# Jeneil Magloire v. General Services Administration

> Merit Systems Protection Board · August 16, 2023

URL: https://www.frixlaw.com/law-library/cases/9556393

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 16, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9556393

## How later opinions describe it (automated extraction)

- finding that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge
- finding that an arbitrator erred by stating that the issue before him was whether the penalty was within the tolerable limits of reasonableness based upon the facts and circumstances known to the deciding official at the time
- finding that an arbitrator erred by stating that the issue before him was whether the penalty was within the tolerable limits of reasonableness based upon the facts and circumstances known to the d eciding official at the time
- finding that “[o]nly ex parte communications that introduce new and material information to the deciding official will violate the due process guarantee of notice”

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JENEIL H. MAGLOIRE, DOCKET NUMBER
Appellant, AT-0752-19-0778-I-1

v.

GENERAL SERVICES DATE: August 16, 2023
ADMINISTRATION,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jennifer Robinson, Denver, Colorado, for the appellant.

Carisa LeClair and Jaron E. Chriss, Atlanta, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which
sustained the agency’s charge of absence without leave (AWOL) and mitigated
the appellant’s removal to a 30-day suspension. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 app eal, 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 September 30, 2018, the agency removed the appellant from her
position as a GS-14 Realty Officer in the agency’s Real Property Utilization and
Disposal Division on a single charge of AWOL. Initial Appeal File (IAF), Tab 4
at 4, 5-9. The charge was supported by 41 specifications alleging that the
appellant had failed to report to work and did not contact her supervisor to
request approval for her absences between May 14 and July 16, 2018. Id. at 5-9,
39-46. The appellant filed a formal equal employment opportunity (EEO)
complaint in which she claimed that her removal resulted from disability
discrimination based on her medical conditions of cognitive issues, memory loss,
and anxiety disorder. IAF, Tab 8 at 5-7. On August 16, 2019, the agency issued
its Final Agency Decision on the appellant’s EEO complaint, finding that the
agency did not subject the appellant to discrimination on the basis of her
disability. Id. at 8-21. The appellant timely filed this appeal on September 14,
2019. IAF, Tab 1.
3

¶3 After holding a hearing, the administrative judge determined that, on the
earliest date for which the agency charged the appellant as AWOL, she had
exhausted her sick and annual leave. IAF, Tab 43, Initial Decision (ID) at 12.
However, he determined that, during the time that the agency alleged she was
AWOL, the appellant had 35 hours of leave available to her under the Family and
Medical Leave Act (FMLA). 2 ID at 12-13. Presuming that the appellant had a
FMLA-qualifying reason for her absence for those 35 hours, the administrative
judge found that the agency established that the appellant would not have had
FMLA leave available for her use on at least 36 of the 41 days that the agency
alleged she was AWOL. ID at 13. The administrative judge also determined the
agency established that, despite the medical conditions that the appellant
experienced during the time the agency found that she was AWOL, its denial of
leave without pay (LWOP) was reasonable. ID at 17. Because the agency
established that the appellant was absent from work during each day that the
agency alleged she was AWOL, and that it had properly denied her requests for
LWOP on 36 of those days, the administrative judge sustained the AWOL charge.
ID at 17-18.
¶4 The administrative judge found that the appellant failed to prove that the
agency denied her due process by considering ex parte information. ID at 18-22.
He also found that the appellant failed to establish that the agency discriminated
against her on the basis of her disability. ID at 25-26. The administrative judge
determined that the agency established a nexus between the appellant ’s AWOL

