Debby Kantorowicz v. Department of the Air Force

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEBBY L. KANTOROWICZ, DOCKET NUMBER

Appellant, AT-0752-21-0395-I-1

v.

DEPARTMENT OF THE AIR FORCE, DATE: June 5, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bradley R. Marshall, Esquire, Mt. Pleasant, South Carolina, for the

appellant.

Christopher Hawthorne, Esquire, Joint Base Andrews, Maryland, for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

2

FINAL ORDER

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

sustained the appellant’s removal for misconduct. On petition for review, the

appellant argues, among other things, that the agency’s charges against her lacked

specificity, the deciding official’s consideration of ex parte conversations

violated her due process rights and constituted harmful error, and the agency

failed to train her adequately in violation of merit systems principles . Generally,

we grant petitions such as this one only in the following circumstances: the

initial decision contains erroneous findings of material fact; the initial decision is

based on an erroneous 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 to supplement the administrative

judge’s findings related to the negligent performance of duties charge and the

appellant’s due process and harmful error claims, to address the appellan t’s new

argument that her alleged lack of training violated 5 U.S.C. § 2301(b)(7), and to

supplement the administrative judge’s penalty analysis, we AFFIRM the initial

decision.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In August 2019, the agency noncompetitively appointed the appellant to the

position of Nonappropriated Fund (NAF) Human Resources Officer (HRO) under

3

the Schedule A appointment authority, for which the appellant claimed eligibility

based on a disability. Initial Appeal File (IAF), Tab 5 at 99, Tab 15 at 22-24,

Tab 27 at 51-53. As the NAF HRO, the appellant was responsible for managing

an installation NAF HR office and executing its programs, including ensuring

such programs followed regulations and policies. IAF, Tab 5 at 86-89. Her

specific duties included the recruitment and placement of NAF employees, which

required knowledge of laws, regulations, and policies related to recruitment and

staffing. Id. at 87-88. Prior to her appointment as NAF HRO, the appellant

gained several years of experience in recruiting and staffing and interpreting

policy and regulations working in HR for the agency, including during a previous

appointment as a NAF HRO from 2017 to 2018. Id. at 72-75.

¶3 In September 2019, the appellant received 1 week of in -person training at

the Air Force Services Center (AFSVC), which provided technical support to

installation HR offices on USA Staffing—a software application integrated with

the USA Jobs website which the agency adopted in December 2019 as its hiring

platform for NAF positions. IAF, Tab 5 at 106, 138, Tab 12 at 89, Tab 15 at 205.

AFSVC provided each attendee with the agency NAF USA Staffing User Guide

(USA Staffing Guide). IAF, Tab 5 at 135-212, Tab 15 at 253-54. From its

adoption until approximately September 2020, the appellant’s office used USA

Staffing to advertise and fill positions. IAF, Tab 28, Hearing Recording Day 1

(HR-1) (testimony of the appellant’s subordinate), Tab 30, Hearing Recording

Day 2 (HR-2) (testimony of the appellant), Tab 32 at 4-6. In August or

September 2020, the subordinate to whom the appellant had assigned USA

Staffing responsibilities left the agency. HR-2 (testimony of the appellant).

¶4 In September 2020, the appellant and the NAF HR office began filling

positions through a shortened process by soliciting paper résumés mainly through

word-of-mouth, providing those résumés to hiring managers, and hiring

employees directly without competing vacancies through USA Staffing. HR-1

(testimony of the appellant’s subordinate). The appellant informed her supervisor

4

that she obtained permission from AFSVC to fill vacancies by directly appointing

individuals using paper résumés in this manner because positions at the

installation were “hard-to-fill.” IAF, Tab 5 at 59-60, 130, HR-1 (testimony of the

appellant’s supervisor). Six employees were hired through this procedure. IAF,

Tab 5 at 129, 238-43, HR-1 (testimony of the appellant’s supervisor).

¶5 After learning these procedures were incorrect, the agency removed the

appellant based on two charges of misconduct: (1) negligent performance of

duties, for failing to announce vacancies and directly hiring candidates without

competition in violation of agency policy; and (2) lack of candor, for telling her

supervisor that AFSVC gave her permission to accept paper résumés from

applicants and hire directly because positions at the installation were hard to fill.

