Opinion

Jose Rosario-Fabregas v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jun 15, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSE E. ROSARIO-FABREGAS, DOCKET NUMBER

Appellant, NY-0752-18-0221-I-1

DEPARTMENT OF THE ARMY, DATE: June 15, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jose E. Rosario-Fabregas, San Juan, Puerto Rico, pro se.

Elizabeth Moseley, Jacksonville, Florida, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

petition for review of the initial decision, which sustained the appellant’s

removal. For the reasons discussed below, we DENY the appellant’s petition for

review and the agency’s cross petition for review. We AFFIRM the initial

decision, AS MODIFIED to find that the agency proved its insubordination

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

charge and that the insubordination charge supports the appellant’s removal, and

to expand upon the administrative judge’s determination that the appellant failed

to prove any of his affirmative defenses.

BACKGROUND

¶2 The appellant most recently held a GS-12 Biologist position in the agency’s

U.S. Army Corp of Engineers, stationed in San Juan, Puerto Rico. Initial Appeal

File (IAF), Tab 1 at 1, Tab 5 at 6. In February 2010, the agency removed him for

misconduct, but the Board reversed on due process grounds in November 2011.

Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶ 2 (2015),

aff’d, 833 F.3d 1342 (Fed. Cir. 2016). The agency cancelled the appellant’s

removal and restored him to the employment rolls. Id.; Rosario-Fabregas v.

Department of the Army, MSPB Docket No. NY-0752-10-0127-C-1, Compliance

File, Tab 6 at 7, 15.

¶3 Less than a month after the Board issued its decision reversing the

appellant’s removal, he submitted a letter to the agency from his treating

psychiatrist, asking that the agency excuse him from work un til January 2012.

Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 3; Rosario-Fabregas v. Department of the

Army, MSPB Docket No. NY-0752-13-0167-I-1, Initial Appeal File (0167 IAF),

Tab 11, Part 1 at 17 of 58. This return-to-work date was continually extended,

first at the appellant’s behest, and then based on the agency’s demands for a

medical release. Rosario-Fabregas, 122 M.S.P.R. 468, ¶¶ 3-5. In

November 2012, the appellant provided a more detailed medical assessment . Id.,

¶ 5. The following day, however, the agency proposed the appellant’s removal

based on the same charges underlying the first removal action, and it placed him

on paid administrative leave. 2 Id., ¶ 5. The agency effectuated his removal in

February 2013. Id.

The appellant filed an appeal with the Board alleging that his absence between

December 2011 and November 2012 was a constructive suspension. Rosario-Fabregas,

¶4 On appeal of his second removal action, the administrative judge sustained

the agency’s conduct unbecoming, inappropriate use of official time, and

inappropriate use of Government property charges, but not its insubordination

charge. Rosario-Fabregas v. Department of the Army, MSPB Docket No. NY-

0752-13-0142-I-2, Final Order, ¶¶ 2-3 (July 1, 2016). The administrative judge

mitigated the second removal action to a 30-day suspension, and the Board

affirmed in July 2016. Id., ¶¶ 1, 48. Notably, the Board stated that mitigation of

the penalty was warranted because, inter alia, the appellant had no prior discipline

and the agency’s most serious charge—insubordination—was not sustained. Id.,

¶¶ 44, 48.

¶5 Although the administrative judge had ordered interim relief from the

second removal action, the agency placed the appellant on paid administrative

leave instead of returning him to the workplace pursuant to 5 U.S.C.

§ 7701(b)(2)(A)(ii)(II). Rosario-Fabregas, MSPB Docket No. NY-0752-13-

0142-I-2, Petition for Review File, Tab 4 at 27-28. But after receiving the

Board’s final decision, the agency notified the appellant that his administrative

leave would end, and he would be returned to duty. IAF, Tab 9 at 74 -75. The

events that followed culminated with the agency’s third attempted removal of the

appellant, which is the matter before us in the instant appeal.

¶6 The agency ordered the appellant to provide a medical release prior to his

return-to-work date. Id. at 74. The parties subsequently agreed that the appellant

would first serve his 30-day suspension and his return-to-work date would be

September 6, 2016. Id. at 51, 69. A week before that scheduled return, the

agency reminded the appellant that he needed to provide a medical release before

returning to duty. Id. at 55. When his scheduled return-to-duty date arrived, the

appellant began requesting sick and annual leave, which the agency granted

throughout the month of September. Id. at 29-30, 33, 37.

122 M.S.P.R. 468, ¶¶ 9-19. The Board dismissed that appeal for lack of jurisdiction.

Id., ¶¶ 1, 19.

¶7 On September 27, 2016, the appellant provided the agency a note from his

treating psychiatrist. However, instead of releasing the appellant to return to

duty, the psychiatrist stated that the appellant should not return to work until

December 1, 2016. Id. at 40. Over the next several months, the psychiatrist

continually pushed the appellant’s return-to-duty date back, ultimately to June 1,

2017. Id. at 42, 44, 46. During this period, the agency approved the appellant’s

requests for leave to cover this lengthy absence. Id. at 38, 41, 43, 45, 48.

¶8 On May 4, 2017, the appellant’s supervisor notified him that he was

“expected to report to work” on June 1, 2017. IAF, Tab 7 at 129. She warned

him that his absence from duty could not continue indefinitely and that he wo uld

face removal if he did not become available for duty on a regular basis. Id.

at 129-30. In anticipation of the approaching June 1, 2017 return -to-duty date,

she directed the appellant to provide a medical release no later than May 25,

2017. Id. at 129. However, the appellant was having difficulty scheduling an

evaluation, so his supervisor extended the release deadline to June 21, 2017, with

a July 5, 2017 return-to-work date. Id. at 70-71.

¶9 The June 21, 2017 deadline passed without the appellant submitting a

medical release, and around the same time, the appellant exhausted his accrued

leave. Id. at 136-37. On June 22, 2017, the appellant requested advance sick or

annual leave to cover his continued absence, but his supervisor denied the re quest

because she had no reasonable assurance that the appellant would return to duty.

Id. at 136, 138-40. Nevertheless, she approved the appellant’s continued absence

in a leave without pay (LWOP) status, while warning that if he did not report for

duty on July 5, 2017, with a medical release, he would be considered absent

without leave (AWOL). Id. at 136-37. The appellant did not submit a release or

report for duty by July 5, 2017, and the agency began carrying him in AWOL

status. Id. at 136, 188.

