Sheila Williams v. Department of Health and Human Services

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHEILA JOSHALYN WILLIAMS, DOCKET NUMBER

Appellant, DC-0752-16-0558-I-1

v.

DEPARTMENT OF HEALTH AND DATE: February 24, 2023

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jason I. Weisbrot, Esquire, and Justin Womack, Baltimore, Maryland, for

the appellant.

Alexis S. Conway, Baton Rouge, Louisiana, for the agency.

Katherine A. Goetzl and Reynolds Wilson, Esquire, Washington, D.C., for

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Leavitt issues a separate dissenting opinion.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

¶1 The agency has filed a petition for review and the appellant has filed a cross

petition for review of the initial decision, which sustained both specifications of

the charge of unprofessional conduct, found that the appellant did not prove any

of her affirmative defenses, and reversed the agency’s removal action because the

agency did not prove a nexus between the misconduct and the efficiency of the

service. For the following reasons, we GRANT the petition for review and the

cross petition for review. We AFFIRM the administrative judge’s decision to

sustain both specifications of the unprofessional conduct charge and her finding

that the appellant did not prove any of her affirmative defenses. We REVERSE

the administrative judge’s finding that the agency did not prove nexus. We

MITIGATE the removal penalty to a 14-day suspension.

BACKGROUND

¶2 The agency removed the appellant, an Investigations Analyst, based on a

charge of unprofessional conduct stemming from her behavior during an

August 19, 2015 incident in the Equal Employment Opportunity Compliance and

Operations (EEOCO) Division. Initial Appeal File (IAF), Tab 6 at 39 -47, Tab 7

at 53-58. She appealed to the Board and, after a hearing, the administrative judge

issued an initial decision reversing the removal. IAF, Tab 34, Initial Decision

(ID) at 1, 19. The administrative judge found that the agency proved both

specifications of its charge. ID at 7-10. She also concluded that the appellant did

not prove her affirmative defenses of disability discrimination and reprisal for

equal employment opportunity (EEO) activity. ID at 14-19. However,

the administrative judge reversed the removal action because the agency did not

prove a nexus between the removal and the efficiency of the service. ID at 10 -13.

¶3 The agency has filed a petition for review, the appellant has filed a

response, and the agency has filed a reply brief. Pet ition for Review (PFR) File,

Tabs 4, 9, 14. The appellant’s response not only opposes the agency’s petition

3

for review but also challenges the administrative judge’s analysis of the charge

and her exclusion of purported comparator evidence. PFR File, Tab 9 at 19

& n.5, 25 & n.8. Therefore, we have construed it also as a cross petition for

review. PFR File, Tab 11. The agency has filed a response to the appellant’s

cross petition for review. PFR File, Tab 15.

ANALYSIS

¶4 An agency must establish the following three things to withstand a

challenge to an adverse action against an employee pursuant to 5 U.S.C.

chapter 75: (1) it must prove by a preponderance of the evidence 2 that the

charged conduct occurred; (2) it must establish a nexus between that cond uct and

the efficiency of the service; and (3) it must demonstrate that the penalty imposed

is reasonable. 5 U.S.C. §§ 7513(a), 7701(c)(1)(B); Malloy v. U.S. Postal Service,

578 F.3d 1351, 1356 (Fed. Cir. 2009); Pope v. U.S. Postal Service, 114 F.3d

1144, 1147 (Fed. Cir. 1997). For the following reasons, we find that the agency

has satisfied its burden regarding the charge and nexus but not the penalty.

The agency proved both specifications of the unprofessional conduct charge.

¶5 In the proposal notice, the agency alleged that the appellant had a meeting

with her first-line supervisor and another employee on August 19, 2015, and

she was advised during this meeting that the agency had denied her reasonable

accommodation request based upon the determination of a Federal Occupational

Health Service (FOH) expert. IAF, Tab 7 at 53. The agency further alleged that

the appellant had asked for a copy of the FOH determination, and her first -line

supervisor told her that she would ask the Reasonable Accommodations

Coordinator for the requested information. Id. at 53-54. In pertinent part, the

agency alleged that the appellant left her office, went to the EEOCO Division,

2

Preponderant evidence is the 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).

4

and engaged in unprofessional conduct by (1) screaming in the hallway of the

EEOCO Division, which caused a “significant disruption at the workplace,” and

(2) “angrily flail[ing] [her] arms around and hit[ting] [the Reasonable

Accommodations Coordinator] on her arm.” Id. at 54-55. The agency further

alleged that employees in the EEOCO Division called security as a result of the

appellant’s “violent meltdown,” which included her crying, yelling, flailing, and

balling her hands into fists. Id. The administrative judge made credibility

determinations and found that the agency proved that the misconduct occurred

and that the misconduct constituted unprofessional conduct. ID at 7 -10.

¶6 In her cross petition for review, the appellant contends that the

administrative judge improperly sustained the charge, but we are not persuade d

by this argument. PFR File, Tab 9 at 19 n.5. 3 For instance, we have considered

the appellant’s assertion that the Board should find that her conduct was not

unprofessional because it occurred in the EEOCO Division. Id. (discussing

Daigle v. Department of Veterans Affairs, 84 M.S.P.R. 625 (1999)). In Daigle,

84 M.S.P.R. 625, ¶¶ 2, 6, the Board found that a disrespectful conduct charge

could not be sustained because, among other things, the appellant’s use of abusive

language about a manager occurred during an EEO counseling session. The

Board explained that, because EEO counseling sessions are a semi -confidential

means through which employees complain about other agency personnel and

complainants are likely to be emotionally distraught when reporting perceived

discrimination to the EEO counselor, it is reasonable to afford employees more

leeway regarding their conduct in such a context than they might otherwise be

3

We deny the appellant’s request to file a reply to the agency’s opposition to her cross

petition for review. PFR File, Tab 17. A cross petition for review is expected to

contain a party’s complete legal and factual arguments, and the Board’s regulations do

not provide for a reply brief in such a situation or as a matter of right. See 5 C.F.R.

