Opinion

Sharon Prystalski v. Department of Defense

Court: Merit Systems Protection Board
Filed: Jul 11, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHARON M. PRYSTALSKI, DOCKET NUMBER

Appellant, SF-0752-16-0577-I-1

DEPARTMENT OF DEFENSE, DATE: July 11, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bradley R. Marshall, Charleston, South Carolina, for the appellant.

Douglas W. Frison, Esquire, APO/AP, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

sustained her removal for failure to follow instructions. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

¶2 Effective June 17, 2016, the agency removed the appellant from her School

Psychologist position with the Daegu American School, Department of Defense

Education Activity (DODEA), based on a charge of failure to follow instructions

(2 specifications). Initial Appeal File (IAF), Tab 5 at 12, 24. In support of the

charge, the agency alleged that the appellant twice failed to comply with the

Assistant Principal’s instructions to provide him the following information: an

updated list of the students for whom she was providing services at the school;

the reason each child was referred for services; the start date of services for each

child; and the total number of sessions she provided for each child. IAF, Tab 6

at 12, 15-16, 21.

¶3 The appellant filed a Board appeal challenging her removal , and she

requested a hearing. IAF, Tab 1. She raised several affirmative defenses but

withdrew them during the hearing. IAF, Tab 1 at 5; Tabs 21, 25; Hearing

Transcript (HT), December 5, 2016, at 5.

¶4 Following a hearing, the administrative judge issued an initial decision that

affirmed the appellant’s removal. IAF, Tab 32, Initial Decision (ID) at 1, 14.

The administrative judge found that the agency proved the charge and both

specifications. ID at 12. The administrative judge also found that the agency

proved nexus and that the penalty of removal is reasonable. ID at 13-14.

¶5 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 3, 2 to which the agency has responded in opposition, PFR File, Tab 4.

The appellant has filed a reply to the agency’s response. PFR File, Tab 6.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the agency proved the charge by

preponderant evidence.

¶6 To prove a charge of failure to follow instructions, an agency must establish

that the employee was given proper instructions and she failed to follow the

instructions, without regard to whether the failure was intentional or

unintentional. Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 16

(2014). Even when the employee may have substantial reason to question the

instructions, absent unusual circumstances, such as when obedience would cause

her irreparable harm or place her in a clearly dangerous situation or when the

instructions are clearly unlawful, she must first comply with the instructions and

then, if she disagrees with them, register her complaint or grievance later.

Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶¶ 16, 18, aff’d,

343 F. App’x 605 (Fed. Cir. 2009); Larson v. Department of the Army,

91 M.S.P.R. 511, ¶ 21 (2002).

¶7 Applying these standards, the administrative judge found that the Assistant

Principal gave the appellant proper instructions and that she failed to fully

comply with them. ID at 7. The administrative judge further found that the

appellant did not show that providing the requested information was clearly

With her petition for review, the appellant submits the hearing transcript in this

appeal. PFR File, Tab 3 at 28-244. Because the transcript is already part of the record,

IAF, HT, it does not constitute new evidence. See Meier v. Department of the Interior,

3 M.S.P.R. 247, 256 (1980).

unlawful so as to excuse her noncompliance with the instructions. ID at 9. The

administrative judge therefore sustained the charge. ID at 12.

¶8 On review, the appellant argues that the Assistant Principal’s instructions

violated various laws, agency policies, and professional ethics standards that

prohibit psychologists from disclosing confidential information. PFR File, Tab 3

at 10-23. The administrative judge thoroughly addressed this argument in the

initial decision and found that the appellant was not precluded by law or

professional ethics from providing the Assistant Principal with the requested

information. ID at 8-12. In making this finding, the administrative judge

considered each item of information that the Assistant Principal asked the

appellant to provide and found that none of the requested information is

confidential. ID at 9-10. For example, the administrative judge found that the

reason for counseling is not confidential to the school psychologist inasmuch as

DODEA Manual 2946.4 contains a form for requesting services from the school

psychologist which directs the individual completing the form to identify the

reason for the request. ID at 9. The administrative judge further found that for

school personnel to work collaboratively and manage resources, the information

at issue must be shared with administrators when requested. ID at 10.

