could not reasonably have [been] misled” about the reason

for the proposal as the narrative portion of the proposal notice referenced illegal

drug use); 13 see also Wilson, 120 M.S.P.R. 686, ¶¶ 10-12 (finding no due process

violation when the appellant, in responding to the proposed action, made a

However, as discussed above, the appellant also seemingly acknowledged a “minor”

violation of the policy. IAF, Tab 8 at 31.

The Board has found that it may rely on unpublished decisions of the Federal Circuit

when, as here, it finds the court’s reasoning persuasive. E.g., Vores v. Department of

the Army, 109 M.S.P.R. 191, ¶ 21 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009).

“specific and significant” response to an aggravating factor even though it was

not cited in the proposal notice). Thus, although we agree with the administrative

judge’s conclusion that the agency did not violate the appellant’s due process

rights, we modify the basis for this finding.

We agree that the penalty of removal was reasonable under the circumstances .

¶23 The appellant raises a series of arguments regarding the penalty of removal.

PFR File, Tab 1 at 20-24. To this end, she avers the following: (1) the agency

failed to engage in progressive discipline; (2) the agency failed to consider her

rehabilitative potential; and (3) she was charged with failure to follow

instructions, not child abuse, and numerous other employees who have been

similarly charged have not been removed from their positions. Id.

¶24 When, as here, the agency’s charge is sustained, the Board will review an

agency imposed penalty only to determine if the agency considered all of the

relevant factors and exercised discretion within tolerable limits of reasonableness.

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

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). In making this

determination, the Board must give due weight to the agency’s primary discretion

in maintaining employee discipline and efficiency, recognizing that the Board’s

function is not to displace management’s responsibility, but to ensure that

managerial judgment has been properly exercised. Ellis, 114 M.S.P.R. 407, ¶ 11;

Douglas, 5 M.S.P.R. at 306. The Board will modify an agency-imposed penalty

only when it finds that the agency failed to weigh the relevant factors or the

penalty clearly exceeds the bounds of reasonableness. Ellis, 114 M.S.P.R. 407,

¶ 11.

¶25 Here, the administrative judge applied the proper legal standard and

concluded that the agency’s selected penalty of removal was not unwarranted

under the circumstances and was within the tolerable bounds of reasonableness.

ID at 20-28; see Ellis, 114 M.S.P.R. 407, ¶ 11. In so doing, she reasoned that the

deciding official had considered the relevant Douglas factors. ID at 20-21; see

Haebe, 288 F.3d at 1301; see also Douglas, 5 M.S.P.R. at 305-06. She also

reasoned that the appellant’s conduct was “serious” in nature and “made more

serious by the fact that [she] is a lead teacher with responsibility for overseeing

and mentoring other classroom teachers.” ID at 21; IAF, Tab 10 at 10. She

thoroughly considered the appellant’s claims regarding progressive discipline,

rehabilitative potential, and disparate penalties, 14 but she found each claim

unavailing. ID at 21-28. For example, regarding rehabilitative potential, the

administrative judge reasoned that the appellant had testified at the hearing that

she believed that her interaction with the child was proper and that, if faced with

the same circumstances again, she would engage in the same conduct. ID

at 27-28; HT at 283 (testimony of the appellant). The administrative judge also

recounted the deciding official’s testimony that, given the nature of the

appellant’s offense, he had concerns about placing her back in a classroom

setting. ID at 26-27. Accordingly, we discern no basis to disturb the

administrative judge’s conclusion that the penalty of removal was reasonable

under the circumstances. See Green v. Department of the Navy, 61 M.S.P.R. 626,

636 (explaining that the Board has found that failure to follow instructions may

be sufficient cause for removal), aff’d, 36 F.3d 1116 (Fed. Cir. 1994) (Table).

After the initial decision in this case was issued, the Board ov erruled some of its

prior precedent governing the analysis of claims of disparate penalties when weighing

the reasonableness of a penalty and clarified that it should not weigh the relative

seriousness of various offenses to determine if the agency treated employees who

committed different acts of misconduct differently; rather, the relevant inquiry is

whether the agency knowingly and unjustifiably treated employees who engaged in the

same or similar offenses differently. Singh v. U.S. Postal Service, 2022 MSPB 15,

¶¶ 14, 17. Applying this standard here, we conclude that the appellant’s arguments both

before the administrative judge and on review do not show that the agency knowingly

and unjustifiably treated any employees who engaged in the same or similar offenses

differently.

We have considered the appellant’s remaining arguments; however, we find them

unavailing.

¶26 We have considered the appellant’s remaining assertions; however, we find

that none of these assertions provide a basis to disturb the initial decision . For

example, the appellant reasserts that the agency committed harmful procedural

error. PFR File, Tab 1 at 28-30. We find, however, that the appellant’s

arguments do not warrant disturbing the administrative judge’s conclusions

concerning this claim. ID at 16-17.

¶27 Accordingly, we affirm the initial decision as modified.

NOTICE OF APPEAL RIGHTS 15

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 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 immediately review the law applicable to your

claims and carefully follow all 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

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.

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 and that su ch 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. 16 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).

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

following address:

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 President 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 jurisdiction.

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

132 Stat. 1510.