§ 1201.114(a)-(b). Moreover, we are not persuaded by the appellant’s assertion that she

should be able to file a reply brief because the agency’s response to her cross petition

for review contains new and material legal arguments. See 5 C.F.R. §§ 1201.114(a)-(b),

(k), 1201.115(d).

5

afforded in other employment situations. Id., ¶ 6. This case is distinguishable

from Daigle in three important respects. First, by the appellant’s own admission,

she went to the EEOCO Division with the intention of obtaining a copy of the

FOH determination, Hearing Transcript (HT) at 402-04 (testimony of the

appellant), not to discuss specifically any of her EEO claims. Second, the

appellant’s conduct in this matter occurred in the hallway of the EEOCO

Division, not in an office or other confidential or semi-confidential setting.

Third, the appellant made unwanted physical contact with the Reasonable

Accommodations Coordinator during her outburst in the EEOCO Division, which

is not the type of conduct that might be expected even in a confidential EEO

counseling session. Cf. Daigle, 84 M.S.P.R. 625, ¶ 6 (noting that employees

could be expected to complain about other agency personnel in an EEO

counseling session and that the appellant’s abusive language was not directed at

the counselor). Thus, we find that the appellant’s conduct was unprofessional

even though it occurred in the EEOCO Division. However, as we discuss in more

detail below, infra ¶ 22, the context in which the appellant’s misconduct occurred

plays a significant role in assessing the reasonableness of the penalty under the

particular circumstances of this case.

¶7 The appellant also asserts that her conduct did not “rise to the level of

unprofessionalism” because she was “merely venting her frustrations about

an EEO matter, her reasonable accommodation, and disability.” PFR File, Tab 9

at 19 n.5. She asserts that she did not make a threat like the employee in Berkner

v. Department of Commerce, 116 M.S.P.R. 277 (2011), who was removed for

making inappropriate statements during a meeting with a union steward

concerning her discrimination complaint. PFR File, Tab 9 at 19 n.5. We find her

arguments unavailing. The administrative judge noted that it was undisputed that

the appellant’s outburst lasted at least 10 minutes, involved loud crying and

lamentation, pouting, stomping, and waving her arms. ID at 9. The

administrative judge made several credibility determinations, found that the

6

appellant screamed, and noted that she admitted gesturing with her arms and that

she was “hysterical,” which resulted in incidental contact with another

employee’s arm. ID at 9-10. She also found that the appellant’s actions

constituted unprofessional conduct. Id. The Board must give deference to

an administrative judge’s credibility determinations when they are based,

explicitly or implicitly, on the observation of the demeanor of witnesses

testifying at a hearing; the Board may overturn such determinations only when it

has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002) . The appellant has not presented such

sufficiently sound reasons. Further, we find nothing in Berkner, which upheld

that employee’s removal for inappropriate conduct, that precludes a finding of

unprofessional conduct on the facts of this case. Accordingly, we affirm the

administrative judge’s decision to sustain both specifications of the

unprofessional conduct charge.

The agency proved a nexus between the removal and the efficiency of the service.

¶8 Under 5 U.S.C. § 7513(a), an agency may remove an employee “only for

such cause as will promote the efficiency of the service.” The nexus requirement,

for purposes of whether an agency has shown that its action promotes the

efficiency of the service, means there must be a clear and direct relationship

between the articulated grounds for an adverse action and either th e employee’s

ability to accomplish his or her duties satisfactorily or some other legitimate

Government interest. Merritt v. Department of Justice, 6 M.S.P.R. 585, 596

(1981), modified by Kruger v. Department of Justice, 32 M.S.P.R. 71, 75 n.2

(1987). An agency may show a nexus between off-duty 4 misconduct and the

4

The administrative judge found that the appellant was on approved leave at the time of

the incident. ID at 10. The agency on review does not concede that the appellant was

off duty, PFR File, Tab 4 at 14 n.5, and her leave statements do not show tha t she was

on approved leave on the date and time of the incident, IAF, Tab 19 at 62. However,

the record reflects that the appellant sent an email to her first -line supervisor following

the August 19, 2015 reasonable accommodation request meeting in which she stated

7

efficiency of the service by three means: (1) a rebuttable presumption in certain

egregious circumstances; (2) preponderant evidence that the misconduct

adversely affects the appellant’s or coworkers’ job performance or the agency’s

trust and confidence in the appellant’s job performance; or (3) preponderant

evidence that the misconduct interfered with or adversely affected the agency’s

mission. Kruger, 32 M.S.P.R. at 74.

¶9 In the initial decision, the administrative judge found that the agency did

not prove nexus under any of these methods. ID at 10-13. In pertinent part, the

administrative judge found that the appellant’s misconduct (1) was not so plainly

egregious as to give rise to a presumption of nexus, (2) was not related to her job

performance and did not affect her immediate coworkers in the Administrative

and Policy office, (3) did not affect her supervisor’s confidence in her

performance, (4) did not interfere with the EEOCO Division’s job performance or

mission, and (5) did not interfere with or adversely affect the agency’s mission.

ID at 11-13. On review, the agency argues that the administrative judge erred

when she determined that the appellant’s unprofessional conduct did not

adversely affect the agency’s trust and confidence in her job performance, the job

performance of the EEOCO Division employees, or the agency’s mis sion. 5

PFR File, Tab 4 at 14-25.

¶10 We agree with the agency that it proved by preponderant evidence that it

established nexus in this matter. Indeed, both the Board and the U.S. Court of

Appeals for the Federal Circuit (Federal Circuit) have held that mi sconduct that

occurs on agency premises and involves agency personnel is sufficient to

that she was “not feeling well” and “should go home as soon as possible,” and her

first-line supervisor replied, “No problem,” at about 11:40 a.m. IAF, Tab 7 at 59.

Based on this email correspondence, we assume for the purposes of our analysi s that the

appellant was off duty during the incident in question, which occurred shortly after

noon that day. E.g., id. at 62-66.

5

The agency does not contend on review that the administrative judge’s other nexus

findings were in error. We therefore affirm the administrative judge’s findings in this

regard.

