Opinion

Velda Griffin v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Apr 25, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

VELDA M. GRIFFIN, DOCKET NUMBER

Appellant, PH-0752-17-0041-I-1

DEPARTMENT OF HOMELAND DATE: April 25, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeff T. Schrameck , Esquire, and Joel J. Kirkpatrick , Canton, Michigan, for

the appellant.

Ileana Gomez and Katerina Koutrobis , Boston, Massachusetts, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

sustained her removal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

find that the appellant has not proven her claims of harmful error and laches, or

that the agency knowingly and unjustifiably treated alleged comparator

employees differently, we AFFIRM the initial decision.

BACKGROUND

The appellant was employed as a GS-15 Supervisory Auditor, Field

Director and managed field offices in Philadelphia, Pennsylvania, and Newark,

New Jersey. Initial Appeal File (IAF), Tab 1 at 14, Tab 15 at 5. On May 16,

2016, the agency proposed her removal on the basis of the following charges:

(1) submission of improper claims for mileage reimbursements supported by

32 specifications from September 7, 2011, to September 27, 2012;

(2) unauthorized use of Government property for private gain because she

admitted that she used her Government-purchased parking pass (the pass) on

several occasions to avoid a heightened parking rate for her personal vehicle

(POV) when she exited after 6:00 p.m., and, on September 4 and 14, 2015, when

she used the pass to get her POV out of a garage in order to avoid the daily

parking fee; and (3) lack of candor when, during a November 10, 2015

investigatory interview, she stated that she did not use the pass to enter the garage

in her POV. IAF, Tab 7 at 43-50. The appellant responded both orally and in

writing. Id. at 21, 23-41. By letter dated September 26, 2016, the deciding

official sustained the charges and imposed the appellant’s removal. Id. at 17-20.

The appellant filed the instant appeal challenging her removal. IAF, Tab 1.

After conducting the appellant’s requested hearing, the administrative judge

sustained the removal. IAF, Tab 34, Initial Decision (ID). Specifically, he

sustained the charges, found nexus, and determined that the penalty did not

exceed the bounds of reasonableness. ID at 6-19.

The appellant has filed a petition for review, and the agency has responded

in opposition to her petition. Petition for Review (PFR) File, Tabs 1, 3. 2

DISCUSSION OF ARGUMENTS ON REVIEW

The agency proved its charges.

Charge 1: Submission of Improper Claims for Mileage

Reimbursements

In charge 1, the agency asserted that the appellant engaged in

32 specifications of misconduct by submitting improper claims for mileage

reimbursements from September 7, 2011, to September 27, 2012. IAF, Tab 7

at 43-47. Specifically, it asserted that, even though vehicle logs indicated that

her Government vehicle (GOV) was at her house and available for her use, she

used her POV and claimed the mileage rate applicable to POVs, which was higher

than that for GOVs. Id. It also asserted in some specifications that she indicated

on her travel vouchers that using her POV was advantageous to the Government,

she could not find the keys for the GOV, driving to get the keys would take too

much time, the GOV was unavailable, or she was trying to use available travel

funds at the end of the year. Id. at 44-47.

The administrative judge found that the agency proved nexus. ID at 14-15. The

appellant has not challenged this finding on review, and we find no reason to do so.

PFR File, Tab 1; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding

no reason to disturb the administrative judge’s findings when she considered the

evidence as a whole, drew appropriate inferences, and made reasoned conclusions on

issues of credibility).

The administrative judge sustained charge 1, finding that the appellant did

not cast any doubt on the evidence that, for each of the dates in question, the

GOV was available in her driveway, but she instead decided to use her POV and

claim the highest mileage reimbursement rate. ID at 8-11; IAF, Tab 7 at 88-93,

Tab 8 at 45-42, Tab 9 at 4-23, Tab 12 at 95-105. He did not credit her testimony

that, although the GOV was in her driveway, the items she would have needed to

use it, such as car keys, were in Philadelphia. ID at 9. Instead, he found that this

explanation was implausible. Id. He also found that her statement that she kept

the keys in Philadelphia because she feared theft from her home was

unbelievable. Id. Additionally, he did not credit the appellant’s assertion that

she was attempting to use up travel funds at the end of the year because this

testimony was contrary to her other testimony that she kept a GOV at her home to

save travel funds. ID at 10. Further, he found that her testimony that she used

her POV because she had already otherwise achieved her savings goals for the

office was not worthy of belief as it was counterintuitive. Id. He also determined

that the appellant’s claims that her supervisor previously had approved her

vouchers and that she had survived an audit were unpersuasive because her

supervisor only generally reviewed her vouchers and the audit did not review the

propriety of the underlying mileage rates claims. ID at 10-11.