¶10 On July 21, 2017, the appellant notified the agency that he had a July 31,

2017 appointment with another psychiatrist. Id. at 226-27. The appellant’s

supervisor granted him approved LWOP pending the results of the July 31, 2017

evaluation, but she warned him that he must submit the psychiatrist’s opinion on

his ability to work no later than August 1, 2017. Id. at 225. On July 27, 2017,

this psychiatrist notified the appellant that he would not be handling his case. Id.

at 230. The appellant did not submit the required documentation, and he was

again placed in an AWOL status. IAF, Tab 8 at 8, 102, 105.

¶11 On August 22, 2017, the appellant’s supervisor proposed his removal based

on charges of AWOL and excessive absence. IAF, Tab 6 at 250 -58. In the

meantime, on June 15 and August 24, 2017, the appellant’s supervisor issued him

instructions in response to what the agency perceived were harassing emails.

IAF, Tab 5 at 103, Tab 6 at 8-9. Specifically, she instructed him not to

communicate directly with his prior supervisor and not to send “email blasts.”

IAF, Tab 6 at 8-9. During the period for responding to his proposed removal, the

appellant sent multiple emails that his supervisor considered to be in violation of

these instructions. IAF, Tab 5 at 103-04, 120-39, Tab 6 at 9. As a result, his

supervisor rescinded the pending proposal and issued a new one, dated

October 11, 2017, which included an additional charge of insubordination. IAF,

Tab 5 at 69-86. The proposal stated that any one of the charges would warrant

the appellant’s removal. Id. at 75-84. After the appellant responded, the deciding

official upheld all the charges and removed the appellant effective August 24,

2018. Id. at 6-13.

¶12 The appellant filed a Board appeal, contesting the merits of this third

removal action and raising affirmative defenses of whistleblower retaliation and

discrimination based on disability and national origin. IAF, Tab 1 at 3 -5, Tab 10,

Tab 15 at 2. He waived his right to a hearing. IAF, Tab 1 at 2. The

administrative judge developed the record and issued an initial decision affirming

the appellant’s removal. IAF, Tab 37, Initial Decision (ID). She sustained the

AWOL and excessive absences charges, but she did not sustain the

insubordination charge. ID at 14-16. She also concluded that the appellant failed

to prove his affirmative defenses. ID at 17-19. Finally, she found that the

removal penalty was reasonable for the sustained charges. ID at 19.

¶13 The appellant has filed a petition for review, challenging numerous aspects

of the initial decision. Petition for Review (PFR) File, Tab 1. The agency has

filed a response and cross petition for review, challenging the administrative

judge’s findings about its insubordination charge. PFR File, Tab 3. The

appellant has responded to the agency’s cross petition for review. PFR File,

Tab 5.

ANALYSIS

The administrative judge erred by not sustaining the charge of insubordination.

¶14 Again, the agency has challenged the administrative judge’s conclusion that

its insubordination charge could not be sustained. PFR File, Tab 3 at 5, 11 -16.

For the reasons that follow, we sustain the charge and modify the initial decision

accordingly.

¶15 Insubordination is the willful and intentional refusal to obey an authorized

order of a superior officer, which the officer is entitled to have obeyed. Walker v.

Department of the Army, 102 M.S.P.R. 474, ¶ 8 (2006). Here, the agency’s

insubordination charge consisted of two specifications. IAF, Tab 5 at 8, 81 -84.

The first stemmed from an instruction that the appellant cease all communication

with his former supervisor at work. According to the agency, the appellant was

insubordinate when he subsequently sent mass emails that included his former

supervisor as a recipient on August 24 and September 1, 2017, and by sending a

more individualized email to his former supervisor on September 1, 2017. Id.

at 83. The second specification stemmed from an instruction that the appellant

cease sending mass emails without prior approval. Id. at 83-84. According to the

agency, the appellant was insubordinate because he sent the September 1, 2017

mass email to thousands of employees. Id.

¶16 The appellant’s response to the proposed removal did not substantively

address his supervisor’s orders or his alleged insubordination regarding the same.

Id. at 57-68. Then, during adjudication of this appeal, the appellant disputed the

charge without providing any substantive explanation, except to claim that he was

exercising his right to free speech or engaging in protected whistleblowing. 3 E.g.,

IAF, Tab 1 at 5, Tab 11 at 16-17, Tab 36 at 10-11; PFR File, Tab 5 at 19-21. As

such, it seems that the following facts, which are supported by the agency’s

documentary submissions, are not materially disputed.

¶17 On June 15, 2017, a former supervisor of the appellant’s contacted the

appellant’s current supervisor and an agency attorney, complaining that the

appellant had been harassing him via email. IAF, Tab 5 at 147. This former

supervisor asked for a plan of action to cease the harassment. Id. He also

included the appellant’s most recent, rambling message. Id. Among other things,

this message from the appellant to his former supervisor refer red to matters from

many years earlier; described his former supervisor as not “us[ing] [his] brain”;

claimed that the former supervisor had harassed the appellant all those years ago;

and denied having harassed his former supervisor. Id. Later that day, the

appellant’s current supervisor instructed the appellant to cease all contact with his

former supervisor at work. IAF, Tab 6 at 8. His current supervisor further

indicated that the appellant should send communications to her, as an

intermediary, if he ever had an official need to communicate with his former

supervisor in the future. Id. In a response also dated the same date, the appellant

acknowledged the instruction, indicating that he would comply. Id. at 15.

Although the appellant generally referred to his emails as protected whistleblowing,

he has not provided much of an explanation. He implicates only the first of his mass

emails—the one that led to an order that he not send out any more mass emails without

permission—in making this claim. PFR File, Tab 5 at 19 (referencing IAF, Tab 6 at 9).

To the extent that the appellant is presenting a whistleblower reprisal claim, we address

it below in our discussion of the appellant’s whistleblower reprisal affirmative defense.