8

establish nexus. For example, in Parker v. U.S. Postal Service, 819 F.2d 1113,

1116 (Fed. Cir. 1987), the court held that there was a direct connection between

the petitioner’s misconduct and the efficiency of the service because the

petitioner “admittedly aided and abetted the sale of drugs to another employee at

that facility in a transaction that was arranged at least in part at work.” In Venson

v. Department of the Air Force, 10 M.S.P.R. 375, 377 (1982), aff’d, 706 F.2d 319

(Fed. Cir. 1983) (Table), the Board found and the Federal Circuit affirmed that

nexus existed for the appellant’s off-duty misconduct when the incident at issue

took place on agency premises, involved the disruption of functions s ponsored by

the agency, and resulted in the use of agency personnel who had to deal with the

appellant’s misconduct. Similarly, in Franks v. Department of the Air Force,

22 M.S.P.R. 502, 504-05 (1984), the Board found that the agency proved nexus

because the appellant’s off-duty intoxication on agency premises presented a

possible danger to others and involved the use of agency personnel for the

purpose of dealing with his conduct. See also Lowell v. Department of the Air

Force, 11 M.S.P.R. 453, 454-55 (1982) (finding nexus for off-duty misconduct

when the appellant’s actions occurred on agency property and required the use of

the agency’s security and investigations personnel).

¶11 The proposal notice, which was written by the appellant’s first -line

supervisor, explicitly stated that the August 19, 2015 incident, which “occurred at

work during work hours in front of [her] . . . colleagues . . . negatively affect[ed]

[the first-line supervisor’s] trust and confidence in [the appellant’s] job

performance.” IAF, Tab 7 at 57. In addition to disrupting the work of EEOCO

Division employees, agency security was called in to deal with the appellant’s

behavior. HT at 219-225 (testimony of the Reasonable Accommodation Case

Manager). As set forth above, the fact that the misconduct occurred on agency

property and involved agency personnel is sufficient to establish nexus.

¶12 Moreover, the evidence clearly demonstrates that the deciding official, who

was the appellant’s third-level supervisor, HT at 325-26 (testimony of the

9

deciding official), also lost confidence in her ability to perform her duties after

the incident in question. Importantly, the deciding official stated in the decision

letter, and reaffirmed in his testimony, that he “lost trust in [the appellant’s]

ability to behave in a professional manner with [her] co-workers and other

[agency] employees,” the charge “directly relate[d] to the performance of [her]

duties,” and “directly relate[d] to [his] confidence that [the appellant] will be able

to perform [her] assigned duties at a satisfactory level.” IAF, Tab 6 at 41-43; HT

at 337 (testimony of the deciding official). The deciding official explained that,

“[a]s an Investigative Analyst, [the appellant was] expected to demonstrate

professional characteristics in [her] dealings with co-workers and Regional and

Headquarters staff.” IAF, Tab 6 at 41.

¶13 The record supports the deciding official’s conclusion in this regard. For

example, the Investigations Analyst position description stated that assignments

“involve exercising good judgment and tact in dealing with personnel.”

IAF, Tab 19 at 192. Moreover, the appellant’s performance plan included a

critical element of “collaborating with others.” IAF, Tab 7 at 114 -19. The

agency described this critical element as, among other things, “[f]oster[ing] an

organizational climate that reinforces treating others with professionalism,

courtesy, [and] respect; is recognized at all levels as a model of professionalism

and fairness.” Id. at 117. The deciding official testified that the “collaborating

with others” critical element “included any time that [an employee was] [acting as

a liaison] or communicating with an entity.” HT at 368 (testimony of the

deciding official). Based on this evidence, we conclude that the agency proved

by preponderant evidence that it lost trust and confidence in the appellant’s job

performance as a result of her misconduct on August 19, 2015. See Ellis v.

Department of Defense, 114 M.S.P.R. 407, ¶ 9 (2010) (concluding that the agency

proved nexus through the deciding official’s declaration , which established that

the appellant’s conduct affected management’s trust and confidence in his job

performance); Adams v. Defense Logistics Agency, 63 M.S.P.R. 551, 555-56

10

(1994) (finding sufficient to establish nexus the deciding official’s unchallenged

testimony that the appellant’s off-duty possession of marijuana adversely affected

the agency’s trust and confidence in his job performance). Therefore, nexus is

established.

The appellant did not prove her affirmative defenses.

¶14 The administrative judge found that the appellant did not prove that her

disability or EEO activity was a motivating factor in the agency’s decision to

remove her or that she proved her failure to accommodate claim. ID at 14 -19. In

her cross petition for review, the appellant does not challenge the administrative

judge’s findings regarding motivating factor or her conclusion that she did not

prove her affirmative defenses. ID at 14-19. However, we will briefly address

such claims in light of recent case law. Regarding her disparate treatment claim,

her initial burden was to prove that her disability was a motivating factor in the

removal action. Pridgen v. Office of Management and Budget, 2022 MSPB 31,

¶ 40. Because we discern no error with the administrative judge’s motivating

factor analysis or conclusion regarding this claim, we do not reach the question of

whether her disability was a “but-for” cause of the removal action. Id., ¶¶ 40, 42.

¶15 The appellant’s prior EEO activity involved complaining of disability

discrimination. IAF, Tab 17 at 49-53. Such activity is protected by the

Americans with Disabilities Act, as amended by the Americans with Disabilities

Act Amendments Act, the standards of which have been incorporated by reference

into the Rehabilitation Act. 29 U.S.C. § 791(f); 42 U.S.C. § 12203(a); Pridgen,

2022 MSPB 31, ¶¶ 35, 44. This type of claim requires the appellant to prove

“but-for” causation as her initial burden. Pridgen, 2022 MSPB 31, ¶¶ 46-47.

Because we affirm the administrative judge’s finding that she did not meet her

initial burden to prove motivating factor, we also find that she would be unable to

prove “but-for” causation.

11

The removal penalty is mitigated to a 14-day suspension.

