The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCHEKILA S. WILLIAMS, DOCKET NUMBER
Appellant, DA-0714-18-0398-I-1
v.
DEPARTMENT OF VETERANS DATE: May 17, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Edward Larvadain, Jr. , Alexandria, Louisiana, for the appellant.
Alonda Price , Garland, Texas, for the agency.
Cecilia G. Isenberg , Garland, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal pursuant to 38 U.S.C. § 714 based on a charge of Absence
Without Leave (AWOL). For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appeal to the Dallas Regional Office for further adjudication in accordance with
this Remand Order.
BACKGROUND
Effective May 24, 2018, the agency removed the appellant from her GS-06
Medical Support Assistant position pursuant to the Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017 (VA
Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat 862, 869-73 (codified
as amended at 38 U.S.C. § 714). Initial Appeal File (IAF), Tab 10 at 9, 13-20.
The action was based on a single charge of “Unauthorized Absence (AWOL)”
with 23 underlying specifications relating to absences between December 2017
and March 2018. Id. at 16-19. The appellant subsequently filed a Board appeal
challenging her removal and requested a hearing on her appeal. IAF, Tab 1 at 3.
She did not raise any affirmative defenses. IAF, Tab 1 at 2-7, Tab 11 at 2 n.1. In
an order on timeliness, the administrative judge noted that the appeal appeared to
have been filed 1 day late, and he provided the appellant with the opportunity to
provide evidence and/or argument showing that her appeal was timely filed or
that her delay in filing her appeal should be excused. IAF, Tab 3.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming her removal. IAF, Tab 17, Initial Decision
(ID). Regarding the timeliness of the appeal, he found that the doctrine of
equitable tolling applied because the agency had provided the appellant with
improper appeal rights information in its decision letter. ID at 1 n.1. He further
found that, as to each specification, the agency proved by substantial evidence
that the appellant’s absences were not authorized or her requests for leave were
properly denied. ID at 4-5. He further found that the agency complied with the
Family and Medical Leave Act of 1993 (FMLA) as a part of its burden of proving
the AWOL charge. ID at 5. Accordingly, the administrative judge sustained the
agency’s charge. Id. The administrative judge then found that he had no
3
authority to mitigate the penalty for an action taken under 38 U.S.C. § 714. ID
at 6. Consequently, he affirmed the agency removal action. Id.
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appeal was untimely filed.
38 U.S.C. § 714(c)(4)(B) provides that a covered individual removed
pursuant to section 714 may file a Board appeal challenging her removal “not
later than 10 business days after the date of such removal.” See Ledbetter v.
Department of Veterans Affairs, 2022 MSPB 41, ¶¶ 6-7. Here, it is undisputed
that the appellant was removed from her position, pursuant to 38 U.S.C. § 714,
effective May 24, 2018. IAF, Tab 10 at 13. Accordingly, her appeal was due no
more than 10 business days later, on June 8, 2018. 2 The appellant’s Board appeal
challenging her removal was postmarked June 13, 2018. IAF, Tab 1 at 1, 33; see
5 C.F.R. § 1201.4(l) (stating that the date of filing by mail is determined by the
postmark date). Consequently, her appeal was untimely filed by 3 calendar days.
We ultimately agree with the administrative judge’s finding that the statutory
filing deadline should be equitably tolled based on the facts in this case but
supplement his reasoning.
Although the administrative judge correctly concluded that the appellant’s
Board appeal was untimely filed, he nevertheless determined that the doctrine of
equitable tolling should be applied to extend the deadline, determining that the
agency induced the appellant into allowing the Board filing deadline to pass by
providing her with incorrect information. ID at 1 n.1; IAF, Tab 15 at 4-6 (citing
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990) (concluding
that if the Federal Government has waived its immunity, there is a presumption
2
In calculating this deadline, we excluded the Memorial Day Federal holiday, which
was observed on Monday, May 28, 2018. See Ledbetter, 2022 MSPB 41, ¶ 7 & n.2
(excluding weekends and holidays when calculating the 10-business-day deadline under
section 714(c)(4)(B)).