¶18 On August 24, 2017, just days after his proposed removal for AWOL and

excessive absences that would eventually be replaced with one that added an

insubordination charge, the appellant sent an email from a personal account to a

couple of agency distribution lists, which included his former supervisor and

thousands of other employees. 4 IAF, Tab 5 at 103, Tab 6 at 9. This email is

rambling and difficult to understand but asserts various improprieties on the part

of the agency, at least some of which were related to his proposed removal. IAF,

Tab 6 at 9. For example, the email describes unnamed officials responsible for

his removal as a “clan of racists,” while summarily stating that the agency

“discriminates against Hispanics” and had “hid[den] felonies.” Id. The

appellant’s current supervisor immediately responded to the appellant, directing

him to not send “district wide, regulatory wide, or any other email blasts to

[agency] employees without [her] approval.” Id. The appellant replied with

another rambling email in which he claimed that his supervisor could not force

him to keep silent, but she could facilitate a large financial lump sum settl ement,

equivalent to 6 years of “[f]ront pay,” so that he could retire with 35 years of pay

or service. Id. at 244-45.

¶19 On September 1, 2017, the appellant once again sent an email to agency

distribution lists, which included his former supervisor and thou sands of other

employees. IAF, Tab 5 at 120, Tab 6 at 11-12. This email was similarly

rambling and indicated that the email included an attachment related to one of his

prior appeals, for the purpose of showing how prior charges against him had been

The record includes another email from the appellant, on the same date, addressed to

about a dozen individuals, including the appellant’s former supervisor. IAF, Tab 5

at 146. The email contains an attachment but no body text. Id. This appears to be

another instance of the appellant defying the order to cease communicating with his

former supervisor. However, while the email is referenced in the general background

portion of the proposal to remove the appellant, id. at 73, and the background portion

specific to the insubordination charge, id. at 82, it is not specifically referenced within

the accompanying specifications, id. at 83-84. Under the circumstances, we will not

consider this additional email from the appellant to his former supervisor.

“annihilate[ed].” 5 Id. That same day, the appellant also sent a separate email to

his former supervisor and just one other employee, with the subject line

indicating that he was attaching records, and body text that merely stated,

“gREETINGS.” 6 IAF, Tab 5 at 117.

¶20 The administrative judge found that the insubordination charge failed

because the agency’s orders to the appellant were improper. ID at 16. She

reasoned, citing Smith v. General Services Administration, 930 F.3d 1359 (Fed.

Cir. 2019), that the orders were overly broad because they did not merely direct

the appellant to refrain from making false or offensive statements. ID at 16. We

disagree.

¶21 An agency charging an employee with failure to follow instructions or

insubordination generally must show that the instructions were “proper.”

Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 555-56 (1996). The court in

Smith suggested that an agency’s instruction that an appellant not communicate

with agency officials absent prior supervisory approval “may independently

violate the Whistleblower Protection Act.” 930 F.3d at 1362-63, 1366 n.2. It

reasoned that such an instruction was a personnel action under 5 U.S.C.

§ 2302(a)(2)(A)(xi). Smith, 930 F.3d at 1366 n.2. Under

section 2302(a)(2)(A)(xi), the definition of “personnel action” includes “t he

implementation or enforcement of any nondisclosure policy, form, or agreement .”

It is not apparent whether the attachment—which the text of the email specifically

referenced—was included in the record or even available to all recipients of the

appellant’s email message, which he sent from a personal email account, given the

agency’s systems for protecting against potentially harmful files. IAF, Tab 6 at 11 -12.

But the surrounding circumstances do suggest that the appellant included an attachment

in this email message. Id.

Again, it is not apparent whether the attachment was inclu ded in the record or even

available to the recipients of the appellant’s email message, which he sent from a

personal email account. IAF, Tab 5 at 117. But again, the surrounding circumstances

do suggest that the appellant included an attachment in this email message. Id.

¶22 This case is distinguishable from Smith because the instruction at issue in

Smith was motivated by the employee’s prior protected disclosures. 930 F.3d

at 1361-63, 1366 n.2. In other words, the instruction at issue was a nondisclosure

instruction. Unlike the employee in Smith, the appellant did not prove that he

made a protected disclosure in connection with any of the emails that prompted,

or followed, his supervisor’s June 15 and August 24, 2017 instructions regarding

his communications. 7 Therefore, he has not established he is entitled to

corrective action in connection with these instructions. See Alarid v. Department

of the Army, 122 M.S.P.R. 600, ¶¶ 12-13 (2015).

¶23 However, it is also a prohibited personnel practice to implement or enforce

“any nondisclosure policy, form, or agreement” unless it contains specific

language regarding, among other matters, an employee’s continued right to make

protected disclosures and engage in protected activities, and does not prohibit

disclosures made to certain entities. 5 U.S.C. § 2302(b)(13). Therefore, we have

considered whether the communication restrictions were improper because they

constituted such a prohibited personnel practice. 8 We answer this question in the

negative.

¶24 Unlike the circumstances in Smith, there is little reason to question the

motivations for the instructions at issue, and the agency did not seek to prevent

disclosures. Further, the instructions were not overly broad. In Smith, an agency

instructed the employee not to have any communications with upper level

managers without the approval of his first-level supervisor. Smith, 930 F.3d

at 1362. The instructions at issue here did not curtail the appellant’s ability to

contact individuals within or outside his chain of command. Further, the

instructions were narrowly tailored to concerns raised by his prior emails.

The content of these emails are further analyzed below in connection with the

appellant’s whistleblower reprisal affirmative defense.

We do not decide here whether an instruction is a policy, form, or agreement within

the meaning of 5 U.S.C. § 2302(b)(13).

¶25 To recall, the appellant was an employee of the agency, but he had not been

in a duty status, performing work, for years. Yet the appellant was sending

accusatory messages to his former supervisor, which the former supervisor

understandably found unwelcome. The appellant was also sending mass email

messages to thousands of agency employees about his own personal disputes with

the agency. Even if the messages could be read and disposed of in a brief amount

of time, that time must be multiplied by the thousands of recipients to account for

the burden it placed on agency operations. 9 We find the resulting instructions

from the appellant’s current supervisor to cease direct communication with his

former supervisor and cease sending mass emails were appropriate. See Lentine

v. Department of the Treasury, 94 M.S.P.R. 676, ¶¶ 2, 5, 15 (2003) (sustaining a

failure to follow a direct order charge and removal of an employee for emailing

another employee after an explicit order to cease such contact). We disagree with

the administrative judge’s finding to the contrary.