IAF, Tab 5 at 16-29, 109-114. The appellant appealed her removal to the Board.

IAF, Tab 1.

¶6 After affording the appellant her requested hearing, the administrative judge

affirmed the appellant’s removal, finding that the agency proved its charges by

preponderant evidence, that the appellant failed to prove her affirmative defenses

of race, sex, or disability discrimination, that the appellant failed to show she was

denied minimum due process, and that the agency proved a nexus between its

action and the efficiency of the service and the reasonableness of its penalty.

IAF, Tab 39, Initial Decision (ID) at 3-21. On review, among other contentions,

the appellant reiterates her argument that the charges’ lack of specificity violated

her due process rights and constituted harmful error. Petition for Review (PFR)

File, Tab 1. The appellant also raises a new argument that the agency’s alleged

failure to adequately train her violated the merit systems principle in 5 U.S.C.

§ 2301(b)(7). Id. at 12-15. The agency filed a response. PFR File, Tab 3.

¶7 Upon review, we agree with the administrative judge’s findings in the

initial decision. However, the administrative judge did not analyze several issues

raised during the course of the appeal which merit discussion—namely, the

agency’s allegation in the negligent performance of duties charge that the

5

appellant violated the NAF Personnel Guide, and the appellant’s allegations that

the lack of candor charge’s insufficient specificity and the deciding official’s

consideration of ex parte communications violated her due process rights and

constituted harmful error. Accordingly, in addition to the appellant’s new

allegation that her purported lack of training violated 5 U.S.C. § 2301(b)(7), we

address these contentions here.

The appellant’s conduct described in the negligent performance of duties charge

violated the agency’s NAF Personnel Guide.

¶8 In the negligent performance of duties charge, the agency alleged that the

appellant’s conduct was negligent because she failed to adhere to agency policies,

namely the NAF Personnel Guide 3 and the USA Staffing Guide. IAF, Tab 5

at 109. In finding that the agency proved this charge, the administrative judge

discussed how the appellant knew or should have known of her responsibility to

follow agency policy in the USA Staffing Guide but failed to do so. ID at 7.

Specifically, the administrative judge noted that the record reflects that the

appellant was given a copy of the USA Staffing Guide and attended training on

the process in September 2019, nearly a year before giving a direction to initiate a

“direct hire” or “straight hire” process. Id. The administrative judge did not

discuss the appellant’s alleged violation of the agency’s NAF Personnel Guide,

and accordingly we do so here.

¶9 Although the administrative judge was correct to find that the appellant ’s

conduct violated the USA Staffing Guide, ID at 4, 7-8, the June 2019 NAF

Personnel Guide contains the instruction that most aptly captures the scope of the

appellant’s violation of agency hiring policy. Section 4.5.1 of the NAF Personnel

3

This document is referenced by its full title, the Nonappropriated Fund Personnel

Program Management and Administration Procedures Guide, or other abbreviations

thereof, at other points in the record. See, e.g., IAF, Tab 5 at 115, 233. Although the

document itself is not in the record, it is publicly available on the internet and the

Board may take official notice of publicly available documents. Graves v. Department

of Veterans Affairs, 123 M.S.P.R. 434, ¶ 19 n.3 (2016).

6

Guide states in relevant part: “NAF-HR Section is responsible for ensuring: . . .

4.5.1.3. All positions open for recruitment are announced via the authorized

web-based system. There is no restriction in using other recruitment sources

as well; however, applicants must be directed to make application

via the authorized website.” U.S. Air Force, NAF Personnel Program

Management and Administration Procedures Guide, § 4.5.1 (June 2019),

https://www.lafss.com/wp-content/uploads/docs/naf-human-resources/naf-

guide.pdf. The appellant’s undisputed conduct—hiring employees based on

applicants’ paper résumés without posting announcements through USA Staffing,

the agency’s authorized web-based hiring system, HR-2 (testimony of the

appellant)—violated this provision. 4 Further, as her own correspondence shows,

the appellant was aware of her obligation to follow the NAF Personnel Guide at

the time of her misconduct. IAF, Tab 12 at 50-51.