4
favoring the application of equitable tolling)). Specifically, the administrative
judge noted that in the May 17, 2018 removal decision letter, the agency provided
incorrect appeal rights information informing the appellant that she could file an
appeal with the Board challenging her removal at any time after she received the
decision letter, “but not later than 30 calendar days after the separation has been
effected, or 30 calendar days after the date of [] your receipt of this decision,
whichever is later.” IAF, Tab 10 at 14, Tab 15 at 5-6. Because the agency
provided this incorrect appeal rights information and the appellant relied on that
information by filing her Board appeal after the statutory 10-business-day filing
deadline, the administrative judge concluded that the appellant was “induced or
tricked” by the agency into allowing the filing deadline to pass. ID at 6.
Consequently, he determined that equitable tolling should be applied to extend
the Board filing deadline. ID at 6.
After the initial decision was issued in this case, the Board issued its
decision in Hemann v. Department of Veterans Affairs , 2022 MSPB 46. The
appellant in Hemann was removed pursuant to section 714, and the decision
notice informed him of his right to appeal the removal to the Board “at any time”
after he received the decision notice, but “not later than 30 calendar days” after
the separation was effected or his receipt of the decision, whichever was later.
Hemann, 2022 MSPB 46, ¶ 2. The appellant filed his Board appeal more than
10 business days, but less than 30 days, after the effective date of the removal
action and the agency moved to dismiss the appeal as untimely filed. Id.,
¶¶ 3, 20.
Citing its prior decision in Ledbetter, 2022 MSPB 41, ¶ 8, the Board
acknowledged that the doctrine of equitable tolling may be available under
certain circumstances to toll a statutory deadline in an untimely appeal. Hemann,
2022 MSPB 46, ¶ 9. The Board next considered the limited circumstances in
which equitable tolling may be invoked to excuse an untimely filed lawsuit
against the Government. Id., ¶ 11. The Board highlighted two such
5
circumstances, the first, when an appellant has “actively pursued his judicial
remedies by filing a defective pleading during the statutory period,” and the
second, when an appellant “has been induced or tricked by his adversary’s
misconduct into allowing the filing deadline to pass.” Id. (quoting Irwin,
498 U.S. at 96). After reviewing precedent from the U.S. Court of Appeals for
the Federal Circuit (Federal Circuit) and the U.S. Supreme Court applying
equitable tolling in these circumstances, the Board determined that the agency’s
incorrect notice to the appellant that he had 30 calendar days to challenge his
removal to the Board mislead him into believing that a 30-day filing period was
permitted, and so the agency had “induced or tricked” him into allowing the
statutorily required 10-business-day filing deadline to pass. Id., ¶ 19.
Consequently, the Board concluded that equitable tolling was warranted. Id. The
Board further concluded that because it was undisputed that the appellant had
filed his Board appeal within the 30-day period provided to him by the agency, he
had acted with due diligence within the filing period that he reasonably believed
to be correct. Id., ¶ 20.
The factual circumstances in Hemann are nearly identical to those at issue
in this appeal. As in Hemann, the appellant here was “induced or tricked” by the
incorrect 30-day filing deadline provided by the agency, and the appellant acted
with due diligence by filing her Board appeal within the filing period she believed
was applicable based on the information provided to her by the agency. 3
Consequently, we agree with the administrative judge’s finding that equitable
tolling should apply to extend the filing deadline for the appellant’s untimely
appeal of her removal pursuant to 38 U.S.C. § 714, based on the specific facts of
this case.
3
Also, as in Hemann, it is of no consequence that the appellant here was represented by
legal counsel during the course of her appeal. IAF, Tab 1 at 4; see Hemann,
2022 MSPB 46, ¶¶ 12, 19.
6
The appellant has failed to provide a basis for disturbing the administrative
judge’s finding that the agency proved its charge by substantial evidence.
In an appeal of an action taken pursuant to 38 U.S.C. § 714, the agency is
required to prove its charge by substantial evidence. 4 See Rodriguez v.
Department of Veterans Affairs, 8 F.4th 1290, 1298 (Fed. Cir. 2021). 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. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 28 n.5
(2015), overruled in part on other grounds by Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶¶ 23-25. The administrative judge found that the
appellant was absent for all the dates for which she was charged, and the
appellant does not contest this finding on review. ID at 3-4. Moreover, the
appellant does not appear to dispute the administrative judge’s finding that the
agency did not authorize those absences. ID at 4-5. Rather, she contends that
nobody testified that she did not have leave to cover her absences and that there
was no testimony explaining the agency’s documentary evidence. PFR File,
Tab 1 at 3.