¶26 Having determined the facts surrounding the alleged insubordination and

the propriety of the underlying orders to the appellant, we now turn to the final

element of the agency’s burden—proof of intent. Parbs v. U.S. Postal Service,

107 M.S.P.R. 559, ¶ 13 (2007), aff’d per curiam, 301 F. App’x 923 (Fed. Cir.

2008). Intent is a state of mind that is generally proven by circumstantial

evidence in the context of an insubordination charge. Parbs, 107 M.S.P.R. 559,

¶ 13. In considering whether the agency has proven intent, the Board must

examine the totality of the circumstances. Id.

In response to emails the appellant sent on August 24 and September 1, 2017, an

employee wrote to the appellant’s supervisor that they were “upsetting and offensive for

[him],” because it alleged that the employee and his sister had been hired and promoted

illegally, and accused coworkers and supervisors of “unethical behavior” and “wrongful

acts against [the appellant].” IAF, Tab 5 at 106. A note from a different agency

official contained in the record reflects that “several employees expressed concern

regarding” emails he sent on August 24 and September 1, 2017, and that the official

responded by sending an email message reminding employees “of the measures they can

take to assist with security and safety in the workplace.” IAF, Tab 6 at 249.

¶27 Here, we find that the record supports a finding of intent for the agency’s

first specification and its allegation about the September 1, 2017 email that the

appellant sent to his former supervisor and one other agency official. IAF, Tab 5

at 117. The agency’s order was clear, and the appellant acknowledged receipt of

that order, yet he unambiguously defied the order just weeks later. IAF, Tab 5

at 117, Tab 6 at 8, 15. The appellant has not substantively explained his actions

in any way that would negate what appears to be his intentional defiance of the

order to stop contacting his former supervisor. See Parbs, 107 M.S.P.R. 559,

¶ 20 (sustaining an insubordination charge when the appellant did not offer

significant contrary proof to rebut the agency’s circumstantial evidence) ;

Redfearn v. Department of Labor, 58 M.S.P.R. 307, 312-13 (1993) (finding the

intent element proven for an insubordination charge when the agency showed that

an appellant was given instructions she did not follow and the appellant failed to

offer any explanation such as impossibility or lack of knowledge).

¶28 For the other emails referenced in this specification, the August 24 and

September 1, 2017 mass emails, it is plausible that the appellant did not realize

the distribution lists he used included his former supervisor. See IAF, Tab 5

at 103, Tab 6 at 9, 11-12. But that explanation is not one the appellant has

presented. As previously stated, he has offered virtually no defense to the

insubordination charge, except to summarily claim that he was exercising his

right to free speech. 10 Therefore, we also find it more likely true than untrue that

Below, the appellant only briefly alluded to his constitutional right to free speech,

and he only did so in the context of extensive filings that were difficult to understand.

IAF, Tab 11 at 16-17, Tab 36 at 11. Because the administrative judge did not explicitly

address this issue, we will do so now.

To determine whether employee speech is protected by the First Amendment, the Board

must determine: (1) whether the speech addressed a matter of public concern and, if so,

(2) whether the agency’s interest in promoting the efficiency of the service outweighs

the employee’s interest as a citizen. Smith v. Department of Transportation,

106 M.S.P.R. 59, ¶ 46 (2007). To illustrate, the Board has explained that a discussion

regarding racial relations or discrimination is a matter of p ublic concern entitled to the

full protection of the First Amendment but an equal employment opportunity matter that

the appellant intentionally defied the order not to contact his former supervisor

when he sent the mass emails with the former supervisor as one of the recipients.

See Parbs, 107 M.S.P.R. 559, ¶ 20; Redfearn, 58 M.S.P.R. at 312-13.

¶29 Lastly, we find that the record also supports a finding of intent for the

agency’s second specification and its allegation about the mass email sent on

September 1, 2017. The corresponding order from just days before was

unambiguous, the appellant responded by implying that he would not comply, and

then he defied the order. IAF, Tab 6 at 9, 11-12, 244-45. Once more, the

appellant has not substantively explained his actions in any way that would

negate what appears to be his intentional defiance of a valid order to stop sending

mass emails without prior approval. See Parbs, 107 M.S.P.R. 559, ¶ 20;

Redfearn, 58 M.S.P.R. at 312-13.

¶30 In sum, we find that the agency has met its burden and we therefore sustain

the insubordination charge. We reverse the administrative judge’s contrary

conclusion.

We decline to rule on the agency’s AWOL and excessive absences charges.

¶31 The agency’s AWOL charge contained 59 specifications —one for each day

that the appellant was absent without authorization between July 5 and October 6,

2017. IAF, Tab 5 at 75-80. Its excessive absence charge covered all

267 workdays for which the appellant was absent from September 6, 2016,

is personal in nature and limited to the complainant’s own situation is not a matter of

public concern. Id., ¶ 47.

In this case, the emails underlying the appellant’s insubordination charge implicate d his

own personal grievances rather than any matter of public concern. IAF, Tab 5 at 117,

120. For that reason alone, the appellant’s claim fails. But even if his emails could be

construed as touching on a matter of public concern, we would find that the agency’s

interest outweighed the appellant’s. The agency’s interest was to stop the appellant

from contacting his former supervisor, who considered the appellant’s contact s

harassing, and to stop the appellant from interrupting the work of thousands of

employees with mass emails. The agency did not altogether prohibit the appellant from

voicing his interests as an employee or citizen.

through October 6, 2017. Id. at 80. The administrative judge found that the

agency proved both charges. ID at 14-16.

¶32 On review, the appellant asserts that he was entitled to leave under the

Family and Medical Leave Act of 1993 (FMLA) during the periods at issue in the

AWOL and excessive absence charges. PFR File, Tab 1 at 5 -8, 17. The appellant

raised this issue below, but the administrative judge did not address the matter in

her initial decision. IAF, Tab 1 at 5, Tab 13 at 10 -11.