¶16 Having found that the agency proved both specifications, the charge, and

nexus, and that the appellant did not prove any affirmative defenses, we now turn

to the penalty. 6 Before undertaking this review, we note that since the issuance of

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 284 (1981), over 40 years

ago, the Board and the U.S. Court of Appeals for the Federal Circuit have held

that the Board’s statutory power includes the authority to modify or reduce a

penalty imposed on an employee by an agency’s adverse action. See, e.g.,

Mitchum v. Tennessee Valley Authority, 756 F.2d 82, 84 (Fed. Cir. 1985)

(requiring an administrative judge to ascertain whether the agency resp onsibly

balanced the relevant factors in the individual case and selected a penalty within

the tolerable limits of reasonableness); Van Fossen v. Department of Housing and

Urban Development, 748 F.2d 1579, 1581 (Fed. Cir. 1984) (noting that the

Board’s failure to consider a significant mitigating circumstance constituted an

abuse of discretion, and remanding for the Board to determine an appropria te

lesser penalty). That authority is derived from 5 U.S.C. § 1205(a)(1), as enacted

by the Civil Service Reform Act of 1978, which provides that the Board is

authorized and directed to “take final action” on any matter within its

jurisdiction. Douglas, 5 M.S.P.R. at 284, 296. Such authority is also consistent

with the same broad authority that the former Civil Service Commission had,

dating back to at least 1947, and that Congress wanted to “rem ain with the Board”

upon its creation. Id. at 285-86, 290-94. Congress “clearly intended the Board to

function in an independent, nonpartisan, quasi-judicial role,” id. at 287, and

exercise a “degree of independent discretionary judgment,” id. at 298. In

essence, and after briefing on the issue from a dozen Federal departments and

agencies, four Federal employee unions, and the parties, the Board held that,

although its authority to mitigate must be exercised with appropriate deference to

6

We need not remand the appeal because the record is fully developed on this issue.

12

agency management, it nevertheless has the authority to “mitigate penalties when

the Board determines that the agency-imposed penalty is clearly excessive,

disproportionate to the sustained charges, or arbitrary, capricious, or

unreasonable.” Id. at 284, 301-02 (further holding that the Board, like its

predecessor Civil Service Commission, “will consider whether a penalty is clearly

excessive in proportion to the sustained charges, violates the principle of like

penalties for like offenses, or is otherwise unreasonable u nder all the relevant

circumstances.”). Thus, the Board’s role “is essentially to assure that the agency

did conscientiously consider the relevant factors and did strike a responsible

balance within tolerable limits of reasonableness.” Id. at 306. The ultimate

burden is upon the agency to persuade the Board of the appropriateness of the

penalty imposed. Id. at 307.

¶17 The Board has held that the seriousness of the offense is always one of the

most important factors in assessing the reasonableness of an agency’s penalty

determination. Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 7 (2013).

There can be no dispute that the sustained misconduct —screaming in the

workplace and making unwanted physical contact with another agency

employee—is serious. HT at 367 (testimony of the deciding official) (testifying

that the appellant’s misconduct was “very, very serious” because employees were

“alarmed” and “Security was called”). Other aggravating factors include the

appellant’s 5-day suspension in February 2015, just 6 months before the incident

at issue here, based on a charge of unprofessional conduct (including

specifications that she yelled or screamed at various agency officials and ran and

screamed through the headquarters building), a letter of reprimand in March 2014

based on failure to follow instructions, and two letters of warning in 2014 for

loud and unprofessional behavior and unprofessional behavior, respectively.

IAF, Tab 7 at 73-89. Additionally, as discussed above, supra ¶¶ 11-13, the

appellant’s misconduct negatively affected her supervisors’ confidence in her

ability to perform her assigned duties. The deciding official also stated in the

13

decision letter, and reaffirmed in his testimony, that the appellant had not

demonstrated a good potential for rehabilitation because she expressed no

remorse for her actions, she did not seem to recognize that her behavior was

inappropriate, and the relevant events occurred less than 1 year after she received

a 5-day suspension for unprofessional conduct as a result of “yelling” at her

supervisor and “running and screaming through the . . . headquarters building.”

IAF, Tab 6 at 44; HT at 337 (testimony of the deciding official).

¶18 We now turn to “mitigating circumstances surrounding the offense such as

unusual job tensions . . . [and] mental impairment,” among other things.

Douglas, 5 M.S.P.R. at 305. There are numerous mitigating factors present in

this case. For example, we have considered the appellant’s argument that the

removal action should be mitigated because she suffers from various medical

conditions, including hearing loss, anxiety, depression, and adjustment disorder

that contributed to her behavior during the incident in question. PFR File, Tab 9

at 24-25. When mental impairments or illnesses are reasonably substantiated and

shown to be related to the reasons for removal, they must be considered in the

penalty analysis. Malloy, 578 F.3d at 1356.

¶19 The appellant’s numerous medical conditions are documented in the record

and were well-known to the agency. The appellant was appointed in 2010 under

Schedule A authority, 5 C.F.R. § 213.3102(u), for individuals with a severe

physical disability (hearing loss). IAF, Tab 9 at 71. Due to the appellant’s

earlier reasonable accommodation requests, 7 Family and Medical Leave Act of

1993 (FMLA) requests, 8 and prior EEO activity, 9 the agency and the appellant’s

supervisors knew that the appellant was seeing an oncologist for breast cancer

7

E.g., IAF, Tab 15 at 22-52, Tab 17 at 69, Tab 19 at 197-201.

8

The appellant testified, and the record reflects, that she “us[ed] a whole lot more

leave,” including FMLA leave, between March and mid -August 2015. HT at 51

(testimony of the appellant); IAF, Tab 15 at 63-66, Tab 19 at 60-62.

9

E.g., IAF, Tab 6 at 13-14, 16-34, 118-26.

14

and lymphedema treatments; a cardiologist for stress, shortness of breath, and

heart palpitations; a psychiatrist for anxiety and depression; and an audiologist

for hearing loss and hearing aid issues.

¶20 Turning to the incident in question, some of the appellan t’s medical

conditions likely played a role in her behavior. The appellant testified that, after

her supervisor advised her during the August 19, 2015 meeting that her

accommodation request was denied, IAF, Tab 15 at 51 -52, she felt “numb” and

“despair,” she “started feeling anxious,” and she “started crying,” HT at 400 -02

(testimony of the appellant). She further testified that she left her office and

decided to go to the EEOCO Division to obtain the FOH determination

upon which the denial of her reasonable accommodation request was based.

