Jose Rosario-Fabregas v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE E. ROSARIO-FABREGAS, DOCKET NUMBER
Appellant, NY-0752-18-0221-I-1
v.
DEPARTMENT OF THE ARMY, DATE: June 15, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jose E. Rosario-Fabregas, San Juan, Puerto Rico, pro se.
Elizabeth Moseley, Jacksonville, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which sustained the appellant’s
removal. For the reasons discussed below, we DENY the appellant’s petition for
review and the agency’s cross petition for review. We AFFIRM the initial
decision, AS MODIFIED to find that the agency proved its insubordination
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
charge and that the insubordination charge supports the appellant’s removal, and
to expand upon the administrative judge’s determination that the appellant failed
to prove any of his affirmative defenses.
BACKGROUND
¶2 The appellant most recently held a GS-12 Biologist position in the agency’s
U.S. Army Corp of Engineers, stationed in San Juan, Puerto Rico. Initial Appeal
File (IAF), Tab 1 at 1, Tab 5 at 6. In February 2010, the agency removed him for
misconduct, but the Board reversed on due process grounds in November 2011.
Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶ 2 (2015),
aff’d, 833 F.3d 1342 (Fed. Cir. 2016). The agency cancelled the appellant’s
removal and restored him to the employment rolls. Id.; Rosario-Fabregas v.
Department of the Army, MSPB Docket No. NY-0752-10-0127-C-1, Compliance
File, Tab 6 at 7, 15.
¶3 Less than a month after the Board issued its decision reversing the
appellant’s removal, he submitted a letter to the agency from his treating
psychiatrist, asking that the agency excuse him from work un til January 2012.
Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 3; Rosario-Fabregas v. Department of the
Army, MSPB Docket No. NY-0752-13-0167-I-1, Initial Appeal File (0167 IAF),
Tab 11, Part 1 at 17 of 58. This return-to-work date was continually extended,
first at the appellant’s behest, and then based on the agency’s demands for a
medical release. Rosario-Fabregas, 122 M.S.P.R. 468, ¶¶ 3-5. In
November 2012, the appellant provided a more detailed medical assessment . Id.,
¶ 5. The following day, however, the agency proposed the appellant’s removal
based on the same charges underlying the first removal action, and it placed him
on paid administrative leave. 2 Id., ¶ 5. The agency effectuated his removal in
February 2013. Id.2
The appellant filed an appeal with the Board alleging that his absence between
December 2011 and November 2012 was a constructive suspension. Rosario-Fabregas,
3
¶4 On appeal of his second removal action, the administrative judge sustained
the agency’s conduct unbecoming, inappropriate use of official time, and
inappropriate use of Government property charges, but not its insubordination
charge. Rosario-Fabregas v. Department of the Army, MSPB Docket No. NY-
0752-13-0142-I-2, Final Order, ¶¶ 2-3 (July 1, 2016). The administrative judge
mitigated the second removal action to a 30-day suspension, and the Board
affirmed in July 2016. Id., ¶¶ 1, 48. Notably, the Board stated that mitigation of
the penalty was warranted because, inter alia, the appellant had no prior discipline
and the agency’s most serious charge—insubordination—was not sustained. Id.,
¶¶ 44, 48.
¶5 Although the administrative judge had ordered interim relief from the
second removal action, the agency placed the appellant on paid administrative
leave instead of returning him to the workplace pursuant to 5 U.S.C.
§ 7701(b)(2)(A)(ii)(II). Rosario-Fabregas, MSPB Docket No. NY-0752-13-
0142-I-2, Petition for Review File, Tab 4 at 27-28. But after receiving the
Board’s final decision, the agency notified the appellant that his administrative
leave would end, and he would be returned to duty. IAF, Tab 9 at 74 -75. The
events that followed culminated with the agency’s third attempted removal of the
appellant, which is the matter before us in the instant appeal.
¶6 The agency ordered the appellant to provide a medical release prior to his
return-to-work date. Id. at 74. The parties subsequently agreed that the appellant
would first serve his 30-day suspension and his return-to-work date would be
September 6, 2016. Id. at 51, 69. A week before that scheduled return, the
agency reminded the appellant that he needed to provide a medical release before
returning to duty. Id. at 55. When his scheduled return-to-duty date arrived, the
appellant began requesting sick and annual leave, which the agency granted
throughout the month of September. Id. at 29-30, 33, 37.
122 M.S.P.R. 468, ¶¶ 9-19. The Board dismissed that appeal for lack of jurisdiction.
Id., ¶¶ 1, 19.
4
¶7 On September 27, 2016, the appellant provided the agency a note from his
treating psychiatrist. However, instead of releasing the appellant to return to
duty, the psychiatrist stated that the appellant should not return to work until
December 1, 2016. Id. at 40. Over the next several months, the psychiatrist
continually pushed the appellant’s return-to-duty date back, ultimately to June 1,
2017. Id. at 42, 44, 46. During this period, the agency approved the appellant’s
requests for leave to cover this lengthy absence. Id. at 38, 41, 43, 45, 48.