¶33 An agency bears the burden of proving that it complied with the FMLA as

part of its overall burden of proving a leave-based charge. Somuk v. Department

of the Navy, 117 M.S.P.R. 18, ¶ 11 (2011). Like most civil service employees,

the appellant was covered under Title II of the FMLA. IAF, Tab 5 at 6; FMLA,

Pub. L. No. 103-3, § 201(a)(1), 107 Stat. 6, 19 (codified, in pertinent part, at

5 U.S.C. § 6381(1)(A), and incorporating the definitions of an “employee” under

Title II of the FMLA from 5 U.S.C. § 6301(2)); 5 C.F.R. § 630.1201(b)(1)(i)(A);

see generally 5 C.F.R. part 630, subpart L (containing the implementing

regulations of the Office of Personnel Management (OPM)). Under FMLA

Title II, an eligible employee is “entitled to a total of 12 administrative

workweeks of leave during any 12-month period” for, as relevant here, “a serious

health condition that makes the employee unable to perform the functions of the

employee’s position.” 5 U.S.C. § 6382(a)(1)(D); Landahl v. Department of

Commerce, 83 M.S.P.R. 40, ¶ 8 (1999); see 5 C.F.R. §§ 610.102, 630.1202

(defining an administrative workweek for purposes of FMLA, in relevant part, as

an agency-designated period consisting of “7 consecutive 24 hour periods”).

¶34 This case presents an issue regarding whether the agency should have

designated a portion of the appellant’s leave as FMLA-protected even though he

did not invoke FMLA-protected leave. The Board has previously held that, even

if an employee does not specifically mention the FMLA when requesting leave,

the requirement to invoke the FMLA may be satisfied as long as the employee

presents the agency with sufficient evidence to trigger consideration of his

absence under the FMLA. Bowen v. Department of the Navy, 112 M.S.P.R. 607,

¶ 8 (2009), aff’d per curiam, 402 F. App’x 521 (Fed. Cir. 2010). However, this

holding appears to be contrary to OPM’s FMLA regulations. Specifically,

section 630.1203(b) provides that “[a]n employee must invoke his or her

entitlement to FMLA leave” and generally may not invoke that entitlement

retroactively. Section 630.1203(h) also states that “[a]n agency may not put an

employee on [FMLA] leave and may not subtract leave from an employee’s

entitlement to [FMLA leave] unless the agency has obtained confirmation from

the employee of his or her intent to invoke entitlement to [FMLA leave].” OPM

explained these provisions by stating that, “The requirement that an employee

must initiate action to take FMLA leave is consistent with all other Federal leave

policies and programs in that the employee is responsible for requesting leave or

other time off from work.” Family and Medical Leave, 65 Fed. Reg. 26,483 -01,

26,483, 26,486-87 (May 8, 2000) (codified as amended, in relevant part, at

5 C.F.R. § 630.1203(b), (h)).

¶35 The circumstances of this case suggest that the appellant’s continued

absence was related to a serious health condition. See supra ¶¶ 6-10. But we

found no indication that the appellant invoked FMLA protection for his leave,

even though the numerous leave slips he completed during the relevant period

contained a space for him to do so. IAF, Tab 9 at 29-30, 37-38, 41, 43, 45, 47-50.

This seems to be true of both the 42 weeks of leave the agency granted for his

mental health condition leading up to his AWOL, as well as the period at issue in

the AWOL and excessive absence charges, which amounts to less than the

12 weeks contemplated by the FMLA. So, the facts before us present a n umber of

questions, including (1) whether Bowen remains good law, given the seemingly

contradictory regulatory provisions, (2) whether the agency could and should

have afforded the appellant FMLA leave for any period, despite him not invoking

FMLA when specifically prompted with an opportunit y to do just that and, if so,

(3) for what period should that FMLA leave have applied to his absence.

¶36 At this time, we decline to rule on these or related questions. We also

decline to address the appellant’s other arguments contesting these charges. PFR

File, Tab 1 at 10-11, 17, 19, 21-22. These include arguments that he should have

been granted advanced leave, his absence was not a burden to the agency, the

agency did not need to fill his position, and his approved absences did not

continue beyond a reasonable time. Id. We need not reach these issues because

we find that the agency’s insubordination charge, alone, supports the appellant’s

removal. Infra ¶¶ 55-58; see, e.g., Alvarado v. Department of the Air Force,

103 M.S.P.R. 1, ¶¶ 2, 40-41 (2006) (finding that the penalty of removal was

reasonable based on a charge of insubordinate defiance of authority, so it was

unnecessary to address the additional charge of misuse of Government

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

(10th Cir. 2012); Luciano v. Department of the Treasury, 88 M.S.P.R. 335,

¶¶ 3, 10-13, 23 (2001) (finding it unnecessary to determine whether an

administrative judge erred in failing to sustain all of the specifications supporting

an agency’s insubordination charge because the sustained specifications and the

proven charge of AWOL warranted the appellant’s removal), aff’d per curiam,

30 F. App’x 973 (Fed. Cir. 2002).

The appellant did not prove his affirmative defense of disability discrimination.

¶37 The appellant argued below that his removal was the product of disability

discrimination. IAF, Tab 1 at 5, Tab 11 at 12, 15. Before we turn to the

administrative judge’s findings and the appellant’s arguments on review, it is

useful to recount some of the most salient facts.

¶38 The appellant began taking extensive leave in 2012, consistent with his

psychiatrist’s letters about his condition and the need for time off. Supra ¶ 3;

e.g., 0167 IAF, Tab 11, Part 1 at 32, 38 of 58. Among other things, these letters

described the appellant as suffering from a deteriorating psychiatric condition that

was, at times, totally disabling and consisting of aggressive episodes. 0167 IAF,

Tab 11, Part 2 at 13. Any disability-related inquiry by an employer must be

“shown to be job-related and consistent with business necessity.” 42 U.S.C.

§ 12112(d)(4)(A); Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 30

(2014). The Board previously found, in Rosario-Fabregas, 122 M.S.P.R. 468,

¶¶ 14-17, that the agency’s requests for a medical release in 2012 met this

standard and were therefore permissible. The Board explained that the agency

had a reasonable belief that the appellant’s ability to perform the essential

functions of his position was impaired, and also reasonably believed that he posed

a direct threat due to his condition. Id. In November 2012, the appellant’s

psychiatrist indicated that he could attempt to return to a part-time schedule on a

trial basis for 3 weeks, but the agency deemed his opinion both contradictory and

insufficient in that it failed to explicitly address the essential functions of the

appellant’s position. 0167 IAF, Tab 11, Part 1 at 8-9 of 58, Part 4 at 4-7 of 27.

In the days that followed, the agency took the removal action that the Board later

mitigated to a suspension. Supra ¶¶ 3-4.