The appellant asserts that she did not have a nefarious intent regarding the

misconduct outlined in charge 1. PFR File, Tab 1 at 18. The administrative

judge stated that the deciding official was too generous when he stated that the

appellant’s actions regarding charge 1 were not intentionally deceptive and that

she felt entitled to take certain liberties to compensate for her efforts and long

hours. ID at 11. However, deception was not a part of this charge. Thus, his

statement was not necessary to his finding sustaining the charge and her challenge

regarding intent does not provide a reason for disturbing the initial decision. See

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that

an adjudicatory error that is not prejudicial to a party’s substantive rights

provides no basis for reversal of an initial decision).

The appellant also asserts that her memory was not clear regarding this

charge because the agency questioned her in 2015 about matters that occurred in

2011 and 2012. PFR File, Tab 1 at 18. However, even accepting this argument

as true, her lack of memory does not mean that she did not commit the alleged

misconduct during the dates in question. The appellant’s remaining challenges to

the administrative judge’s decision to sustain charge 1, including that many days

she was unaware of whether the GOV vehicle had been checked out, she believed

that she was complying with instructions to use remaining travel funds for the

year, the administrative judge did not give proper weight to the fact that her

supervisor had approved her travel vouchers and they survived prior audits, there

had never been a problem with her vouchers prior to 2011, and an investigation in

2013 found nothing, constitute mere disagreement with the initial decision, and

thus, they do not provide a basis for disturbing it. PFR File, Tab 1 at 16-20; see

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

(1987) (finding no reason to disturb the administrative judge’s findings when she

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions). Accordingly, we agree with the administrative judge’s

decision to sustain charge 1. See, e.g., Quarters v. Department of Veterans

Affairs, 97 M.S.P.R. 511, ¶ 4 (2004) (finding that, although he asserted that he

pulled the wrong credit card from his wallet, because he admitted that he

purchased tires on his Government credit card, the charge of misuse of a

Government credit card was sustained); Quillen v. Department of the Treasury,

96 M.S.P.R. 154, ¶¶ 6-7 (2004) (sustaining the specification of misuse of

Government office equipment when the appellant used his agency computer to

support his commercial business), aff’d, 134 F. App’x 449 (Fed. Cir. 2005).

Charge 2: Unauthorized Use of Government Property for Private

Gain

In the second charge, the agency asserted that the appellant engaged in

unauthorized use of Government property with respect to the

Government-purchased parking pass. IAF, Tab 7 at 47. In specification 1, it

asserted that she admitted in a November 10, 2015 investigatory meeting that she

used the pass to get her personal vehicle out of a parking lot on several occasions

in order to avoid a heightened parking fee on those dates when she stayed in the

office after 6:00 p.m. IAF, Tab 7 at 47, Tab 12 at 108-09. Further, it asserted

that it never authorized her to use the pass in such a manner, and thus, she was

using the pass in an unauthorized manner for private gain. IAF, Tab 7 at 47. In

specifications 2 and 3, the agency asserted that, on September 4 and 14, 2015, the

appellant used the pass to get her personal vehicle out of the Philadelphia Parking

Authority Auto Park at Olde City, and that, because she was not authorized to use

the pass, she used Government property in an unauthorized way for private gain.

Id. The administrative judge sustained this charge, noting that the appellant

ultimately stipulated to all three of its specifications and did not provide a

justification for using the pass. ID at 11-13; IAF, Tab 12 at 108-09, Tab 25 at 7.