¶10 Culpable negligence in the performance of official duties is a failure to

exercise the degree of care required under the particular circumstances, which a

person of ordinary prudence in the same situation and with equal experience

would not omit. Velez v. Department of Homeland Security, 101 M.S.P.R. 650,

¶ 11 (2006), aff’d, 219 F. App’x 990 (Fed. Cir. 2007). Accordingly, in addition

to the appellant’s violation of the USA Staffing Guide as found by the

administrative judge, the appellant’s failure to follow the NAF Personnel Guide

despite her knowledge of her duty to do so, her responsibility, as NAF HRO, to

ensure her office’s programs adhered to policy, and her years of experience,

supports the administrative judge’s finding that the agency proved the negligent

performance of duties charge. See id., ¶¶ 11-24 (finding that an appellant’s

4

Though he disputed that the appellant’s conduct was negligent, as noted by the

administrative judge, the appellant’s representative essentially conceded the factual

accuracy of the depiction of the appellant’s conduct in the negligent performance of

duties charge at the hearing. ID at 7; HR-2 (the appellant’s representative’s closing

argument).

7

violation of an agency’s policy of which he was aware constituted negligent

performance of duties).

The charges provided the appellant with sufficiently specific notice of the reasons

for her removal.

¶11 The appellant argues that, because the charges omitted details such as the

dates of her misconduct and names of the individuals she improperly hired, the

proposal notice did not provide her with a meaningful opportunity to reply in

violation of her due process rights and constituted harmful error. 5 PFR File,

Tab 1 at 10-11. Due process in removal proceedings requires notice of the

charges, an explanation of the agency’s evidence, and an opportunity to respond.

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). Under

5 U.S.C. § 7513(b), an employee against whom an adverse action is proposed is

entitled to be informed of the specific reasons for the agency’s proposed act ion.

Ragolia v. U.S. Postal Service, 52 M.S.P.R. 295, 301, aff’d, 983 F.2d 1086 (Fed.

Cir. 1992) (Table). Section 7513(b) requires that the information provided by the

agency be sufficiently specific to permit the employee to properly respond to the

agency’s charge. Id. The Board has held that the notice requirement is satisfied

when the proposal and any attachments to it, taken together, provide the employee

with specific notice of the charges so that she can make an informed and

meaningful reply. Alvarado v. Department of the Air Force, 97 M.S.P.R. 389,

¶ 15 (2004).

¶12 Reversal of an action for harmful error is warranted when a procedural

error, whether regulatory or statutory, likely had a harmful effect upon the

outcome of the case before the agency. Stephen v. Department of the Air Force,

47 M.S.P.R. 672, 681 (1991). Harmful error cannot be presumed; the Board will

5

The appellant also alleges that the lack of specificity in the negligent performance of

duties charge violated agency policies and procedures, PFR File, Tab 1 at 17 -18, but

does not identify what these policies and procedures were. Thus, we have no basis to

consider this claim further.

8

reverse an action for harmful error only when the record shows that the

procedural error was likely to have caused the agency to reach a conclusion

different from the one it would have reached in the absence or cure of the error.

Id. at 681, 685.

¶13 The administrative judge addressed the appellant’s due process and harmful

error arguments with respect to the negligent performance of duties charge,

correctly finding them unsupported because the appellant was notified of the

employees she improperly hired in the evidence file provided with the proposal

notice, and her replies to the proposal notice indicated that she understood and

addressed the charge. 6 ID at 17-19; see Alvarado, 97 M.S.P.R. 389, ¶ 15. The

appellant provides no basis to disturb these findings.

¶14 The appellant’s claim that the lack of candor charge lacked sufficient

specificity, which the administrative judge did not address, is also unsupported.