¶39 While preparing for the appellant’s return to work in 2016, after the Board

mitigated his removal, the agency requested a release from his medical provider.

Supra ¶ 6. Although the Board’s decision to mitigate the appellant’s prior

removal did not address the sufficiency of the appellant’s November 2012

medical update, we find that it did not suffice for purposes of the attempted return

to duty in 2016. This is because, among other things, the November 2012

medical update was several years old and had merely suggested that the appellant

was, at that point, ready for a brief trial run at working part -time. 0167 IAF,

Tab 11, Part 4 at 4-7 of 27. The November 2012 medical update was also lacking

in terms of the appellant’s ability to perform the essential functions of his

position. Id. It instead described the appellant in general terms such as the

appellant being able to understand and carry out only “lowest complexity

instructions.” Id. at 7 of 27.

¶40 The appellant did not immediately submit the medical release requested in

2016, nor did he return to work. Instead, the appellant began requesting

extensive annual and sick leave. Id. When the appellant did eventually submit a

medical note from his provider, it indicated that the appellant’s condition would

not allow his return to work until at least June 2017. Supra ¶ 7; IAF, Tab 9 at 46.

As that date neared and in the months that followed, the agency unsuccessfully

tried to obtain verification that the appellant was medically cleared for work

before eventually taking the removal action before us. Supra ¶¶ 8-11.

¶41 In her initial decision, the administrative judge found that the appellant’s

disability discrimination claim appeared to be based on the agency’s requirement

that he provide a medical release to return to work, but the request was proper.

ID at 17. On petition for review, the appellant disputes the administrative judge’s

finding, arguing that agency should not have required a medical release because

its safety concerns were unfounded. PFR File, Tab 1 at 8 -9, 22.

¶42 The appellant has not alleged that he provided any updated medical

documentation to the agency that might have ameliorated the agency’s prior

concerns. Nor has he presented any such evidence before the Board. The

agency’s longstanding and justified concerns about the appellant’s ability to

safely and effectively perform the essential functions of his position and his

previously diagnosed potential for aggression would have been exacerbated by his

submission of medical notes indicating he “should not return to work.” IAF,

Tab 9 at 40, 42, 44, 46. The notes provided no explanation suggesting the

appellant had recovered. Id. The only specific information the appellant’s

psychiatrist provided for his continued absence was that the appellant was

“anxious,” his capacity to concentrate was decreased, and he had “worry related

to several issues arising in the agency with his return to work.” Id. at 46. Thus,

the appellant’s own medical evidence suggested he had not improved, and may

have deteriorated.

¶43 On review, the appellant also argues that the agency committed disability

discrimination by failing to offer him a reasonable accommodation for his

condition. PFR File, Tab 1 at 8-9, 15-16, 20. The appellant raised this argument

below, but the administrative judge did not address it. IAF, Tab 11 at 8, 11-12,

14-16, 22-23, Tab 36 at 12-13. We have therefore considered the argument but

find it unavailing. As the Board previously explained in his prior appeal, a

failure to accommodate claim will fail if an employee’s refusal to engage in the

interactive process prevented the agency from identifying a reasonable

accommodation. Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 18; see Herb L. v. U.S.

Postal Service, EEOC Appeal No. 0120140330, 2016 WL 4492212, at *7

(Aug. 17, 2016) (finding that a complainant who did not provide requested

documentation regarding the “parameters” of his need to rest his hip did not

demonstrate that he was entitled to a reasonable accommodation) . Here, the

appellant requested an accommodation in the form of part-time work in

February 2017, at the same time that his psychiatrist said he was unable to work.

IAF, Tab 8 at 190, Tab 9 at 44, 46. The agency promptly and repeatedly

requested supportive medical documentation that the appellant never provided.

IAF, Tab 6 at 35-36, 237, Tab 8 at 188-90, 201-02, 244-45. The agency’s request

was reasonable and appropriate under the circumstances because whether or how

a modification to his work schedule would have enabled the appellant to perform

his duties is not obvious and had not been addressed in any of the documentation

that the appellant had previously provided. See White v. Department of Veterans

Affairs, 120 M.S.P.R. 405, ¶ 14 (2013). Therefore, the appellant’s failure to

engage precludes him from prevailing on this failure to accommodate claim.

¶44 The appellant separately argues that the agency should have accommodated

him by providing him additional leave. PFR File, Tab 1 at 9. The use of accrued

paid leave or unpaid leave can be a form of reasonable accommodation. Willa B.

v. Department of Veterans Affairs, EEOC Appeal No. 2021000628, 2022 WL

1631370, at *5 (Apr. 27, 2022). However, “LWOP for an indefinite period of

time with absolutely no indication that one will or could return is not an

accommodation contemplated under the Rehabilitation Act.” Hilda H. v.

Department of Veterans Affairs, EEOC Appeal No. 0120162443, 2018 WL

1392246, at *4 (Mar. 6, 2018), req. to reconsider denied, EEOC Request

No. 0520180318, 2018 WL 3584199 (July 3, 2018). Before proposing his

removal, the agency already had provided the appellant with nearly 1 full year of

approved leave while it waited for some indication that he might be able to return

to duty. We find that the appellant has not shown that the agency violated his

rights by declining to continue with this course of action.

¶45 The appellant also argues that the agency removed him in retaliation for

opposing disability discrimination, i.e., for refusing to sign what he believed to be

an overly broad release for the agency-appointed psychiatrist to obtain his health

records. PFR File, Tab 1 at 11-14, 19-20. However, because the appellant did

not raise this argument below, and it is not based on previously unavailable

evidence, we decline to consider it. See Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 6 (2016).

The appellant did not prove his affirmative defense of discrimination based on

national origin.

¶46 National origin discrimination is prohibited under Title VII of the Civil

Rights Act of 1964. 42 U.S.C. § 2000e-16(a). To prove an affirmative defense of

national origin discrimination, an appellant must prove that national origin was a

motivating factor in the contested personnel action. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 20-21. Such a showing may entitle

an appellant to injunctive or other “forward looking reli ef.” Id., ¶ 22. To obtain

full relief, including status quo ante relief, compensatory damages, or other forms

of relief related to the end result of an employment decision, an appellant must

prove that the prohibited consideration “was a but-for cause of the employment

outcome.” Id. (quoting Babb v. Wilkie, 140 S. Ct. 1168, 1171, 1177-78).