To the extent that the appellant attempts to challenge this charge again on

review on the basis of any alleged misunderstanding and lack of deceptive intent

during the agency’s interview or on the basis of her belief that she was entitled to

use the pass, we find that these arguments do not provide a reason for disturbing

the initial decision. PFR File, Tab 1 at 5-7; IAF, Tab 25 at 7. Specifically, the

Board has held that, generally, an agency is not required to prove intent to sustain

a charge of unauthorized use of Government property. See, e.g., Quarters,

97 M.S.P.R. 511, ¶ 4. Thus, the administrative judge properly sustained this

charge because the agency did not authorize the appellant to use the pass in such

a manner and she benefited monetarily by using it.

Charge 3: Lack of Candor

To prove a charge of lack of candor, an agency must demonstrate the

following: (1) the employee gave incorrect or incomplete information; and

(2) she did so knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R.

330, ¶ 17 (2016). In charge 3, the agency asserted that the appellant lacked

candor when, in a November 10, 2015 interview, she specifically denied using the

pass to park her POV at the Philadelphia Parking Authority Auto Park at Olde

City. IAF, Tab 7 at 47, Tab 12 at 108-10. The agency observed that records

indicated that she used the pass to enter the garage on September 4 and 14, 2015.

IAF, Tab 7 at 47, Tab 9 at 49-50, 106, Tab 10 at 53-54.

The administrative judge sustained this charge because he found that,

although the appellant stated that she did not recall using the pass to get her POV

out of the space, she did not dispute videotape evidence of her entering and

leaving the parking garage in her POV. ID at 13-14. He considered her claims

that she made the denials at the end of a day -long interview, that the investigator

did not ask her specifically about the two dates mentioned in the charge, and that

she emphasized that she readily admitted to using the pass to get her car out of a

garage on other occasions. ID at 13; IAF, Tab 12 at 109-11. However, he did not

credit her claim that she suffered a lapse in memory. ID at 13. He stated that it

was undisputed that she denied the conduct approximately 2 months after its

occurrence and she readily recalled using the pass after working late during the

same time period. 3 Id.; IAF, Tab 12 at 109. He also considered that the appellant

The administrative judge stated, “Given the short time between the actions and the

denial, I do credit any claim of a lapse in memory.” ID at 13 (emphasis added).

However, this appears to be an error as the sentence is contained in a paragraph

regarding those of the appellant’s allegations that he did not credit or that he found

unpersuasive. ID at 13-14. Thus, we have considered that the administrative judge did

not credit the appellant’s assertion regarding her lapse in memory and find that the

administrative judge’s typographical error is not prejudicial as it would not affect our

decision to sustain the charge. See Bivens v. Department of the Navy , 55 M.S.P.R. 662,

664, n.3 (1992) (finding that the administrative judge’s apparent typographical error in

stating two different amounts of attorney fees and reimbursable costs that he found

reasonable was inadvertent and did not affect the parties’ substantive rights).

reviewed her statement and made multiple changes after the interview had

concluded. ID at 13-14. Further, he found that the appellant readily admitted

using the pass to exit the garage when she worked late because she felt justified

in using it in that situation. Id. Thus, he found her argument concerning the

implausibility of admitting to using the pass in one situation and not admitting

her use in the other situation to be unpersuasive. Id.

The appellant asserts that the administrative judge erred in sustaining a

false statement charge because she did not have the intent to defraud, deceive, or

mislead the agency for her own personal gain. PFR File, Tab 1 at 5-6, 21-22.

Lack of candor and falsification are distinct charges. See Ludlum v. Department

of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002); O’Lague v. Department of

Veterans Affairs, 123 M.S.P.R. 340, ¶ 13 (2016), aff’d per curiam, 698 F. App’x

1034 (Fed. Cir. 2017). Whereas falsification “involves an affirmative

misrepresentation, and requires intent to deceive,” lack of candor, by contrast, “is

a broader and more flexible concept whose contours and elements depend upon

the particular context and conduct involved.” Ludlum, 278 F.3d at 1284; see

O’Lague, 123 M.S.P.R. 340, ¶ 13. The agency did not charge the appellant with

falsification, and thus, her argument that she did not have the intent to defraud,

deceive, or mislead the agency for her own personal gain does not provide a basis

to disturb the administrative judge’s findings.