¶9 Although the appellant clearly disagrees with the administrative judge’s

finding that disclosing the information would not be clearly unlawful, she has

failed to show any legal error in the administrative judge’s analysis. See 5 C.F.R.

§ 1201.115(b). Therefore, she has failed to provide a reason to disturb the

administrative judge’s finding that the agency proved the charge. See Crosby v.

U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb

the administrative judge’s findings when she considered the evidence as a whole,

drew appropriate references, and made reasoned conclusions); see also

Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359

(1987) (same). 3

The administrative judge correctly found that the pena lty of removal is

reasonable.

¶10 The appellant also argues on review that the agency improperly applied the

Douglas factors 4 in deciding to remove her and that the penalty of removal is too

severe. 5 PFR File, Tab 3 at 23-25. When, as here, the agency’s charge is

sustained, the Board will review the agency-imposed penalty only to determine if

the agency considered all the relevant factors and exercised management

discretion within tolerable limits of reasonableness. Wiley v. U.S. Postal Service,

102 M.S.P.R. 535, ¶ 14 (2006), aff’d, 218 F. App’x 1001 (Fed. Cir. 2007). In

reviewing such a penalty, the Board must give due weight to the agency’s primary

discretion in maintaining employee discipline and efficiency, recognizing that the

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

that managerial judgment has been properly exercised. Miles v. Department of

the Navy, 102 M.S.P.R. 316, ¶ 12 (2006). The Board will modify a penalty only

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

To the extent the appellant may be arguing that her decision to not follow the

Assistant Principal’s instructions was covered by the Follow the Rules Act, Pub. L.

No. 115-40, 131 Stat. 861 (2017), which states that Federal workers are now protected

under whistleblower laws from retaliation for refusing to obey orders that violate rules

and regulations and not just statutes, the Board, in Fisher v. Department of the Interior,

2023 MSPB 11, ¶ 19, determined that this Act—which was signed into law on June 14,

2017—would not be applied retroactively. See 5 U.S.C. § 2302(b)(9)(D). For that

reason, we have not applied this law to this case.

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of 12 factors that are relevant in assessing the

appropriate penalty for an act of misconduct. These so -called Douglas factors include

the nature and seriousness of the offense, the appellant’s past disciplinary record, her

past work record, her potential for rehabilitation, and mitigating circumstances

surrounding the offense. Id.

The appellant does not challenge the administrative judge’s finding that the agency

proved nexus. ID at 13. We discern no reason to disturb this finding.

exceeded the bounds of reasonableness in determining the penalty. Adam v. U.S.

Postal Service, 96 M.S.P.R. 492, ¶ 5 (2004).

¶11 The decision letter and the deciding official’s written analysis of the

Douglas factors demonstrate that she properly weighed these factors in deciding

to remove the appellant. IAF, Tab 5 at 24-33. The deciding official found that

the appellant’s misconduct was “very serious” as it relates to the appellant’s

duties and responsibilities. Id. at 24. The deciding official also considered that

the appellant had two recent instances of prior discipline (a letter of repr imand

and a 5-day suspension) for similar misconduct and that removal is within the

range of penalties set forth in the DODEA Schedule of Offenses and

Recommended Penalties. Id. at 24-25, 28-29, 146; IAF, Tab 6 at 24-25, 31-32.

¶12 The deciding official also found that, although the appellant had over

13 years of Federal service, she is not dependable or reliable. IAF, Tab 5 at 28.

In addition, the deciding official concluded that the appellant’s misconduct

caused management to lose all trust and confidence in her ability to perform her

assigned duties and that her potential for rehabilitation was doubtful, given her

disciplinary record and her repeated failure to follow instructions. Id. at 25, 29.

¶13 In assessing the reasonableness of the agency’s penalty, the administrative

judge noted the factors that the deciding official considered in making her penalty

determination and found that the agency showed that removal was within the

bounds of reasonableness. ID at 14. Recognizing that the Board must accord

proper deference to the agency’s primary discretion in managing its workforce,

we see no reason to disturb this finding. See Douglas, 5 M.S.P.R. at 306.

¶14 Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 6

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 rev iew

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

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

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

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

§ 7703(b)(1)(A).

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

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

following address:

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.

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. 7 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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