¶47 In this case, the administrative judge found that the appellant was “of the

view that the agency discriminated against him because he is Hispanic,” but that

the appellant did not present any evidence to support his claim. ID at 17. The

appellant disputes this finding on review, arguing that his 2010 removal without

due process constitutes evidence of national origin discrimination. PFR File,

Tab 1 at 15, 23. We find, however, that the procedural defects in the agency’s

2010 removal action are not probative of whether the appellant’s 2018 removal

was motivated by national origin discrimination. We agree with the

administrative judge that the appellant has presented no evidence to support this

affirmative defense. 11 ID at 17.

The appellant did not prove his affirmative defense of whistleblower reprisal.

¶48 In adverse action appeal, an appellant’s claim of reprisal for making a

protected disclosure under 5 U.S.C. § 2302(b)(8), or engaging in protected

activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), is analyzed under the

burden-shifting scheme set forth in 5 U.S.C. § 1221(e). Alarid, 122 M.S.P.R.

600, ¶ 12. The appellant must first prove that his disclosure or activity was

protected under sections 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D). Alarid,

122 M.S.P.R. 600, ¶¶ 12-13. He must next prove that his protected disclosure or

activity was a contributing factor in the challenged personnel action. Id. If the

appellant makes both of these showings by preponderant evidence, the burden of

persuasion shifts to the agency to prove by clear and convincing evidence that it

would have taken the same action in the absence of the appellant’s disclosure or

activity. Id., ¶ 14.

¶49 In this case, the appellant argued below that his removal was in retaliation

for protected whistleblowing, but the grounds of his claim were unclear. IAF,

Tab 11 at 4, 23, 30, 32. The administrative judge notified the appellant of how to

prove an affirmative defense of whistleblower retaliation, IAF, Tab 17 at 2-5, but

the appellant’s subsequent pleadings did little to clarify the matter. In any event,

the administrative judge construed the appellant’s defense as pertaining to the

series of emails at issue in the insubordination charge, i.e., the ones that led to his

To the extent that the appellant’s claim could be construed as an affirmative defense

of race discrimination, which is prohibited under the same statute, the same analysis

would apply. See Pridgen, 2022 MSPB 31, ¶¶ 20-22.

supervisor’s instructions and the ones that violated those instructions . ID at 19;

e.g., IAF, Tab 5 at 120-39, Tab 6 at 9. The administrative judge found that the

appellant provided no evidence in support of the allegations contained in those

emails and that he therefore failed to show that that he had a reasonable belief

that either of the emails evidenced Government wrongdoing. ID at 19.

¶50 On petition for review, the appellant argues that the agency was overly

lenient with management officials who committed misconduct similar to that for

which the appellant had been removed in 2010. PFR File, Tab 1 at 22 -23. In

support of his contention, the appellant cites to a discovery response that the

agency provided him in connection with his second removal appeal. Id. at 23;

IAF, Tab 6 at 104-10. The appellant’s argument provides no basis to disturb the

initial decision.

¶51 A protected whistleblower disclosure is a disclosure that an appellant

reasonably believes evidences a violation of any law, rule, o r regulation, gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health or safety. Smith v. Department of the Army,

2022 MSPB 4, ¶ 14. A reasonable belief exists if a disinterested observer with

knowledge of the essential facts known to and readily ascertainable by the

appellant could reasonably conclude that the actions of the Government evidence

one of the categories of wrongdoing listed in section 2302(b)(8)(A). Id. The

appellant need not prove that the matter disclosed actually established one of the

types of wrongdoing listed under section 2302(b)(8)(A); rather, the appellant

must show that the matter disclosed was one which a reasonable person in his

position would believe evidenced any of the situations specified in 5 U.S.C.

§ 2302(b)(8). Id.

¶52 In his August 24, 2017 email, the appellant accused the agency of abus ing

its authority by allowing certain higher-level management officials accused of

misconduct to separate from service with a clean record. IAF, Tab 6 at 9. The

agency’s discovery response, however, indicates that one of the two named

officials resigned in the face of a notice of proposed removal and that the other

was disciplined with a letter of reprimand and continued his employment at the

agency. Id. at 104-05. Therefore, even having considered the agency’s discovery

response, we agree with the administrative judge that the appellant has provided

no evidence to support the allegations contained in this email. ID at 19.

¶53 We separately note that the appellant’s response to the agency’s cross

petition for review seems to present another theory about his whistleblower

retaliation claim. The appellant suggests that his August 24, 2017 mass email

was also protected whistleblowing because it contained allegations of

discrimination. PFR File, Tab 5 at 19; IAF, Tab 6 at 9. We need not consider

this claim because a reply is limited to factual and legal issues raised by another

party in response to the petition for review and may not raise new allegations of

error. 5 C.F.R. § 1201.114(a)(4). In any event, even if we were to consider this

argument, we would not grant the appellant’s petition for review. Although the

appellant’s email message summarily asserted that a certain agency office

discriminated against Hispanics, IAF, Tab 6 at 9, this allegation is not a protected

disclosure, see Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 6

(2016) (recognizing that disclosures must be specific and detailed, not vague

allegations of wrongdoing); see also Edwards v. Department of Labor,

2022 MSPB 9, ¶¶ 10-17, 22 (reaffirming that Title VII-related claims are

excluded from protection under the whistleblower protection statutes).

The appellant has not shown that his removal was the product of harmful

procedural error or a due process violation.

¶54 An agency’s failure to provide a tenured public employee with an

opportunity to present a response, either in person or in writing, to an appealable

agency action that deprives him of his property right in his employment

constitutes an abridgement of his constitutional right to minimum due process of

law, i.e., prior notice and an opportunity to respond. Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 546 (1985). In this case, the appellant

asserts on review, as he did below, that the agency violated his right to due

process. PFR File, Tab 1 at 7, 11, 13, 15-16, 23-24; IAF, Tab 1 at 5, Tab 11

at 11, 19, 27, Tab 36 at 5-6, 12, 17. The administrative judge did not address the

due process issue specifically, but having reviewed the appellant’s arguments, we

find that he has not established a due process violation. Although the appellant

asserts that the agency violated his due process rig hts in many respects, his

assertions do not pertain to the issues of notice and opportunity to respond. For

instance, the appellant argues that the agency violated his due process rights by

requiring him to obtain a medical release before returning to wor k, by failing to

provide medical records to the agency-appointed psychiatrist without the

appellant’s authorization, and by not granting him additional LWOP. PFR File,

Tab 1 at 11, 13, 22. We find that none of the appellant’s arguments are sufficient

to establish a due process violation.