Next, the appellant argues that her lack of recollection as to whether she

used the pass to place her POV in the garage does not establish the necessary

intent to prove the charge. PFR File, Tab 1 at 7. Although an agency need not

prove an intent to deceive in connection with a lack of candor charge, it

nonetheless must show that the misrepresentation or omission was made

knowingly. O’Lague, 123 M.S.P.R. 340, ¶ 13. The administrative judge

considered the appellant’s argument that she did not recall using the pass and did

not credit it. ID at 13. The Board must defer to an administrative judge’s

determinations when they are “necessarily intertwined” with an analysis of a

witness’s demeanor. See Purifoy v. Department of Veterans Affairs, 838 F.3d

1367, 1373 (Fed. Cir. 2016). Here, the administrative judge stated that he had the

opportunity to observe each witness and carefully considered their demeanor. ID

at 6 (citing Hamilton v. Department of Veterans Affairs, 115 M.S.P.R. 673, ¶ 27

(2011)). Accordingly, we defer to his determination to not credit the appellant’s

claim of lack of recollection, which is implicitly based upon an analysis of her

demeanor during her testimony. Thus, this argument does not support a finding

that the agency failed to establish the necessary intent to prove the charge.

The appellant also asserts that she rightly or wrongly believed that she was

entitled to use the pass as this was “minimal use.” PFR File, Tab 1 at 6.

However, she could have stated that she used the pass and asserted this argument

during her interview, but she did not do so. IAF, Tab 12 at 108. Thus, her

argument does not change the fact that she gave inaccurate or incomplete

information as to her usage of the pass and did so knowingly. See Fargnoli,

123 M.S.P.R. 330, ¶ 17.

The appellant’s remaining arguments, including that the investigators

engaged in a “gotcha” investigatory technique, it defies common sense that she

admitted using the pass to exit the parking garage but did not admit using the pass

to enter, she was interviewed for 8 hours and she provided the answer about using

the pass at the end of the interview, and she and the interviewer were not on the

same page, constitute mere disagreement with the initial decision and do not

provide a basis for disturbing it. PFR File, Tab 1 at 6-7; see Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the

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

drew appropriate inferences, and made reasoned conclusions on issues of

credibility). Thus, we find that the agency has proven the lack of candor charge

on the basis that the appellant knowingly provided inaccurate or incomplete

information regarding her usage of the pass. See Little v. Department of

Transportation, 112 M.S.P.R. 224, ¶ 20 (2009) (finding that the appellant lacked

candor when, during an official inquiry, he claimed that he did not sign in to work

and then leave, when the underlying misconduct of signing in and leaving was

sustained).

We modify the initial decision to find that the appellant has not established

harmful error or laches.

The appellant challenges the agency’s reliance upon a 2013 investigation

and its interviewing her about stale information from that investigation despite

the fact that the investigation did not originally lead to any charges against her.

PFR File, Tab 1 at 20. In 2013, the agency’s Office of Internal Affairs

investigated the appellant on the basis of allegations such as misuse of a GOV

and time card fraud. IAF, Tab 28 at 5-14. The agency took no action after that

investigation. Another investigation that the agency conducted in 2015 formed

the basis of the charges at issue. ID at 7; IAF, Tab 7 at 53-63. The

administrative judge found that this chronology did not constitute “agency

misconduct.” ID at 7. Specifically, he found that the fact that only a small

portion of the total allegations led to charges against the appellant could be

attributed to caution on the part of the agency and that the charges that the agency

ultimately brought were readily proven. Id. We modify the initial decision to

consider the appellant’s arguments in the context of claims of harmful error and

laches and find that she has not proven these defenses.

Under the harmful error standard, reversal is only warranted if the

appellant proves, by preponderant evidence, that there was a procedural error that

was likely to have caused the agency to reach a conclusion different from the one

it would have reached in the absence or cure of the error. See Holton v.

Department of the Navy, 123 M.S.P.R. 688, ¶ 11 (2016), aff’d, 884 F.3d 1142

(Fed. Cir. 2018); 5 C.F.R. §§ 1201.4(r), 1201.56(b)(2)(i)(C). A delay in

investigating allegations or initiating disciplinary action may constitute

procedural error if a law, regulation, or agency policy requires that allegations be

investigated and/or disciplinary action be taken within a certain time period. See,

e.g., Salter v. Department of the Treasury, 92 M.S.P.R. 355, ¶¶ 8-9 (2002)

(finding that the agency committed procedural error when there was a 13-month

delay between the issuance of the proposal to remove and the decision to demote

as this contravened 5 U.S.C. § 4303(b)(2), (c)(1)). However, the appellant has

not pointed to any such law, regulation, or agency policy. Thus, we find that she

has not proven harmful error.