The lack of candor charge notified the appellant of the approximate date of her

statement, “in or around” September 2020, the name of her supervisor to whom

she made the statement, a description of the statement that lacked candor, that

AFSVC gave her permission to accept paper résumés and to make direct hires,

and an explanation as to why that statement lacked candor, because the appellant

never actually received such permission. IAF, Tab 5 at 109. The proposal notice

was also accompanied by a statement from the appellant’s supervisor further

describing the appellant’s statement and its context, as well as other evidence

supporting the charge, including statements from AFSVC representatives stating

that the claimed permission would not have been given. Id. at 127-30, 213-14,

233.

6

Though the administrative judge purported to only address the appellan t’s due process

argument, he analyzed the appellant’s claim that the negligent performance of duties

charge lacked sufficient specificity as alleged violations of both the appellant’s due

process rights and 5 U.S.C. § 7513(b). ID at 17-19; see Loudermill, 470 U.S. at 546;

Ragolia, 52 M.S.P.R. at 301.

9

¶15 Finally, the appellant’s written reply—in which she explained that the

inaccuracies in her statement that formed the basis of the charge were not due to

her lack of candor, but to her mishearing an AFSVC representative’s statement

about paper résumés during the USA Staffing training because of noise in the

room, or her misunderstanding of the difference between résumés and

applications caused by her lack of training, id. at 102—evidenced that she

understood the charge. Thus, the appellant fails to demonstrate how the lack of

candor charge violated her due process rights or 5 U.S.C. § 7513(b). See

Alvarado, 97 M.S.P.R. 389, ¶¶ 8-15 (finding that under either the requirements of

minimum due process or 5 U.S.C. § 7513(b), an appellant received sufficient

notice in a careless workmanship charge which referred to discrepancies listed in

attached documentation, and attached to the notice was a chart listing his

discrepancies, which the appellant understood as evidenced by his reply). Even if

either of the charges lacked the specificity required by 5 U.S.C. § 7513(b), there

is no indication in the record that the appellant would have responded to the

charges differently or that the deciding official would have reached a different

result had either charge been set forth with more specificity. Accordingly, no

harmful error resulted.

The deciding official’s consideration of ex parte communications did not violate

the appellant’s due process rights or constitute harmful error.

¶16 The appellant also contends that the deciding official’s consideration of ex

parte communications about her proposed removal violated her due process rights

and constituted harmful error. 7 PFR File, Tab 1 at 9-10, 16. Because the

administrative judge did not address these arguments, we do so here.

7

The appellant’s contention that the deciding official was “biased” appears merely to

rephrase her argument that his consideration of ex parte communications violated her

due process rights. IAF, Tab 11 at 7; PFR File, Tab 1 at 10.

10

¶17 The record indicates that the deciding official engaged in ex parte

communications with several installation employees, including the appellant’s

supervisor and other members of the civilian personnel office, regarding the

appellant’s proposed removal prior to issuing his decision notice. IAF, Tab 18

at 9-15, 23-31, 92-96, HR-1 (testimony of the appellant’s supervisor and of the

deciding official), HR-2 (testimony of the proposing official). He stated that

some of these conversations were prompted by his need for clarification on hiring

procedures and the proposal “package.” IAF, Tab 18 at 13, 21, 94, HR-1

(testimony of the deciding official). He also stated that, prompted by the

appellant’s claim in her reply that her Schedule A letter put the agency on notice

that she was disabled and in need of a reasonable accommodation, he spoke with

an HR official who informed him that the appellant had not requested a

reasonable accommodation, that a request for a reasonable accommodation

needed to be supported by medical documentation, and that the appellant’s

Schedule A letter, which stated the nature of her disability but did not provide

further detail, was insufficient to support a request for a reasonable

accommodation. IAF, Tab 5 at 99, 103, Tab 18 at 75, 77-81, HR-1 (testimony of

the deciding official). Lastly, the appellant’s supervisor asked the deciding

official between the issuance of the proposal notice and the deciding official’s

decision for permission to speak to AFSVC about issues resulting from the

appellant’s misconduct and to fund assistance of the NAF HR office. 8 IAF,

Tab 18 at 234, HR-1 (testimony of the appellant’s supervisor), HR-2 (testimony

of the proposing official).