¶55 The appellant also argues on review that the agency committed harmful

procedural error. PFR File, Tab 1 at 5, 7, 16-17, 23-24. However, it does not

appear that he raised this issue below. See Clay, 123 M.S.P.R. 245, ¶ 6. In any

event, to prove that the agency committed harmful procedural error under

5 U.S.C. § 7701(c)(2)(A), an appellant must show both that the agency committed

procedural error and that the error was harmful. Parker v. Defense Logistics

Agency, 1 M.S.P.R. 505, 513 (1980). Here, the appellant has neither identified

nor cited the agency rules or regulations in question, and thus has not shown

procedural error. Simmons v. Department of the Navy, 11 M.S.P.R. 82, 83-84

(1982). For instance, he argues that the agency’s failure to account for his

difficulty in obtaining a medical release and its failure to grant him additional

LWOP were harmful procedural errors, but he identified no corresponding agency

rule. PFR File, Tab 1 at 17, 22. Therefore, even if we were to consider the

appellant’s late-raised arguments, we would find that he has not established his

affirmative defense.

The Board lacks jurisdiction over the instant appeal as a constructive suspension

claim.

¶56 The appellant argues for the first time on petition for review that his

absence from duty constituted an appealable constructive suspension. PFR File,

Tab 1 at 24. Although the appellant did not raise this argument below, we

exercise our discretion to address it here. Concerning the absence at issue in this

appeal, from September 6, 2016, through his August 24, 2018 removal, we f ind

that the appellant cannot establish that any period of this absence constituted an

appealable constructive suspension.

¶57 To establish Board jurisdiction over a constructive suspension appeal, an

appellant must prove by preponderant evidence that (1) he l acked a meaningful

choice in his absence; and (2) it was the agency’s wrongful actions that deprived

him of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013).

As explained above, regardless of whether the appellant had a meaningful choice

in his absence, no period of that absence was the result of the agency’s improper

acts. From September 6, 2016, through June 1, 2017, the appellant was absent on

his psychiatrist’s orders, and thereafter, he was absent because he was unable to

furnish a medical release, which the agency was fully entitled to require as a

condition of his return.

Removal is the maximum reasonable penalty for the appellant’s insubordination.

¶58 Because we have declined to rule on the AWOL and excessive absences

charges, and we are proceeding based only on the insubordination charge, it is

appropriate for us to analyze the penalty as if not all char ges were sustained.

Alvarado, 103 M.S.P.R. 1, ¶ 44. When the Board sustains fewer than all of the

agency’s charges, and the agency either indicates that it would have imposed the

same penalty based on the sustained charges, or does not indicate to the contrary,

the Board’s role is not to independently determine the penalty, but to decide

whether the agency’s choice of penalty is appropriate. Negron v. Department of

Justice, 95 M.S.P.R. 561, ¶ 32 (2004) (citing Lachance v. Devall, 178 F.3d 1246,

1258-59 (Fed. Cir. 1999)). The Board cannot “substitute its will” for that of the

agency, which is entrusted with managing its workforce. Id. (quoting Lachance,

178 F.3d at 1258). Rather, the Board “may mitigate an unreasonably severe

agency penalty to bring the penalty within the bounds of reasonableness.” Id.

(quoting Lachance, 178 F.3d at 1258).

¶59 As previously mentioned, the proposal to remove the appellant stated that

any of the charges would support his removal from service. IAF, Tab 5 at 75-84.

Further, the agency submitted a declaration from the deciding official, in which

he stated under penalty of perjury that “[a]ny one of the charges alone w ould have

supported [the] decision to remove [the appellant] from service .” IAF, Tab 35

at 19-20. Such a declaration, if uncontested as appears to be the case here, proves

the facts it asserts. Woodall v. Federal Energy Regulatory Commission,

30 M.S.P.R. 271, 273 (1986).

¶60 The deciding official completed a Douglas factor checklist around the same

time as his decision letter. IAF, Tab 5 at 14-15; see Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of

factors that may be relevant in determining an appropriate penalty) . This

checklist described the appellant’s documented mental and emotional distress as a

mitigating factor, along with his 29 years of Federal service. IAF, Tab 5 at 15. It

also indicated that the insubordination charge, alone, would warrant removal

under the agency’s table of penalties. Id. at 14. The deciding official’s Douglas

factor checklist further referred to numerous other factors as aggravating for

purposes of the penalty determination, including the seriousness of the appellant’s

insubordination, his prior 30-day suspension, the multiple notices that his conduct

was unacceptable, and his lack of remorse. Id. at 14-15.

¶61 In his petition, the appellant suggests that removal was too harsh a penalty

for any of his alleged misconduct, particularly because of his past service and

disabilities. PFR File, Tab 1 at 4, 16. We disagree. We find that the facts at

hand support the appellant’s removal, even if we only consider the sustained

insubordination charge. See Parbs, 107 M.S.P.R. 559, ¶¶ 9, 12, 24-26 (construing

an agency’s charge as one of insubordination concerning a single incident and

finding that it warranted removal); Murry v. General Services Administration,

93 M.S.P.R. 554, ¶¶ 2, 6, 8-9 (2003) (finding that an administrative judge erred

by mitigating a removal to a suspension when the agency proved only one of its

three specifications supporting its insubordination charge), aff’d, 97 F. App’x 319

(Fed. Cir. 2004).

¶62 In conclusion, we find that the agency proved its charge of insubordination.

We further find that the insubordination charge, alone, supports the penalty of

removal, so we need not rule on the agency’s AWOL and excess ive absences

charges. We also find that the appellant failed to prove any affirmative defense.

Accordingly, we sustain the appellant’s removal from service.

NOTICE OF APPEAL RIGHTS 12

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

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.

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 t he U.S.

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

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

§ 7703(b)(1)(A).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

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

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

were affected by an action that is appealable to the Board and that 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

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

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

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

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

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

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

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

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

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

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

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in

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

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 13 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

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

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

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