Id. at 402-03 (testimony of the appellant). Once she arrived at the EEOCO

Division and was told that she would have to make a Freedom of Information Act

request to obtain the FOH determination, the appellant testified that she was

“disappointed,” “emotionally distraught,” “crying,” “may” have spoken loudly,

held her hands in fists and started shaking them up and down, said she felt “like

throwing something,” stomped her foot, and pouted. Id. at 405, 408, 410-13

(testimony of the appellant).

¶21 The Board has found that a medical or mental impairment is not a

significant mitigating factor in the absence of evidence that the impairment can

be remedied or controlled, i.e., when the potential for rehabilitation is poor.

Mingledough v. Department of Veterans Affairs, 88 M.S.P.R. 452, ¶ 12 (2001).

Here, however, the appellant’s doctor indicated on March 20, 2015, that

accommodations of an alternate work schedule (AWS) with one day off per pay

period, a delayed start time, and 3 days per week of telework, which the agency

had denied, would give the appellant the rest and recovery she needed for her

numerous medical conditions and allow her “to get additional sleep [that] she

needs due to insomnia [and] will allow her to better manage her anxiety.” IAF,

Tab 19 at 65, Tab 29 at 4-6. We therefore find that the appellant’s medical

15

conditions and mental impairments could potentially be controlled and constitute

a mitigating factor. 10

¶22 Additionally, although we have sustained the charge, the context in which

the misconduct occurred is relevant to determine whether the penalty imposed is

reasonable. Daigle, 84 M.S.P.R. 625, ¶ 6. Indeed, the context in which the

appellant’s misconduct occurred was her attempts to use the EEO process to

address her known disabilities. It is not unusual to have high stress engagements

when conflict management issues arise in the workplace, such as EEO allegations

and the bringing forth of allegations of wrongdoing in the workplace. As the

administrative judge noted in the initial decision in her nexus analysis, the type of

disruption described in this case required EEO specialists to assess, inform, and

console distraught employees. ID at 13. Significantly, the administrative judge

found that none of the employees in the EEOCO office felt threatened by the

appellant’s behavior. ID at 8-9. Moreover, the administrative judge concluded

that the appellant’s emotional upset during the incident led to her “incidental

contact” with the employee’s arm. ID at 9. For these reasons, we view the

context surrounding the incident of unprofessional conduct as a mitigating factor.

10

The administrative judge found that the appellant had telework and AWS privileges at

one time, but that they “did not help her to arrive at work on time, and did not prevent

her from engaging in repeated inappropriate conduct.” ID at 18. She therefore

concluded that the appellant did not prove her disability discrimination claim because

the requested accommodations, even if granted, would not be effective. Id. This

finding appears to be based on the fact that, as a result of a reprimand on March 24,

2014, for tardiness and failure to follow leave-requesting instructions, the agency

disqualified the appellant from telework and an AWS at that time. ID at 2; IAF, Tab 8

at 91-93. The fact that the requested accommodations may not have prevented the

appellant’s tardiness, failure to follow leave-requesting procedures, or other misconduct

in March 2014 or earlier does not demonstrate that providing an accommodation such as

that indicated by the appellant’s doctor in March 2015 would not control, for purposes

of determining the reasonableness of the penalty, the medical conditions that played a

role in the type of unprofessional conduct at issue in this case. See, e.g., Complainant

v. Department of Health and Human Services, EEOC Appeal No. 0120111422, 2015

WL 1419939 (Feb. 25, 2015), at *3 (holding that employers have an ongoing obligation

to provide reasonable accommodations).

16

¶23 There also are other mitigating factors. Although the appellant had a

minimally successful 2014 performance appraisal, her June 2015 rat ing was fully

successful, which the deciding official found “promising,” and she had 5 years of

Federal service. IAF, Tab 14 at 68-89; HT at 143 (testimony of the proposing

official), 363-64, 369 (testimony of the deciding official). We have also

considered that the appellant was asked during her testimony whether she was

sorry for what transpired on August 19, 2015. HT at 424 (testimony of the

appellant). Although the appellant initially stated that she was sorry because

she “[felt] like [she] gave [her supervisors] what they wanted,” which was

“ammunition to put [her] out of work,” she also testified that she was “very

sorry” for what happened, that she “wish[ed] that [she] was not as emotional,”

“[she] tried not to be,” and “[t]hat’s why [she] tried to get help.” Id. These

statements, showing that the appellant acknowledged the role her emotions played

in the misconduct as well as her desire to control those emotions and “get help,”

demonstrate remorse for the past conduct and a potential for reha bilitation.

¶24 Finally, we have considered the consistency of the penalty with those

imposed on other employees for the same or similar offenses. The Board has

recently clarified that, when analyzing disparate penalty claims, 11 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, ¶¶ 10, 14.

¶25 The deciding official testified that he was only aware of the two comparator

employees identified in the proposal notice; he denied knowing about any other

comparators. HT at 350-56 (testimony of the deciding official); IAF, Tab 6 at 43,

Tab 7 at 56. The two comparator employees identified in the proposal notice

were: (1) a GS-12 Auditor who was removed in 2015 for a third offense of

unprofessional conduct (yelling at his manager, using vulgar language, walking

11

The appellant’s attorney indicated during the hearing that the comparator evidence

was only relevant to the penalty analysis. HT at 356 -58.

17

towards his manager with his fists clamped, and screaming at other staff) and for

a first offense of damage to Government property (slamming his Government

laptop into his desk); and (2) a GS-13 Auditor who was suspended for 14 days in

2012 for a third offense of disrespectful conduct towards a supervisor (raising her

voice at her supervisor, repeatedly interrupting her supervisor during a meeting,

and refusing to discuss work-related matters with her supervisor) and a second

offense of failure to follow instructions. 12 The deciding official stated in the

decision letter that the appellant’s actions were similar to the first comparator’s

misconduct in that “[her] behavior alarmed the witnesses to such a degree that

[she was] escorted out of the building” and the “level of hostility and anger that

[she] displayed . . . caused employees . . . to fear for their personal safety.”