¶18 Pursuant to the decisions of the U.S. Court of Appeals for the Federal

Circuit (Federal Circuit) in Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80

8

The deciding official also spoke to his supervisor about the appellant’s proposed

removal and related matters prior to the issuance of his decision notice, but it is unclear

what information, if any, he received during those conversations. IAF, Tab 18 at 23 -31.

11

(Fed. Cir. 2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d

1368, 1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due

process rights when he relies upon new and material ex parte informat ion as a

basis for his decisions on the merits of a proposed charge or penalty. In Stone,

the Federal Circuit identified three factors to be used to determine if ex parte

information is new and material: (1) whether the ex parte information introduced

cumulative, as opposed to new, information; (2) whether the employee knew of

the information and had an opportunity to respond; and (3) whether the

communication was of the type likely to result in undue pressure on the deciding

official to rule in a particular manner. 179 F.3d at 1377. The ultimate inquiry in

determining whether a due process violation occurred is whether the ex parte

communication is so substantial and so likely to cause prejudice that no employee

can fairly be required to be subjected to a deprivation of pr operty under such

circumstances. Id. The agency does not dispute that the appellant was not

notified of the information the deciding official obtained during his ex parte

communications, and thus only the first and third Stone factors are at issue. IAF,

Tab 18 at 14; see PFR File, Tab 3 at 7-8.

¶19 Ward, Stone, and their progeny recognize that not all ex parte

communications rise to the level of due process violations. Thus, a deciding

official does not violate an employee’s right to due process when he considers

issues raised by an employee in her response to the proposed adverse action and

then rejects those arguments in reaching a decision. Grimes v. Department of

Justice, 122 M.S.P.R. 36, ¶ 13 (2014). Further, a deciding official does not

violate an employee’s due process rights by initiating an ex parte communication

that only confirms or clarifies information already contained in the record. Blank

v. Department of the Army, 247 F.3d 1225, 1229 (Fed. Cir. 2001). In Blank, the

Federal Circuit found that a deciding official’s investigatory interviews to

determine whether there were inconsistencies in the agency’s case and to

ascertain the veracity of an appellant’s affirmative defenses only confirmed and

12

clarified information already in the record without introducing new and material

information, and therefore did not violate the appellant’s due process rights. Id.

at 1227, 1229-30.

¶20 In Mathis v. Department of State, 122 M.S.P.R. 507, ¶¶ 6-16 (2015), we

considered whether a deciding official’s ex parte communications regarding

assertions an appellant made in reply to a proposed removal for unacceptable

performance introduced new, as opposed to cumulative, information. In her reply

to her proposed removal, the appellant in Mathis attributed her low production

rate to computer outages and work on complex cases, and alleged that the agency

ignored her requests for a reasonable accommodation. Id., ¶ 3. The deciding

official investigated these alleged mitigating circumstances by ema iling an HR

representative, who responded that the agency made allowances for significant

computer outages, that complex cases were part of the normal work of the

appellant’s position, and that the appellant never sent any information to the

agency’s reasonable accommodation division despite being informed of the

reasonable accommodation process. Id., ¶ 4. We found that the deciding

official’s consideration of this information did not introduce new information

because the HR representative’s response merely clarified or confirmed whether

the allegations raised in the appellant’s reply were supported by the facts , and

was consistent with information already in the record . Id., ¶ 12.

¶21 Here, the deciding official’s ex parte communications did not introduce new

information for the reasons we described in Mathis. The communications in

which the deciding official obtained clarification of hiring procedures and

information in the proposal package are firmly under the ambit of investigatory

communications that do no more than confirm or clarify the record , and

consistent with Blank and Mathis, did not violate the appellant’s due process

rights. See Blank, 247 F.3d at 1229-30; Mathis, 122 M.S.P.R. 507, ¶ 12. Indeed,

descriptions of proper hiring practices were already contained in the record the

agency relied on to take its action and which was provided to the appellant. IAF,

13

Tab 5 at 115, 127-130, 213, 233. As in Mathis, the deciding official’s ex parte

communications regarding the absence of a request for, or documentation to

support, a reasonable accommodation from the appellant merely clarified or

confirmed whether the disability discrimination allegation raised in the

appellant’s reply was supported by facts. Further, the content of these

communications comported with the absence of any actual reasonable

accommodation request or supporting medical documentation in the record. IAF,

Tab 18 at 74-75, 83, HR-1 (testimony of the appellant’s supervisor and of the

deciding official). There is also no indication in the record that the deciding

official received any new information from the appellant’s supervisor during her

requests for permission to speak to AFSVC or to fund assistance for the NAF HR

office. Accordingly, the deciding official’s ex parte communications did not

introduce new information under the first Stone factor.