2
Subject to meeting certain certification requirements, the FMLA entitles an employee
to a total of 12 administrative workweeks of leave during any 12 -month period for one
of the FMLA-qualifying reasons, to include caring for a parent who has a serious health
condition or because of 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). The
administrative judge determined that, as of April 23, 2018, the appellant had used 445
of her 480 hours of FMLA-qualifying leave for the year ending January 4, 2019, leaving
her with 35 hours of remaining entitlement to leave under the FMLA. ID at 12-13 &
n.2; IAF, Tab 21 at 19-20.
4

and the efficiency of the service. ID at 10-11. Nevertheless, he also determined
that the medical evidence the appellant submitted after her removal established
that she had made significant strides during her treatment and had sufficiently
recovered with essentially a clean bill of health regarding her cognitive functions.
ID at 29. Given that recovery, which he observed had happened within a month
of her removal, and her long, successful service history, the administrative judge
found that the penalty of removal exceeded the tolerable bounds of
reasonableness, and he mitigated the penalty to what he determined was the
maximum reasonable penalty, a 30-day suspension. Id.
¶5 In its petition for review, the agency argues that , in mitigating the penalty,
the administrative judge improperly substituted his judgment for that of the
agency. Petition for Review (PFR) File, Tab 1 at 4, 9-10. The agency contends
that the deciding official carefully considered each of the Douglas factors and
determined that a lesser penalty was not justified, despite the mitigating factors of
the appellant’s 28 years of Federal service and work performance. Id. at 10-11.
It argues that the administrative judge incorrectly used post -removal evidence to
conclude that the appellant’s medical condition could be remedied or controlled
and contends that the deciding official reasonably concluded otherwise in
determining that the appellant’s potential for rehabilitation was poor. Id.
at 14-15. The agency also argues that the administrative judge gave the
appellant’s post-removal evidence more weight than was warranted under the
circumstances, contending that the post-removal medical evidence had nothing to
do with the events that led to her removal. Id. at 15-16.
¶6 The appellant filed a motion to file an additional pleading, i.e., a motion to
dismiss the agency’s petition for review as moot, in which she argued that,
because the agency had exceeded the interim relief that was ordered by the
administrative judge, it had effectively removed the action from controversy.
PFR File, Tab 7 at 6-7, Tab 8 at 4-5. The appellant also contended that, in the
alternative, the agency’s petition for review should be dismissed because the
5

agency had failed to comply with the administrative judge’s interim relief order
by transferring her to the position of Supervisory Realty Specialist rather than
appointing her to the position of Realty Officer. PFR File, Tab 7 at 8. 3 The
appellant has also filed a response to the agency’s petition for review. PFR File,
Tab 9. The agency has filed a response to the appellant’s motion to dismiss and a
reply to the appellant’s response to its petition for review. PFR File, Tabs 13-14.

DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the agency proved the AWOL
charge and established the nexus requirement.
¶7 As explained above, the administrative judge found that the agency
established the AWOL charge concerning 36 of the 41 days that it alleged the
appellant was AWOL. ID at 13; Savage v. Department of the Army, 122 M.S.P.R.

3
As an initial matter, we grant the appellant’s motion to file an additional pleading.
However, we deny her motion to dismiss the appeal as moot, or, alternative ly, to
dismiss the agency’s petition for review for failure to demonstrate compliance with the
interim relief order. Even if the agency exceeded the administrative judge’s interim
relief order, the agency’s petition for review is not moot. See Campbell v. U.S. Postal
Service, 95 M.S.P.R. 185, ¶ 6 (2003) (stating that the Board will not automatically
dismiss an agency’s petition for review as moot when the agency has in good faith and
inadvertently exceeded the requirements of an interim relief order ).
Regarding the appellant’s argument that the agency did not comply with the
administrative judge’s interim relief order, the agency alleged that it reinstated the
appellant to the Realty Officer position, and then reassigned her to the position of
Supervisory Realty Specialist with the same duty and pay grade, which it mistakenly
considered to also be a Realty Officer position. PFR Fi le, Tab 13 at 6-7. It also argued
that the Supervisory Realty Specialist position was within the appellant ’s experience,
and served the agency’s needs. Id. at 8. The agency asserted that the appellant’s
original position had been slated to be abolished, and that, because it had a strong and
overriding interest in the appellant’s reassignment, it had therefore made an implicit
undue disruption determination. Id. at 8-9; see Purzycki v. General Services
Administration, 81 M.S.P.R. 188, ¶ 9 (1999) (finding that an agency should be found in
compliance with an interim relief order if it can show that it had a strong overriding
interest or compelling reason for assigning duties other than those assigned prior to an
appellant’s separation and that, if the agency can make such a showing, the Board will
find that it has made an implicit undue disruption determination ). The agency also
argues that, prior to her removal, the appellant specifically requested to be reassigned to
a different division. Id. Accordingly, we find the appellant’s argument unavailing.
6

612, ¶ 28 n.5 (2015) (explaining that, to prove an AWOL charge, an agency must
demonstrate that the employee was absent without authorization and, if the
employee requested leave, that the request was properly denied) , overruled in
part by Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25.
The administrative judge declined to sustain 5 days of AWOL due to the
appellant’s remaining entitlement to 35 hours of leave under the FMLA. See
Ellshoff v. Department of the Interior; 76 M.S.P.R. 54, 73 (1997) (finding that,
when the facts related to a leave-related charge implicate the FMLA, the Board
will consider and apply the FMLA without shifting the burden of proof to the
appellant). Because he sustained 36 of the specifications, he sustained the
charge. ID at 13; Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed.
Cir. 1990) (finding that, when more than one event or factual specification
supports a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge). He also found that the agency
established a nexus between the charged misconduct and the efficiency of the
service. ID at 10-11. The parties do not challenge these findings on review, and
we discern no reason to disturb them.

The agency failed to show that the administrative judge erred in mitigating the
penalty.
¶8 As to the penalty, the administrative judge correctly observed that, when all
of the agency’s charges are sustained, but, like here, some of the underlying
specifications are not sustained, the agency’s penalty determination is entitled to
deference and should be reviewed only to determine whether it is within the
parameters of reasonableness. ID at 26; Payne v. U.S. Postal Service,
72 M.S.P.R. 646, 650 (1996). In reviewing the agency’s choice of penalty to
determine whether it was within the parameters of reasonableness, the
administrative judge recognized the seriousness of the appellant’s misconduct and
the fact that, as a supervisor, the agency was entitled to hold her to a higher
standard of conduct. ID at 27; see Bowman v. Small Business Administration,
7

122 M.S.P.R. 217, ¶ 12 (2015) (observing that the Board has held that AWOL is a
serious offense that warrants a severe penalty and that agencies may hold
supervisors to a higher standard of conduct). The administrative judge also found
that the penalty was consistent with the agency’s table of penalties, which
authorizes a penalty of removal for a first offense of AWOL involving an absence
that exceeds 10 days without permission and without adequate justification. ID
at 27; IAF, Tab 5 at 22. Nevertheless, he determined that the appellant’s
post-removal medical evidence demonstrated that her medical conditions had
played a role in the absences at issue and that her cognitive functions had
significantly improved; thus, he determined that, under the circumstances, the
penalty of removal exceeded the tolerable limits of reasonableness. ID at 29; see
Bowman, 122 M.S.P.R. 217, ¶¶ 12-15 (finding a 30-day suspension was the
maximum reasonable penalty for a supervisor with over 20 years of service and a
prior leave-related disciplinary action whose medical condition played a role in
the absences that supported the agency’s AWOL charge).

The administrative judge correctly reviewed the reasonableness of
the penalty based on the appellant’s post-removal medical evidence.
¶9 The agency generally argues on review that the administrative judge
erroneously substituted his judgment for that of the agency. PFR File, Tab 1 at 4,
9-10. However, the administrative judge correctly observed that he must analyze
whether the penalty was within the tolerable limits of reasonableness based on the
new evidence the appellant submitted to the Board, and not based on the facts and
circumstances known to the deciding official at the time he made his decision to
remove the appellant. ID at 28; see Norris v. Securities and Exchange
Commission, 675 F.3d 1349, 1357 (Fed. Cir 2012) (finding that an arbitrator erred
by stating that the issue before him was whether the penalty was within the
tolerable limits of reasonableness based upon the facts and circumstances known
to the deciding official at the time).
8

¶10 The administrative judge determined that the deciding official ’s penalty
analysis may have been appropriate in finding that the appellant’s medical
condition, and the extent that she would recover and return to full function , was
not a substantial mitigating factor at the time of his decision. ID at 29;
Mingledough v. Department of Veterans Affairs, 88 M.S.P.R. 452, ¶ 12 (2001)
(finding that a medical condition was not a significant mitigating factor absent
evidence that the impairment can be remedied or controlled). He noted that, at
the time the agency charged the appellant with AWOL, she had exhausted all of
her leave, and it appeared to the agency that she may have been abusing leave
because, even though she insisted that she could not return to work, i.e., that her
absence was open-ended, there was no clear medical evidence suggesting she was
incapacitated to the point that she could not return to work. ID at 12 n.2, 16-17;
see Patterson v. Department of the Air Force, 74 M.S.P.R. 648, 652 (1997)
(finding that, when an employee has exhausted all available leave, an agency may
deny LWOP and place the employee on AWOL when there is no foreseeable end
to the employee’s absence and the absence is a burden to the agency).
¶11 Thus, the administrative judge did not mitigate the penalty based on any
alleged inadequacies in the deciding official’s penalty analysis. As discussed
below, the administrative judge instead found that the appellant’s post-removal
medical documentation and her testimony before him indicated that her absences
were related to her underlying mental conditions, and that she had sufficiently
recovered within a month of her removal to return to work. ID at 27, 29.

The administrative judge correctly found that the appellant’s
post-removal medical evidence provides the requisite link to
her absences.
¶12 Mitigation of the penalty is warranted when, as the administrative judge
found here, the medical evidence corroborates the appellant’s testimony that her
mental illness, in this case, cognitive issues caused by depression, anxiety, and
amnesia, played a role in her absence. ID at 27-28; Bowman, 122 M.S.P.R. 217,
9

¶ 14; see Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 136 (1997)
(finding that alleged stressful events did not constitute a mitigating factor when
the appellant failed to show how his misconduct was directly related to these
events).
¶13 The agency contends that the appellant’s post-removal medical evidence
failed to provide a link to the relevant period, i.e, the period that led to the
adverse action being taken, and instead shows that she improved after she was
removed. PFR File, Tab 1 at 15-16; see Bowman, 122 M.S.P.R. 217, ¶ 14 (where
proximity in time, testimony, or other evidence provides the requisite link to the
relevant period, the subsequent medical evidence can be very probative of a prior
medical condition). We disagree. The appellant’s post-removal medical evidence
consists of progress notes from her Speech Pathologist’s treatment of the
appellant over six appointments between September 27 and October 30, 2018.
IAF, Tab 27 at 4-8, Tab 28 at 4-11. Those dates include one appointment while
she was still employed by the agency, as the agency effected the appellant’s
removal on September 30, 2018. IAF, Tab 4 at 8, Tab 27 at 4-5. The remainder
of those appointments took place within the month immediately following the
appellant’s removal. IAF, Tab 27 at 6-8, Tab 28 at 4-11. The provider’s
September 27, 2018 progress note describes the chronology of the appellant’s
difficulties, which the appellant reportedly first noticed while she was still at
work, and specifically states that the appellant had been out since May 2018, “due
to her changes in cognition,” and that she continued to have memory and
problem-solving issues. IAF, Tab 27 at 4. The September 27, 2018 note also
states that the appellant’s “cognitive linguistic skills [were] making steady
gains,” and that the appellant was “showing readiness for vocational activities,”
which the provider found was “a marked improvement since her initial exam,” on
August 9, 2018. Id. at 4-5. Thus, the evidence overlaps with the appellant’s
removal, and it addresses the appellant’s mental condition in the period covered
by the AWOL charge. Id.; IAF, Tab 4 at 39-43.
10

¶14 In this regard, the administrative judge found that the appellant’s testimony
and the medical documentation in the record both supported the conclusion that
her absences were related to certain underlying medical conditions, including
depression, anxiety, and amnesia—conditions that were exacerbated by grief over
the death of her mother in November 2017 and the stress caused by having to
move and care for her elderly father. ID at 27; IAF, Tab 27 at 4-8, Tab 28
at 4-10. The agency has not provided a basis for disturbing the administrative
judge’s decision to credit the appellant’s testimony. T he administrative judge
held a hearing, and the Board must give deference to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
¶15 The agency also argues on review that the administrative judge gave the
appellant’s post-removal evidence too much weight. PFR File, Tab 1 at 15. The
agency rightly observes that Norris, 675 F.3d 1349, does not specify the weight to
be given to post-removal mitigating evidence. However, the agency has failed to
show that the administrative judge improperly weighed the relevant post -removal
medical evidence. In assessing the probative value of medical evidence, one must
consider the qualifications of the health care providers, their familiarity with the
appellant’s condition, and whether their opinions provide a reasoned explanation
for their findings as opposed to mere conclusory assertions. See Stevens v.
Department of the Army, 73 M.S.P.R. 619, 627 (1997).
¶16 Here, the medical provider’s opinions set forth reasoned a nd specific
explanations of the appellant’s medical conditions. IAF, Tab 27 at 4-8, Tab 28
at 4-11. Although the agency argues that the evidence in this case is effectively
meaningless because the medical provider told the agency that the appellant was
able to return to work prior to her being removed, PFR File, Tab 1 at 15, we do
not discern any inconsistencies in the medical provider’s opinions . Specifically,
11

the provider’s prognosis that the appellant could attempt a soft transition to work
earlier does not mean that she was incorrect that the appellant had progressed to
the point that she was ready to return to work when the medical provider
discharged the appellant on October 30, 2018. IAF, Tab 4 at 12-14, Tab 27
at 4-8, Tab 28 at 4-11.
¶17 The agency also questions the qualifications of the medical provider, a
Speech Pathologist, to give advice on the appellant’s “generalized anxiety
disorder” and “other amnesia.” PFR File, Tab 1 at 15. However, the record does
not reflect that the agency challenged or objected to the provider’s qualifications
below, and its unsupported challenge on review provides no substantive reason to
discount the Speech Pathologist’s assessment and diagnosis of the appellant. See
Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the
Board generally will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence). Moreover, the record
reflects that the appellant’s neurologist, who had diagnosed the appellant with
amnesia and was, with the assistance of a nurse practitioner, treating her for the
condition, had referred her to the Speech Pathologist for treatment. IAF, Tab 4
at 12-14, Tab 21 at 121, Tab 30 at 17. The record reflects that the Speech
Pathologist was treating the appellant for, among other things, memory loss,
which the administrative judge found was related to her absences. ID at 5, 9, 27;
IAF, Tab 4 at 12-14, Tab 27 at 4-8, Tab 28 at 4-11.
¶18 Based on the foregoing, we discern no basis for disturbing the
administrative judge’s finding that the provider’s findings, as set forth in the
appellant’s post-removal medical documentation and the appellant’s testimony
before him, both supported the conclusion that her absences were related to her
underlying medical conditions and that her impairment could be remedied or
controlled. ID at 27-28; IAF, Tab 27 at 4-12.
12

The administrative judge correctly considered the appellant’s
potential for rehabilitation based on her post-removal
medical evidence.
¶19 We similarly find unpersuasive the agency’s argument on review that the
deciding official correctly determined that the appellant’s potential for
rehabilitation was poor because she was likely to continue being AWOL. PFR
File, Tab 1 at 13-15. The agency contends in its petition for review that the
deciding official’s testimony that the appellant failed to submit justification to
excuse her absences did not indicate that he was unaware of her condition, and
that he carefully considered it in considering the reasonableness of the penalt y
and her potential for rehabilitation. Id. at 12-13; see Mingledough, 88 M.S.P.R.
452, ¶ 12 (finding that a medical condition was not a significant mitigating factor
when the potential for rehabilitation was poor).
¶20 However, the agency’s finding that the appellant’s potential for
rehabilitation was poor was based on the evidence, including the medical
documentation, that it had at the time of the appellant’s removal. We have
already determined that the administrative judge correctly reviewed the penalty
based on the appellant’s post-removal medical evidence—evidence the deciding
official could not have had when he made his decision to remove the appellant.
Norris, 675 F.3d at 1357 (finding that an arbitrator erred by stating that the issue
before him was whether the penalty was within the tolerable limits of
reasonableness based upon the facts and circumstances known to the d eciding
official at the time). Thus, by necessity, the appellant’s recovery from mental
conditions that were implicated in her AWOL similarly justifies the reassessment
of a determination that the appellant’s potential for rehabilitation was poor
because her absence appeared open-ended. Id.
¶21 Concerning other penalty factors, the agency argues that, by raising the
appellant’s 28 years of discipline-free Federal service, the administrative judge
appeared to “give the factor more weight than it was given by the deciding
13

official.” PFR File, Tab 1 at 13. We are not persuaded. In conducting his
penalty analysis, the administrative judge was required to determine whether the
penalty was within the parameters of reasonableness. Payne, 72 M.S.P.R. at 650
(finding that when all of the agency’s charges are sustained, but some of the
underlying specifications are not sustained, the agency’s penalty determination is
entitled to deference, and should be reviewed only to determine whether it is
within the parameters of reasonableness). The appellant’s length of service is a
pertinent part of that analysis, as is the fact that her service was discipline-free.
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981).

The appellant does not challenge the administrative judge’s findings that she
failed to establish that the agency denied her due process or discriminated against
her on the basis of her disability.
¶22 As noted above, the administrative judge found that the appellant failed to
prove that the agency denied her due process by considering ex parte information.
ID at 18-22. He found that the appellant established that the proposing official
and the deciding official engaged in ex parte communications after the appellant
responded to the notice of proposed removal. ID at 20. Nevertheless, he found
that the appellant failed to establish that the ex parte information involved, which
included correspondence between the proposing official and the appellant, and a
conversation between the proposing official and the deciding official to go
through all the documents relevant to the case, was so substantial and so likely to
cause prejudice as to rise to the level of a due process violation. ID at 21 ; see
Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir.
1999) (finding that “[o]nly ex parte communications that introduce new and
material information to the deciding official will violate the due process
guarantee of notice”). The appellant does not challenge this finding on review
and we discern no reason to disturb it.
¶23 The administrative judge also found that the appellant failed to show that
the agency discriminated against her on the basis of her disab ility. ID at 25-26.
14

He found that she established that she suffered from a disability, as the medical
documentation she submitted indicated that she suffered from depression, anxiety,
and amnesia, and that those conditions affected her attention, memory, and ability
to concentrate. ID at 25. Nevertheless, because the appellant’s medical
documentation at that time did not suggest that she needed an extended leave of
absence, and instead suggested that she should return to work, he determined that,
even if the appellant’s request for time off constituted a request for a reasonable
accommodation, her medical documentation did not support her request. ID
at 25-26. Thus, he found that the appellant failed to show that the agency denied
her a reasonable accommodation. ID at 26; see Bond v. Department of Energy,
82 M.S.P.R. 534, ¶ 23 (1999) (observing that the Board has found open-ended
latitude in leave and attendance matters constitutes an unduly burdensome
accommodation); Stevens, 73 M.S.P.R. at 628-29 (same). The appellant does not
challenge this finding on review and we discern no reason to disturb it.
¶24 Accordingly, we affirm the initial decision.

ORDER
¶25 We ORDER the agency to cancel the removal and substitute in its place a
30-day suspension without pay. See Kerr v. National Endowment for the Arts,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶26 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency ’s
efforts to calculate the amount of back pay, interest , and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
15

and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶27 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶28 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶29 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and do cumentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonab le attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
16

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 4
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 withi n 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 f or 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).

4
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.
17

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
18

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
19

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. 5 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 a t 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

5
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.
20

Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations

DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:

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

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

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***

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

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing
what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium,
etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the type of
leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to
be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required
data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment,
Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel
Operations at 504-255-4630.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9556393. Public record. Not legal advice.