The Board also has considered “stale charge” claims as raising the

equitable defense of laches, which bars an action when an unreasonable delay in

bringing it prejudiced the subject of the action. See, e.g., Kirkland v. Department

of Homeland Security, 119 M.S.P.R. 74, ¶ 23 (2013). To establish the defense of

laches, an appellant must prove both that the delay in bringing the action was

unreasonable and that she was materially prejudiced by the delay. Id. The

appellant asserts that the agency could have charged her after the first

investigation when she had a clearer memory of the underlying misconduct from

charge 1 that occurred from 2011 to 2012. PFR File, Tab 1 at 20. However, we

agree with the administrative judge that the agency based the charge upon

undisputed documentary evidence, including reimbursement requests and the

vehicle logs. ID at 8; IAF, Tab 7 at 87-93, 125-30, Tab 8 at 4-52, Tab 9 at 4-29.

The appellant has not asserted that this evidence was unavailable. She has

otherwise not demonstrated that she was materially prejudiced, and there is no

evidence that she was unable to defend against the charges on the basis of any

delay. Thus, she has failed to demonstrate laches. See Kirkland, 119 M.S.P.R.

74, ¶ 23 (finding that the appellant did not prove laches when she failed to show

that the agency’s 14-month delay prejudiced her ability to defend against the

specification in any manner, much less materially prejudiced her); Hidalgo v.

Department of Justice, 93 M.S.P.R. 645, ¶ 19 (2003) (finding that the appellant

failed to demonstrate that the agency’s charge should be barred by laches when he

did not even allege that the agency’s delay affected his ability to defend himself).

The removal penalty did not exceed the bounds of reasonableness.

The appellant challenges the penalty determination on the basis that it is

not consistent with the Douglas factors or the penalty imposed upon other

employees, not in accordance with law, and otherwise unsupported. PFR File,

Tab 1 at 8. When the Board sustains an agency’s charge, it will defer to the

agency’s penalty determination unless the penalty exceeds the range of allowable

punishment specified by statute or regulation, or unless the penalty is so harsh

and unconscionably disproportionate to the offense that it amounts to an abuse of

discretion. See Saiz v. Department of the Navy, 122 M.S.P.R. 521, ¶ 5 (2015).

The administrative judge found that the agency’s penalty was reasonable. ID

at 15-19. He considered that agencies could hold supervisors to a higher standard

and that the charges of unauthorized use of Government property for personal

gain and lack of candor are serious. ID at 15-16. Further, he cited the deciding

official’s testimony that the penalty was consistent with the agency’s table of

penalties. ID at 16.

According to the administrative judge, in making her penalty

determination, the deciding official was aware of some potential comparators, but

not of others. ID at 16. These previously unknown comparators differed from

the appellant in terms of their chains of command and duties, among other

respects. ID at 16; IAF, Tab 25 at 27-64. The administrative judge found, based

on the deciding official’s testimony, that she would have reached the same result

despite these additional alleged comparators because, unlike them, the appellant

effectively ran her own office. ID at 16-17.

The administrative judge did not credit the appellant’s arguments that her

actions were unintentional or that the amounts involved were de minimis. ID

at 17-18. Further, he focused on the deciding official’s testimony that she lost

trust in the appellant and that, considering the nature of her position, it would be

difficult to monitor her rehabilitation. ID at 18-19.

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981), the

Board articulated a nonexhaustive list of 12 factors to be considered when

evaluating the penalty to be imposed for an act of misconduct. Among those

factors, the agency should consider the “consistency of the penalty with those

imposed upon other employees for the same or similar offenses.” Id. The

appellant argues that the deciding official did not review any comparator

evidence, did not request to see any such evidence, and may not have even known

that there was such evidence available. PFR File, Tab 1 at 23-24. Thus, she

asserts that the deciding official can only speculate as to her decision had she

reviewed any alleged comparators. Id. at 24.

After the initial decision was issued in this case, the Board issued Singh v.