¶22 Regarding the third Stone factor, we follow our holding in Mathis, in which

the information contained in the ex parte communications was of the same

character as the information at issue here, and was found to be not of the type

likely to result in undue pressure upon the deciding official to rule in a particul ar

manner. 122 M.S.P.R. 507, ¶ 15. This case is dissimilar from instances in which,

for example, deciding officials placed decisive weight on new information

obtained in ex parte communications or considered aggravating factors which

were not contained within the agencies’ proposal notices without giving the

appellants an opportunity to respond. See, e.g., Young v. Department of Housing

and Urban Development, 706 F.3d 1372, 1377 (Fed. Cir. 2013) (finding that ex

parte communications constituting a “huge” departure from the record contained

more than confirming and clarifying information, and were new and material

because they played a significant and overwhelming role in the removal

decision); Solis v. Department of Justice, 117 M.S.P.R. 458, ¶¶ 9-10 (2012) (ex

parte information consisted of deciding official’s consideration of appellant being

Giglio-impaired).

14

¶23 Thus, weighing all of the Stone factors, we find that the information

contained in the ex parte communications was not “so substantial and so likely to

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

deprivation of property under such circumstances,” Stone, 179 F.3d at 1377, and

conclude that the deciding official’s consideration of ex parte communications

did not violate the appellant’s due process rights. We also find that, to the extent

that the deciding official’s ex parte communications may have constituted

procedural error, 9 there is no indication in the record that any such error was

harmful in that it was likely to have caused the agency to reach a conclusion

different from the one it would have reached absent the error . See Tom v.

Department of the Interior, 97 M.S.P.R. 395, ¶ 43 (2004).

The appellant’s claim that she was not adequately trained in violation of the merit

system principle in 5 U.S.C. § 2301(b)(7) does not warrant relief.

¶24 Finally, the appellant contends that deficiencies in the AFSVC in-person

USA Staffing training and USA Staffing Guide and her unheeded requests for

training to her supervisors affected her ability to perform her duties. PFR File,

Tab 1 at 7-8, 12-14. Although the administrative judge appropriately credited the

testimony of other witnesses who refuted the appellant’s arguments that the USA

Staffing training or guide were inadequate, ID at 12 n.6 (citing HR -1 (testimony

of the AFSVC representative and of the Goodfellow NAF HRO)), the appellant

raises these issues on review to argue for the first time that the agency violated

the merit system principle in 5 U.S.C. § 2301 (b)(7), which states “[e]mployees

should be provided effective education and training in cases in which such

education and training would result in better organizational and individual

performance.” PFR File, Tab 1 at 12-13. Because she fails to show that this new

9

Though the appellant alleges that the deciding official’s consideration of ex parte

communications violated the agency’s policies and procedures, PFR File, Tab 1

at 17-18, she fails to identify what these policies and procedures were. Thus, we need

not consider this claim further.

15

argument is based on new and material evidence not previously available despite

her due diligence, we need not consider it. Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 6 (2016).

¶25 However, even if we were to consider the argument, it would fail on the

merits because the Board has long held that the merit systems principles set forth

in 5 U.S.C. § 2301 are not self-executing and that, absent evidence that an agency

violated a law, rule, or regulation implementing the merit system principle, i.e.,

committed a prohibited personnel practice, an alleged violation thereof does not

give rise to an affirmative defense to an adverse action. LeBlanc v. Department

of Transportation, 60 M.S.P.R. 405, 417 (1994), aff’d, 53 F.3d 346 (Fed. Cir.