The appellant’s contention fails to provide a basis for review. When an
employee has requested leave to cover her absences, an AWOL charge will be
sustained only if the agency establishes that the appellant’s requests were
properly denied. Savage, 122 M.S.P.R. 612, ¶ 28. Moreover, if the employee
requested leave without pay (LWOP) for the periods when she was placed in an
AWOL status, the Board will examine the record as a whole to determine if the
denial of LWOP was reasonable under the circumstances. Id.
Here, as noted by the administrative judge, the appellant testified that,
during the time periods at issue in this appeal, she usually had very little accrued
leave. ID at 5; Hearing Recording (HR) (testimony of the appellant). The
4
Substantial evidence is “[t]he degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p).
7
administrative judge accordingly found that the agency established that the
appellant did not have sufficient leave to cover her substantial hours of absences
—129.75 hours. ID at 4. Thus, contrary to the appellant’s argument on review,
there was testimony establishing that she did not have sufficient leave to cover
her absences.
To the extent the appellant is alleging that the agency should have granted
her LWOP to cover her absences, the administrative judge addressed this
argument in the initial decision. ID at 4-5. The administrative judge
acknowledged the appellant’s testimony that the vast majority of her absences
were directly related to her children’s medical conditions, and not to any
condition of her own. ID at 4. As previously noted, the administrative judge
considered whether the agency complied with the requirements of the FMLA, and
found that it had. Id. at 5. In reaching this conclusion, he noted that the
appellant admitted that she had not requested FMLA-based leave for any period
of absence at issue in this appeal, and that the agency had granted her
FMLA-based leave in the past. Id. The appellant has provided no basis for
disturbing the administrative judge’s well-reasoned finding that, under these
circumstances, the agency’s denial of the appellant’s requests for LWOP did not
constitute an abuse of discretion. ID at 5; 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 where the administrative judge considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions); Broughton
v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987)
(same). Accordingly, we find that the administrative judge properly determined
that the agency proved its charge by substantial evidence.
8
Remand of the appeal is necessary for the administrative judge to provide the
parties with an opportunity to present evidence and argument regarding whether
the agency’s error in sustaining the removal based on substantial evidence harmed
the appellant.
As previously discussed, the administrative judge concluded in the initial
decision that the agency proved each specification of the AWOL charge by
substantial evidence and consequently determined that the agency met its burden
of proving the charge. ID at 3-5. After the initial decision in this case was
issued, the Federal Circuit issued its decision in Rodriguez, 8 F.4th at 1296-1301,
in which it determined that the agency erred by applying a substantial evidence
burden of proof to its internal review of a disciplinary action taken under
38 U.S.C. § 714. The court in Rodriguez found that substantial evidence is the
standard of review to be applied by the Board, not the agency, and that an
agency’s deciding official must “determine[]” whether “the performance or
misconduct . . . warrants” the action at issue by applying a preponderance of the
evidence burden of proof. 5 Id. at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)).
The Board subsequently issued Semenov v. Department of Veterans Affairs,
2023 MSPB 16, ¶¶ 23-24, in which it found that it was appropriate to apply the
harmful error standard from 5 U.S.C. § 7701(c)(2) to an agency’s improper
application of the substantial evidence standard to its review of proposed actions
taken under 38 U.S.C. § 714. The Board also held that the Federal Circuit’s
holding in Rodriguez applies to all pending cases, regardless of when the events
at issue took place. Semenov, 2023 MSPB 16, ¶ 22.