IAF, Tab 6 at 43. We disagree with the deciding official’s conclusion that the

appellant’s misconduct was similar to the misconduct of comparator (1). Rather,

we find that the sustained misconduct of comparator (1), in total, is more serious

than the misconduct sustained against the appellant. Accordingly, we are not

persuaded that comparator (1) is a proper comparator. We further fin d that the

agency’s decision to issue to comparator (2) a 14-day suspension for disrespectful

conduct and failure to follow instructions supports mitigating the penalty in this

matter given the agency’s clear reliance on this comparator despite having

apparently been assigned to a different work unit from the appellant . See Singh,

2022 MSPB 15, ¶13 (finding that a comparator need not always have to be in the

same work unit or under the same supervisor.). The agency, which bears the

burden to prove that the removal penalty is reasonable, Malloy, 578 F.3d at 1356,

has not persuasively explained its decision to remove the appellant instead of

issuing her a 14-day suspension as it did for comparator (2). We therefore find

that this Douglas factor weighs in the appellant’s favor.

¶26

12

The corresponding documentation for these comparators is at IAF, Tab 19 at 234 -54,

Tab 20 at 105-10, 116-21.

18

¶27 In conclusion, we find that the mitigating factors, including the context in

which the misconduct occurred and the impact of the appellant’s medical and

mental conditions on her behavior during the incident in question, coupled with

the appellant’s sincere expressions of remorse, and the agency’s unpersuasive

comparator analysis, outweigh the aggravating factors. The penalty of removal is

therefore disproportionate to the sustained charge and otherwise unreasonable

under all the relevant circumstances. Douglas, 5 M.S.P.R. at 284, 301-02.

Accordingly, we mitigate the removal penalty to a 14 -day suspension.

ORDER

¶28 We ORDER the agency to cancel the removal action, substitute in its place

a 14-day suspension, and restore the appellant to her Investigations Analyst

position. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir.

1984). The agency must complete this action no later than 20 days after the date

of this decision.

¶29 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶30 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

19

¶31 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision in this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶32 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of

the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

20

NOTICE OF APPEAL RIGHTS 13

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 fil e

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).

13

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.

21

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 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

22

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

23

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. 14 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:

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 websi te at

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

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

14

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.

24

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.

DEFENSE FINANCE AND ACCOUNTING SERVICE

Civilian Pay Operations

DFAS BACK PAY CHECKLIST

The following documentation is required by DFAS Civilian Pay to compute and pay back pay

pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following

checklist to ensure a request for payment of back pay is complete. Missing documentation may

substantially delay the processing of a back pay award. More information may be found at:

https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by

vendor pay, not DFAS Civilian Pay.

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the

specific dates of the back pay period within the ticket comments.

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket

comments as to why the documentation is not applicable:

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s

until notified to do so by DFAS Civilian Pay.***

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until

notified to do so by DFAS Civilian Pay.***

☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee

in a job undertaken during the back pay period to replace federal employment.

Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,

include record of any unemployment earning statements, workers’ compensation,

CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,

or severance pay received by the employee upon separation.

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority

under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment

they may have received. The payroll office must collect the debt from the back pay award. The

annual leave will be restored to the employee. Annual leave that exceeds the annual leave

ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).

2

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by

the Merit Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information

describing what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:

a. Employee name and social security number.

b. Detailed explanation of request.

c. Valid agency accounting.

d. Authorized signature (Table 63).

e. If interest is to be included.

f. Check mailing address.

g. Indicate if case is prior to conversion. Computations must be attached.

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be

collected (if applicable).

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday

Premium, etc. with number of hours and dates for each entitlement (if applicable).

2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address to

return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of the

type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave

to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and

required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump Sum

Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided.

c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s

Payroll/Personnel Operations at 504-255-4630.

DISSENTING OPINION OF TRISTAN L. LEAVITT

in

Sheila Joshalyn Williams v. Department of Health and Human Services

MSPB Docket No. DC-0752-16-0558-I-1

¶1 For the reasons explained below, I respectfully dissent from the majority

opinion in this case.

¶2 I agree with the majority’s findings that the agency proved both

specifications, the charge, and nexus, and that the appellant failed to prove her

affirmative defenses. I don’t find wildly unreasonable the majority’s rationale for

believing a 14-day suspension is a more appropriate penalty than removal. Yet

nor do I find wildly unreasonable the agency’s rationale for removing the

appellant, and therein lies the problem. In a case such as this where reasonable

minds could differ, the Board’s role with respect to reviewing the penalty has

been clearly defined by the seminal 1981 decision in Douglas v. Veterans

Administration: “Our role in this area, as in others, is principally to assure that

managerial discretion has been legitimately invoked and properly exercised.”

5 M.S.P.R. 280, 301 (1981). More specifically, according to Douglas:

[T]he Board’s review of an agency-imposed penalty is essentially to

assure that the agency did conscientiously consider the relevant

factors and did strike a balance within the tolerable limits of

reasonableness. Only if the Board finds that the agency failed to

weigh the relevant factors, or that the agency’s judgmen t clearly

exceeded the limits of reasonableness, is it appropriate for the Board

to then specify how the agency’s decision should be corrected to

bring the penalty within the parameters of reasonableness.

5 M.S.P.R. at 306 (emphasis added). This holding of Douglas has remained

intact to this day. See, e.g., Thomas v. Department of the Army, 2022 MSPB 35,

¶ 19. There are several reasons for the Board to defer to reasonable exercises of

judgment and discretion by agency officials. As noted in Douglas, the agency

has “primary discretion in managing its workforce,” including in maintaining

2

employee discipline and efficiency. Douglas, 5 M.S.P.R. at 306. Agency

officials are closest to the facts and circumstances of the misconduct in any given

case, and are in the best position to weigh its gravity as it relates to the mission

and work of the agency. Furthermore, the agency actuall y has to live with the

outcome of the disciplinary process, whether that be returning the employee to

service after appropriate discipline or continuing without the assistance of

the employee.