1995) (Table). Because the appellant has not identified a law, rule, or regulation

implementing section 2301(b)(7) that the agency violated, let alone alleged that

the agency committed a prohibited personnel practice, her allegation that the

agency violated section 2301(b)(7) fails. 10

10

Aside from the appellant’s claim under section 2301(b)(7), her argument that she was

inadequately trained by the agency is contradicted by the weight of the evidence. We

agree with the administrative judge’s refutation of this argument , and also note that the

record shows that after the USA Staffing training, the appellant was allowed to release

job vacancies on USA Staffing only after AFSVC confirmed her ability to input

vacancies into the platform. Tab 12 at 39-40, HR-1 (testimony of the AFSVC

representative). Further, the Goodfellow Air Force Base NAF HRO stated that in

August 2020, prior to the appellant’s misconduct, she provided the appellant with a user

guide with step-by-step instructions for each section of USA Staffing she created and

kept up-to-date. IAF, Tab 18 at 128-29. The appellant’s supervisor stated that she

never learned, from the appellant or elsewhere, that the USA Staffing training was

poorly conducted, that the USA Staffing Guide had any gaps, or that the appellant had

any difficulty understanding how to use USA Staffing. HR -1 (testimony of the

appellant’s supervisor). Contrary to the appellant’s asserti ons, the proposing official

stated that she did not recall the appellant ever raising concerns with her about training.

HR-2 (testimony of the proposing official). Finally, even if the agency’s USA Staffing

training or USA Staffing Guide was deficient in any respect, the appellant could have

chosen to avail herself of assistance from AFSVC—which’s purpose was to assist

installations and with which she was in regular contact—or others in the agency to

operate USA Staffing rather than resort to misconduct. IAF, Tab 12 at 31, 35-37,

50-51, 53-54, 62-63, 92, Tab 15 at 205, 234-37, 241, 257-58, Tab 18 at 128-29, Tab 27

16

The penalty of removal is within the tolerable limits of reasonableness.

¶26 In assessing the agency's penalty determination, the administrative judge

found that the deciding official had considered the relevant Douglas factors and

that the penalty of removal was within the tolerable limits of reasonableness. ID

at 19-21. The administrative judge noted that the deciding official had considered

the appellant’s 11 years of service, clean disciplinary record, and positive

performance ratings as mitigating factors. ID at 20. Although we agree with the

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

tolerable limits of reasonableness, we supplement his penalty analysis to consider

an additional potential mitigating factor.

¶27 Although the appellant had notice of the proper hiring procedures, her

office was understaffed and the staff members who were in place did not have

adequate training on hiring procedures. IAF, Tab 18 at 171 -77. The appellant

raised concerns with her supervisor but indicated that she was not getting much

help. Id. 177-78. After the appellant’s removal, the agency brought in a HRO

from another facility to assist with various human resources matters; she reported

to management that “after being present in the NAF HRO i t was clear the current

personnel on staff needed a foundational training on all things NAF HRO,”

including USA Staffing and the recruitment process. IAF, Tab 14 at 80. These

staffing and training issues may have contributed to the work environment in

which the appellant filled positions without following the required procedures. If

the agency had only charged the appellant with negligent performance of her

duties, there might have been grounds for mitigation. However, in light of the

appellant’s lack of candor and her failure to fully accept responsibility for her

actions, we find that the appellant’s supervisors reasonably lost trust and

at 47, HR-1 (testimony of the ASFVC representative), HR-2 (testimony of the

appellant).

17

confidence in her ability to carry out the duties of her position. We therefore find

that the penalty of removal was within the tolerable limits of reasonableness.

NOTICE OF APPEAL RIGHTS 11

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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

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

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

11

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.

18

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

§ 7703(b)(1)(A).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

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

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

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

for Merit Systems Protection Board appellants before the Federal Circuit.

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

that any attorney will accept representation in a given case.

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

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

were affected by an action that is appealable to the Board and that 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. 420 (2017). If you have a representative in this case,

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

19

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

20

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in section

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

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

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

competent jurisdiction. 12 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 Fede ral

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.

12

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.

21

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.