In the instant appeal, the deciding official noted in the decision letter that
the AWOL charge was supported by “substantial evidence” in sustaining the
appellant’s removal. IAF, Tab 10 at 13. During the hearing, the agency did not
elicit any further testimony concerning the burden of proof the deciding official
applied in assessing the charge, and the deciding official did not offer any
5
Preponderance of the evidence is “[t]he degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
9
additional testimony indicating that he applied anything other than a substantial
evidence burden of proof in sustaining the removal. IAF, Tab 16, HR
at 37:30-42:30 (testimony of the deciding official). The administrative judge and
the parties did not have the benefit of Rodriguez, and they were therefore unable
to address its impact on this appeal. Accordingly, we remand this case for further
adjudication to address whether the agency’s apparent error in applying the
substantial evidence standard of proof was harmful. See Semenov, 2023 MSPB
16, ¶ 22. On remand, the administrative judge shall provide the parties with an
opportunity to present additional evidence and argument, including holding a
supplemental hearing if requested by the appellant, addressing whether the
agency’s use of the substantial evidence standard in the removal decision
constituted harmful error.
On remand, the administrative judge should apply the Douglas factors and review
the agency’s penalty determination.
After the initial decision was issued in this case, the Federal Circuit issued
its decision in Connor v. Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir.
2021). In Connor, the Federal Circuit determined that the agency and the Board
must consider and apply the nonexhaustive factors set forth in Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), in its review of an
agency’s penalty selection under 38 U.S.C. § 714. Connor, 8 F.4th at 1325-26;
see Semenov, 2023 MSPB 16, ¶¶ 44-50 (stating that, consistent with the Federal
Circuit’s decision in Connor, the agency and the Board must apply the Douglas
factors in reviewing the penalty in an action taken under 38 U.S.C. § 714). The
court held that, although section 714 precludes the Board from mitigating the
agency’s chosen penalty, “[i]t does not alter the penalty review with respect to
the Douglas factors” and that, although the Board cannot mitigate the penalty, “if
the Board determines that the [agency] failed to consider the Douglas factors or
that the chosen penalty is unreasonable, the Board must remand to the [agency]
for a redetermination of the penalty.” Connor, 8 F.4th at 1326-27 (citing Brenner
10
v. Department of Veterans Affairs, 990 F.3d 1313, 1325 (Fed. Cir. 2021)
(explaining that, “if the [Board] concludes that the [agency’s] removal decision is
unsupported by substantial evidence, the [Board] should remand to the [agency]
for further proceedings”)).
Here, the administrative judge did not have the benefit of the Connor or
Semenov decisions. In the absence of this guidance, he concluded that the Board
lacked mitigation authority in actions taken under 38 U.S.C. § 714 and
specifically concluded that the “reasonableness of an imposed penalty, along with
a consideration of mitigating and aggravating factors under Douglas v. Veterans
Administration, 5 M.S.P.R. 280 (1981), is immaterial.” 6 ID at 6. Moreover, in
the removal decision letter, the deciding official did not reference the Board’s
decision in Douglas, cite to the Douglas factors, or otherwise indicate that he
considered any mitigating factors in sustaining the removal action. IAF, Tab 10
at 13-15. Finally, during the hearing, the deciding official did not offer any
testimony concerning whether he considered the Douglas factors or any
mitigating considerations in deciding to sustain the removal penalty, and the
parties did not elicit any testimony on the issue. HR at 37:30-42:30 (testimony of
the deciding official).
Thus, the record is unclear as to whether the agency properly considered
the Douglas factors in deciding to remove the appellant. The administrative
judge and the parties did not have the benefit of Connor, and therefore were
unable to address its impact on this appeal. Consequently, on remand, the
administrative judge should permit the parties to submit additional evidence and
argument on the penalty issue, again holding a supplemental hearing if requested
by the appellant. See Semenov, 2023 MSPB 16, ¶ 50. In reviewing the penalty,
6
Despite this finding, it appears that the administrative judge identified potential
mitigating factors, such as the fact that the appellant’s children had significant medical
conditions that required her attention and frequent absences, but nevertheless
determined that he lacked the authority to mitigate the agency’s chosen decision on that
basis. ID at 6.
11
the administrative judge should determine whether the agency proved by
substantial evidence that it properly applied the Douglas factors and whether the
agency’s penalty selection was reasonable and, if not, he should remand the
appellant’s removal to the agency for a new decision on the appropriate penalty.
Id. (citing Connor, 8 F.4th at 1326-27; Sayers, 954 F.3d 1370, 1375-76, 1379
(Fed. Cir. 2020)).
ORDER
For the reasons discussed above, we remand this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order. 7
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.