¶3 In light of these considerations and their longstanding application to the

Board since Douglas, “it is decidedly not the Board’s role to decide what penalty

we would impose if we were the deciding officials,” as I noted last year in my

dissent in Chin v. Department of Defense, 2022 MSPB 34. Or, as the Board wrote

in Douglas: “The Board’s role in this process is not to insist that the ba lance be

struck precisely where the Board would choose if the Board were in the agency’s

shoes in the first instance[.]” Douglas, 5 M.S.P.R. at 306. Yet here, the majority

deviates from these well-settled principles to mitigate the agency’s reasoned

penalty of removal to a 14-day suspension.

¶4 The Board has frequently stated that the nature and seriousness of the

offense, and its relation to the employee’s duties, position, and responsibility, is

the most important factor in assessing the reasonableness o f a penalty. Singh v.

U.S. Postal Service, 2022 MSPB 15, ¶ 18. The deciding official found the

appellant’s misconduct was “very, very serious.” Hearing Transcript (HT) at 336.

He testified this was the most significant factor in his penalty analysis. Id. He

also found the appellant’s misconduct was “directly relate[d] to [her] position

with the Agency.” Initial Appeal File (IAF), Tab 1 at 15. In particular, he

considered that a critical element of the appellant’s performance plan was

“Collaborating with Others.” Id. at 16; HT at 367. This critical element lists as a

requirement: “Fosters an organizational climate that reinforces treating others

with professionalism, courtesy, respect; is recognized at all levels as a model of

3

professionalism and fairness . . . Behaves in a professional manner at all times.” *

IAF, Tab 7 at 102. The deciding official lost trust in the appellant’s “ability to

behave in a professional manner” and exhibit self -control. IAF, Tab 1 at 15; HT

at 367.

¶5 Notwithstanding, the majority mitigates the penalty based on its analysis of

the following factors: (1) the context in which the appellant’s misconduct

occurred; (2) the appellant’s expression of remorse; (3) the appellant’s fully

successful performance rating in June 2015, see IAF, Tab 7 at 114; (4) the

appellant’s length of service; (5) the appellant’s medical conditions; and (6) the

consistency of the penalty with those imposed on other employees for the same or

similar offenses.

¶6 Like my colleagues, I am sympathetic to the context in which the

appellant’s misconduct occurred in this instance—namely, that she was in the

Equal Employment Opportunity (EEO) office. However, as the deciding official

correctly observed, the appellant’s misconduct was not “an isolated occurrence of

unprofessional behavior.” IAF, Tab 1 at 15. Notably, he considered that the

appellant received a 5-day suspension effective February 23, 2015, for

unprofessional conduct. Id.; see IAF, Tab 7 at 82-89. Further, her 2014 midyear

progress review and 2014 performance appraisal revealed numerous incidents

where she failed to act in a professional manner with her coworkers. IAF, Tab 1

at 16; see IAF, Tab 7 at 105, 112-13. One such incident occurred in

October 2014, when the appellant was “screaming and running through the OIG

headquarters building.” IAF, Tab 1 at 16; see IAF, Tab 7 at 113. She received a

Letter of Reprimand on March 24, 2014, for failure to follow instructions. IAF,

Tab 1 at 16; see IAF, Tab 7 at 79-81. She also received letters of warning on

January 24 and June 27, 2014, for unprofessional behavior. IAF, Tab 1 at 18; see

*

Between late January and early February 2014, the appellant completed three online

training courses regarding professionalism and courtesy. IAF, Tab 7 at 75, 90-92; HT

at 370.

4

IAF, Tab 7 at 73-78. None of these prior instances of unprofessionalism occurred

in the EEO office, so the misconduct was not isolated to a specific setting.

¶7 The deciding official found the appellant’s past history of counseling and

discipline significant in reaching his decision. HT at 336. He also found the

appellant failed to express remorse for her conduct and did not appear to

recognize that her conduct was inappropriate. IAF, Tab 1 at 18. For instance, he

considered that the appellant stated in her written reply, “Unfortunately, I stated

that I felt like throwing something, but this was no different from someone

implying they needed to kick a trashcan.” IAF, Tab 1 at 15, Tab 6 at 111. He

determined, in light of the appellant’s history of prior discipline and counseling,

as well as her lack of remorse, that no lesser penalty would suffice to deter future

misconduct. HT at 370.

¶8 The majority notes that, in response to being asked at the hearing whether

she was sorry for what happened on August 19, the appellant testified she is “very

sorry” and wishes that she was “not as emotional” and “not in that place.” HT

at 424. However, at the beginning of her response to this question, the appellant

said she was sorry because she gave the agency “ammunition” to remove her and

she “was trying to keep [her] job.” Id. She reiterated, at the end of her response,

that she was sorry because she “felt like in the end [she] gave them what they

needed to put [her] out of work” and she “wanted [her] job.” Id. I find this is

indicative of remorse as to the consequences of the misconduct, not as to the

misconduct itself. I also find significant that the appellant did not offer any

apology in responding to the proposed action. See generally IAF, Tab 6

at 99-112. I would not disturb the deciding official’s determination as to the

appellant’s level of remorse. See Wynne v. Department of Veterans Affairs,

75 M.S.P.R. 127, 137 (1997) (the appellant’s “belated, lukewarm expression of

remorse” was insufficient to show rehabilitative potential and did not constitute a

significant mitigating factor).

5

¶9 I agree with the majority that the appellant’s length of service and fully

successful performance review in June 2015 are mitigating factors. However, the

deciding official considered these factors and found they did not outweigh the

aggravating factors. IAF, Tab 1 at 16; HT at 365, 369. He found “that the five

years of federal service[] was mitigating.” HT at 365. While he “saw the 2015

review as something promising,” he “didn’t see it as . . . a substantial change over

a substantial period of time.” HT at 369. Indeed, the misconduct at issue in this

appeal took place in August 2015, after the improvement documented in

June 2015.

¶10 The majority also finds mitigating that some of the appellant’s medical

conditions “likely” played a role in her behavior and that the appellant’s medica l

conditions and mental impairments “could potentially” be controlled. The

administrative judge found the appellant failed to meet her burden to prove that

her requested accommodations—a delayed start time, an alternative work

schedule (AWS), and 3 days of telework per week—would have been effective.

Initial Decision at 18. The administrative judge noted, “[I]t is undisputed that the

appellant did have telework and AWS privileges at one time, and these . . .

did not prevent her from engaging in repeated inappropriate conduct, resulting in

progressive discipline.” Id. In addition, the administrative judge found the

appellant “admitted the agency never denied her requests for leave in connection

with her mental health conditions” and that the agency grant ed the appellant a

delayed start time. Id. The majority affirms these findings.

¶11 The majority’s speculative conclusion that the appellant’s medical

conditions and mental impairments “could potentially” be remedied or controlled

is inconsistent with affirming the administrative judge’s findings concerning the

appellant’s failure to accommodate claim. I recognize that an employer’s

obligation to provide reasonable accommodation is ongoing and an employee’s

medical condition and accommodation needs may change over time. However,

Mingledough v. Department of Veterans Affairs, 88 M.S.P.R. 452, ¶ 12 (2001),

6

which the majority cites, does not contemplate relying on speculation to support

mitigation. Rather, the Board in Mingledough indicated that medical or mental

impairment is not a significant mitigating factor unless there is “evidence that the

impairment can,” not might, “be remedied or controlled.” Id. (emphasis added).

The Board determined the appellant’s psychological impairments were “not a

significant mitigating factor in light of the seriousness of his misconduct and his

poor potential for rehabilitation.” Id. There was “no evidence that the

appellant’s psychological impairments have been remedied or controlled” and the

appellant’s potential for rehabilitation was “questionable at best.” Id. (emphasis

added). Accordingly, the Board reinstated the removal which the administrative

judge had mitigated to a suspension. Id.

¶12 Here, the deciding official gave serious consideration to the appellant’s

medical conditions in determining what penalty to impose. He explicitly

considered the appellant’s assertions that she suffers from anxiety and depression;

that her medical conditions caused her behavior; and that the work environment

was damaging to her health. IAF, Tab 1 at 18; HT at 365-66. However, he

concluded “these mitigating circumstances do not outweigh the seriousness of the

misconduct at issue.” IAF, Tab 1 at 18. He also found the appellant had not

provided any evidence that her unprofessional conduct would not occur again,

particularly given that her behavior had not improved despite a history of lesser

disciplinary actions. Id. at 18-19. He found the appellant failed to establish “any

correlation between her lack of self-control and her medical condition” or her

actions on the day in question. HT at 365-67. I would not disturb these

well-reasoned conclusions.

¶13 As to the consistency of the penalty with those imposed on other employees

for the same or similar offenses, the deciding official considered two

comparators. IAF, Tab 1 at 17; HT at 350-51. The majority finds comparator (2)

supports mitigation of the penalty. The appellant was an Investigations Analyst

in the Office of Investigations and had just over 5 years of service, whereas

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comparator (2) was an Auditor in the Office of Audit Services with nearly

26 years of service. IAF, Tab 1 at 7, 13, 16, Tab 20 at 116; see also Singh,

2022 MSPB 15, ¶ 13 (“[T]he fact that two employees come from different work

units and/or supervisory chains remains an important factor in determining

whether it is appropriate to compare the penalties they are given. In most cases,

employees from another work unit or supervisory chain will not be proper

comparators.”); Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 14 (2013)

(finding length of service to be a “significant distinction” in evaluating the

difference in treatment between employees).

¶14 The deciding official also found the appellant’s misconduct distinguishable

from comparator (2)’s misconduct, in that the appellant’s “behavior alarmed the

witnesses to such a degree that [she was] escorted out of the building” and

“caused employees in the HHS/EEOCO Division to fear for their personal

safety.” IAF, Tab 1 at 17. This is well-supported in the record. See HT at 177

(proposing official testifying, “I frankly was afraid for individuals in the office

and the safety”); HT at 224 (Reasonable Accommodation (RA) Case Manager

testifying she “was absolutely concerned about workplace safety” and reported to

security that the appellant was “having a violent or emotional meltdown”); IAF,

Tab 7 at 62 (RA Case Manager written memorandum stating, “I explained that

there was an extremely upset employee that was having a violent meltdown and

that the situation was getting worse and we needed assistance quickly”); id. at 64

(EEO Office Branch Chief written memorandum stating, “While most did not feel

physically threatened by what had just happened, they did express concern that an

event like this could become something much worse and how do we protect

ourselves is [sic] this happens again but at a higher threat level”); id. at 66, 69

(two additional employees indicating in written memoranda that they alerted

security again because no guard had arrived although the RA Case Manager had

already requested assistance; one employee stated, “This was a situation where

the visiting complainant became violent”); id. at 72 (EEO Office Director written

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memorandum stating the appellant’s “entire demeanor was unsettling, disruptive,

and threatening to the safety of the staff”). Thus, I would not disturb the deciding

official’s assessment that comparator (2) is not a proper comparator. In any

event, mere unevenness in the application of a penalty is not a reason in itself for

invalidating the penalty. Rogers v. Department of Defense Dependents Schools,

814 F.2d 1549, 1555 (Fed. Cir. 1987).

¶15 Overall, the deciding official deliberately and thoroughly weighed the

Douglas factors. I respect that my fellow Board members would have weighed

these factors differently. Because the majority believes mitigating factors

outweigh aggravating factors in this case, it concludes that “the penalty of

removal is therefore disproportionate to the sustained charge and [‘]otherwise

unreasonable under all the relevant circumstances[’]” (q uoting Douglas,

5 M.S.P.R. at 302). Clearly Douglas indicates the Board will and should consider

these factors. However, having considered those factors, only if an agency’s

judgment “clearly exceeded the limits of reasonableness,” id. at 306, putting them

outside “tolerable limits of reasonableness,” id. at 302, 306, does Douglas hold it

appropriate for the Board to “bring the penalty within the parameters of

reasonableness,” id. at 306. I strongly believe that in a case such as this where

reasonable minds could differ, an agency’s judgment has not “clearly exceeded

the limits of reasonableness,” and management’s proper exercise of discretion

should not be displaced.

/s/

Tristan L. Leavitt

Member