U.S. Postal Service, 2022 MSPB 15. In that decision, the Board clarified the

analysis to undertake when an appellant makes a disparate penalty claim. In

assessing the agency’s penalty determination, the relevant inquiry is whether the

agency knowingly and unjustifiably treated employees differently. Id., ¶ 14; see

Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988)

(providing that a person does not have a legally protected interest in the evenness

of a misconduct penalty assessed on him compared to that assessed on others

unless employees are knowingly treated differently “in a way not justified by the

facts, and intentionally for reasons other than the efficiency of the service”).

Further, while the universe of potential comparators will vary from case to case,

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

proper comparators. Singh, 2022 MSPB 15, ¶ 13. To the extent that the appellant

presented valid comparators during the proceedings below that were not

previously considered by the deciding official, the administrative judge credited

the deciding official’s testimony that she would still have imposed a harsher

penalty on the appellant because of her greater level of independence. ID

at 16-17. In light of Singh, we vacate this finding as unnecessary. Instead, we

find that because the deciding official was not aware of the appellant’s alleged

potential comparators at the time she made her decision, she did not knowingly

and unjustifiably treat the appellant differently. 4 See Singh, 2022 MSPB 15, ¶ 14.

We have considered the appellant’s other arguments, including that the

agency did not adequately consider alternative sanctions, the agency had never

accused her of misconduct prior to that at issue here, she never had any negative

issues related to her duties and responsibilities as an agency employee or

supervisor, she had over 28 years of service, she received awards in the agency

and community, and the agency did not consider her potential for rehabilitation.

PFR File, Tab 1 at 8-12, 28. However, we agree with the deciding official that

the appellant’s misconduct was serious, particularly considering that she was a

Field Director who managed two Field Offices, she received reimbursements to

which she was not entitled, and her actions created an appearance of a conflict of

interest. IAF, Tab 7 at 17-18; see Ellis v. Department of Defense, 114 M.S.P.R.

407, ¶¶ 2, 11 (2010) (finding that the appellant’s actions, which included

misusing Government stationery in an attempt to vacate a rental property early,

constituted serious misconduct); Jackson v. Department of the Army, 99 M.S.P.R.

604, ¶¶ 2, 6 (2005) (observing that lack of candor is a serious offense and that

removal was a reasonable penalty for, as relevant here, the appellant’s false

denial of her knowledge that officers under her supervisor had failed their firearm

tests).

Further, the Board has consistently stated that an agency is entitled to hold

a supervisor to a higher standard of conduct compared to a nonsupervisory

To the extent that the appellant asserts that the agency violated her right to due

process by failing to review all relevant comparators, we find no such violation. PFR

File, Tab 1 at 23-24, 27-28. Procedural due process guarantees are not met if the

employee has notice of only certain charges or portions of the evidence and the deciding

official considers new and material information; therefore, it is constitutionally

impermissible to allow a deciding official to receive additional material information

that may undermine the objectivity required to protect the fairness of the process. See

Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375-76 (Fed. Cir.

1999). The appellant does not assert that the deciding official denied her the

information that she reviewed in making her penalty determination, and thus, this does

not constitute a due process violation.

employee because supervisors occupy a position of trust and responsibility. See,

e.g., Hill v. Department of the Army, 120 M.S.P.R. 340, ¶ 15 (2013).

Accordingly, we find that the agency did not abuse its discretion in imposing the

removal penalty on the basis of the sustained charges of submission of improper

claims for mileage reimbursements, unauthorized use of Government property for

private gain, and lack of candor. 5

In sum, we find that the agency has proven its charges, the appellant has

failed to demonstrate harmful error or laches, and the penalty does not exceed the

bounds of reasonableness. Thus, we affirm the initial decision and sustain the

removal.

NOTICE OF APPEAL RIGHTS 6

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

The appellant asserts that the administrative judge ignored significant evidence that

supported a finding that the agency did not prove its charges and that, even if it did

prove any of the charges, the penalty should be mitigated. PFR File, Tab 1 at 28. An

administrative judge’s failure to mention all of the evidence does not mean that he

improperly failed to consider it. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365,

¶ 15 (2016). As a result, this argument does not provide a reason for disturbing the

initial decision.

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.

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

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

chosen forum.

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

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

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

should contact that forum for more information.

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

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

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

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. 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).

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

following address: