The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JORGE A. ARUFE, DOCKET NUMBER
Appellant, SF-0752-16-0217-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: October 6, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jorge A. Arufe, Boulder City, Nevada, pro se.
Karen D. Glasgow, Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appea l.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
material fact; the initial decision is based on an erroneous 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 as expressly MODIFIED by
this Final Order to supplement the administrative judge’s analysis concerning the
agency’s absent without leave (AWOL) charge and to find that the appellant is
deemed to have abandoned his affirmative defenses , we AFFIRM the initial
decision.
BACKGROUND
¶2 Effective December 7, 2015, the agency removed the appellant fro m his
Hydrologist position based on two charges of failure to follow instructions and
AWOL. Initial Appeal File (IAF), Tab 1 at 20-34. The failure to follow
instructions charge was supported by three specifications 2 alleging that: (1) on
March 11, 2015, the appellant entered an incorrect shift rating for the Hot Creek
gaging station; (2) on May 28, 2015, the appellant failed to get a surface water
rating approved for Hot Creek prior to publishing it online; and (3) on June 28,
2015, the appellant entered another unapproved rating for Hot Creek that
displayed online. Id. at 8-9, 21-25. The agency alleged under the AWOL charge
2
Although the agency did not enumerate the specifications underlying its narrative
charge, according to the administrative judge, the parties agreed that they understood
each specification to be distinct. IAF, Tab 11 at 8.
3
that the appellant was absent from July 21 to September 9, 2015 , and had not
provided appropriate documentation to support his absence and request for leave.
Id. at 9-14, 25-26.
¶3 The appellant filed a Board appeal disputing the charges. Id. at 5. He did
not request a hearing. Id. at 2. On August 3, 2016, the administrative judge
issued an initial decision, sustaining the appellant’s removal. IAF, Tab 11, Initial
Decision (ID). The administrative judge sustained the failure to follow
instructions charge based on specifications 2 and 3. ID at 6-12. He also
sustained the AWOL charge, finding that it was undisputed that the appe llant was
absent during the relevant time period and that the agency proved that, with the
exception of 2 days, the appellant’s absences were unauthorized. ID at 13 -14.
Lastly, the administrative judge found that there was a nexus between the
sustained charges and the efficiency of the service and that removal was within
the tolerable limits of reasonableness. 3 ID at 14-17.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the agency proved its failure to
follow instructions charge.
¶5 The administrative judge found that the evidence established t hat the
appellant’s supervisor instructed the appellant to gain approval for all new
surface water ratings prior to “working the record” 4 and that such an instruction
was proper given her status as his supervisor. ID at 7. He further found that,
3
The appellant does not challenge these findings on review, and we discern no error in
the administrative judge’s analysis.
4
The administrative judge found that “working the record” referred to taking any
record-related action from putting data online and applying shifts after a field trip to a
formal work up of a record. ID at 6. Although the appellant contends that this was an
erroneous finding, he fails to adequately explain how or why this definition is
inaccurate. PFR File, Tab 1 at 20.
4
regarding specifications 2 and 3, the appellant posted online unapproved ratings
for Hot Creek. ID at 10-12. On review, the appellant contends that his
supervisor was not qualified to approve his ratings because she previously
approved ratings that were not based on U.S. Geological Survey (USGS) policy,
showed no respect for the peer review process utilized to ensure computationally
correct ratings, and previously left an unapproved or incorrect rating online. PFR
File, Tab 1 at 20-21. Regarding specification 2, the appellant argues that
discipline is not warranted because the ratings his supervisor approved and p osted
online were not based on USGS policy, whereas his rating was based on USGS
policy and also was later approved after he presented it at a ratings workshop. Id.
at 21-22. Regarding specification 3, the appellant similarly argues that his
supervisor was not fit to decide whether his ratings should be approved due to her
“lack of scientific acumen” and “lack of understanding of the science of Hot
Creek.” Id. at 22-23. Although the appellant clearly disagrees over the technical
aspects of the rating for Hot Creek, his arguments fail to show any error in the
administrative judge’s finding that he failed to follow properly given instructions
and thus do not provide a basis for reversal. 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 correctly found that the agency proved its AWOL
charge.
¶6 In sustaining this charge, the administrative judge found that, with the
exception of July 27 and 28, 2015, the agency proved that the appellant was
absent and his absences were unauthorized. ID at 13-14. On review, the
appellant does not dispute that he was absent during the relevant time period but
argues that he should have been granted leave based on an August 17, 2015 letter
from his psychologist, which referenced treatment for “health problems related to
5
his work situation” that had caused him “a great deal of health problems and
emotional distress that authenticate[d] his need for time off.” PFR File, Tab 1
at 26; IAF, Tab 5 at 143. An AWOL charge will not be sustained if an appellant
presents administratively acceptable evidence showing that he was incapacitated
for duty during the relevant time period if he has sufficient sick leave to cover the
period of absence. Thom v. Department of the Army, 114 M.S.P.R. 169, ¶ 5
(2010); Valenzuela v. Department of the Army, 107 M.S.P.R. 549, ¶ 9 (2007).
Here, the agency notified the appellant that his medical documentation was
insufficient because it failed to contain a diagnosis, prognosis, or medical
explanation as to how his condition prevented him from performing his job
duties. IAF, Tab 5 at 139.
¶7 We find that the agency properly considered the appellant AWOL because
his medical documentation does not constitute persuasive evidence of
incapacitation due to the lack of detail as to his medical condition, diagnosis, and
prognosis. Compare Lawley v. Department of the Treasury, 84 M.S.P.R. 253,
¶¶ 22-23 (1999) (finding that the appellant’s medical documentation, which stated
that she required time off because of emotional stress that was work related and
due to problems with her supervisor, failed to indicate that she was incapacitated
for duty), with Patterson v. Department of the Air Force, 74 M.S.P.R. 648,
652-58 (1997) (finding the appellant’s detailed medical evidence, which indicated
the reasons why she was completely unable to work due to problems with her
supervisors, a diagnosis, and a prognosis of when she could return to work,
established that she was incapacitated for duty).
¶8 The appellant also argues that the agency should have granted him leave
without pay (LWOP) instead of carrying him in AWOL status. PFR File, Tab 1
at 26. We disagree. It is well settled that authorization of LWOP is within the
agency’s discretion. Oates v. Department of Labor, 105 M.S.P.R. 10, ¶ 11
(2007). However, the Board has held that, in cases involving medical excuses, it
will examine the record as a whole to determine whether the agency’s denial of
6
LWOP was reasonable under the circumstances. Sambrano v. Department of
Defense, 116 M.S.P.R. 449, ¶ 4 (2011). Here, the record reflects that after
initially requesting sick leave for his absence, the appellant requested LWOP,
indicating that he did not believe it was fair for him to have to use sick leave
when his “sickness” was caused by his work stress. IAF, Tab 5 at 188. We find
that it was not unreasonable for the agency to refuse to grant the appellant LWOP
in lieu of sick leave when he failed to provide sufficient medical documentation
to support the same absences.
The administrative judge did not abuse his discretion in declining to address the
appellant’s untimely affirmative defenses.
¶9 On review, the appellant argues that the administrative judge erroneously
determined that he was not raising any affirmative defenses and failed to address
his claims of harmful procedural error and retaliation for his prior equal
employment opportunity activity, for filing a grievance, and for his protected
whistleblower activity. PFR File, Tab 1 at 1-2, 5-7. However, the appellant did
not indicate on his appeal form that he was raising any affirmative defenses. IAF,
Tab 1 at 5. Further, the record reflects that, during a close of record conference
call on February 18, 2016, the appellant confirmed that he was not raising any
affirmative defenses and/or was withdrawing any affirmative defenses not
specifically identified in the summary. IAF, Tab 7 at 2-4. Notwithstanding, the
administrative judge provided written notice in the order regarding the applicable
burdens of proof for a wide range of potential affirmative defenses, including
claims of discrimination, retaliation, harmful procedural error, and whistleblower
reprisal, among others, but noted that such affirmative defen ses would not be
addressed by the Board absent a specific timely motion followed by an order. Id.
at 4-24. The close of record order further specified that any objections or
exceptions to the summary were to be received within 7 calendar days of the date
of the order or would be deemed waived. Id. at 24. The appellant did not file a
motion or objection within the 7-day deadline.
7
¶10 On March 21, 2016, the appellant filed a 328-page close of record
submission, 5 which included a section titled “Response to the Order and Summary
of Close of Record Conference,” in which he purports to raise claims of harmful
procedural error, retaliation for prior protected activity, retaliation for filing a
grievance, and whistleblower reprisal. IAF, Tab 10 at 70-77. The administrative
judge did not address any affirmative defenses in the initial decision, noting that
the appellant did not timely object to the close of record summary. ID at 4.
¶11 Under these circumstances we find that the administrative judge did not
abuse his discretion in declining to address the appellant’s untimely affirmative
defenses. As noted, the appellant did not object to the close of record order
stating that he was not raising any affirmative defenses. Cf. Thurman v. U.S.
Postal Service, 2022 MSPB 21, ¶¶ 17-18 (considering the appellant’s failure to
object to a summary of the issues to be decided that failed to include potential
affirmative defenses, among other factors, in assessing whether an appellant is
deemed to have waived or abandoned a previously raised affirmative defense) ;
Crowe v. Small Business Administration, 53 M.S.P.R. 631, 635 (1992) (finding
that the appellant abandoned his affirmative defenses when he failed to object,
when given the opportunity, to the administrative judge’s rulings excluding tho se
issues from the appeal). The appellant does not explain why he failed to timely
object to the order below. However, he asserts that he was confused and did not
understand the meaning of the term “affirmative defense” at the time of the close
of record conference and that, following the issuance of the initial decision, he
5
The administrative judge considered the appellant’s close of record submission despite
finding that it was received by the Board on March 23, 2016, after th e March 21, 2016
deadline set forth in the close of record order. ID at 4 -5. However, the language in the
close of record order is unclear as it both stated that submissions were to be filed by
March 21, 2016, but also that submissions received after that date would not be
accepted. IAF, Tab 3 at 1. Pursuant to the Board’s regulations, the appellant’s
submission, mailed on March 21, 2016, and received by the Board on March 23, 2016,
was timely filed. See 5 C.F.R. § 1201.4(l) (stating that the date of filing by mail is
determined by the postmark date). Under these circumstances, the administrative judge
properly considered the appellant’s close of record submission.
8
consulted with an attorney who explained the term to him. PFR File, Tab 1 at 2.
We find such arguments unavailing. Having been informed of his right to obtain
representation, IAF, Tab 2 at 2, 10, and choosing to proceed pro se, the appellant
is responsible for the consequences of that decision, see, e.g., Brum v.
Department of Veterans Affairs, 109 M.S.P.R. 129, ¶ 5 (2008). Moreover, such
confusion was not due to any misleading or incorrect information provided by the
Board. The administrative judge’s order specifically notified the appellant of
potential affirmative defenses and their applicable burdens of proof, and the
appellant could have sought additional clarification of the order to the extent
necessary.
¶12 Accordingly, we affirm the initial decision sustaining the appellant’s
removal.
NOTICE OF APPEAL RIGHTS 6
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
6
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.
9
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 v isit 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.
10
(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 an d 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:
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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 sectio n
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. 7 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).
7
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.
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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:
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.