¶8 On May 4, 2017, the appellant’s supervisor notified him that he was
“expected to report to work” on June 1, 2017. IAF, Tab 7 at 129. She warned
him that his absence from duty could not continue indefinitely and that he wo uld
face removal if he did not become available for duty on a regular basis. Id.
at 129-30. In anticipation of the approaching June 1, 2017 return -to-duty date,
she directed the appellant to provide a medical release no later than May 25,
2017. Id. at 129. However, the appellant was having difficulty scheduling an
evaluation, so his supervisor extended the release deadline to June 21, 2017, with
a July 5, 2017 return-to-work date. Id. at 70-71.
¶9 The June 21, 2017 deadline passed without the appellant submitting a
medical release, and around the same time, the appellant exhausted his accrued
leave. Id. at 136-37. On June 22, 2017, the appellant requested advance sick or
annual leave to cover his continued absence, but his supervisor denied the re quest
because she had no reasonable assurance that the appellant would return to duty.
Id. at 136, 138-40. Nevertheless, she approved the appellant’s continued absence
in a leave without pay (LWOP) status, while warning that if he did not report for
duty on July 5, 2017, with a medical release, he would be considered absent
without leave (AWOL). Id. at 136-37. The appellant did not submit a release or
report for duty by July 5, 2017, and the agency began carrying him in AWOL
status. Id. at 136, 188.
¶10 On July 21, 2017, the appellant notified the agency that he had a July 31,
2017 appointment with another psychiatrist. Id. at 226-27. The appellant’s
5
supervisor granted him approved LWOP pending the results of the July 31, 2017
evaluation, but she warned him that he must submit the psychiatrist’s opinion on
his ability to work no later than August 1, 2017. Id. at 225. On July 27, 2017,
this psychiatrist notified the appellant that he would not be handling his case. Id.
at 230. The appellant did not submit the required documentation, and he was
again placed in an AWOL status. IAF, Tab 8 at 8, 102, 105.
¶11 On August 22, 2017, the appellant’s supervisor proposed his removal based
on charges of AWOL and excessive absence. IAF, Tab 6 at 250 -58. In the
meantime, on June 15 and August 24, 2017, the appellant’s supervisor issued him
instructions in response to what the agency perceived were harassing emails.
IAF, Tab 5 at 103, Tab 6 at 8-9. Specifically, she instructed him not to
communicate directly with his prior supervisor and not to send “email blasts.”
IAF, Tab 6 at 8-9. During the period for responding to his proposed removal, the
appellant sent multiple emails that his supervisor considered to be in violation of
these instructions. IAF, Tab 5 at 103-04, 120-39, Tab 6 at 9. As a result, his
supervisor rescinded the pending proposal and issued a new one, dated
October 11, 2017, which included an additional charge of insubordination. IAF,
Tab 5 at 69-86. The proposal stated that any one of the charges would warrant
the appellant’s removal. Id. at 75-84. After the appellant responded, the deciding
official upheld all the charges and removed the appellant effective August 24,
2018. Id. at 6-13.
¶12 The appellant filed a Board appeal, contesting the merits of this third
removal action and raising affirmative defenses of whistleblower retaliation and
discrimination based on disability and national origin. IAF, Tab 1 at 3 -5, Tab 10,
Tab 15 at 2. He waived his right to a hearing. IAF, Tab 1 at 2. The
administrative judge developed the record and issued an initial decision affirming
the appellant’s removal. IAF, Tab 37, Initial Decision (ID). She sustained the
AWOL and excessive absences charges, but she did not sustain the
insubordination charge. ID at 14-16. She also concluded that the appellant failed
6
to prove his affirmative defenses. ID at 17-19. Finally, she found that the
removal penalty was reasonable for the sustained charges. ID at 19.
¶13 The appellant has filed a petition for review, challenging numerous aspects
of the initial decision. Petition for Review (PFR) File, Tab 1. The agency has
filed a response and cross petition for review, challenging the administrative
judge’s findings about its insubordination charge. PFR File, Tab 3. The
appellant has responded to the agency’s cross petition for review. PFR File,
Tab 5.
ANALYSIS
The administrative judge erred by not sustaining the charge of insubordination.
¶14 Again, the agency has challenged the administrative judge’s conclusion that
its insubordination charge could not be sustained. PFR File, Tab 3 at 5, 11 -16.
For the reasons that follow, we sustain the charge and modify the initial decision
accordingly.
¶15 Insubordination is the willful and intentional refusal to obey an authorized
order of a superior officer, which the officer is entitled to have obeyed. Walker v.
Department of the Army, 102 M.S.P.R. 474, ¶ 8 (2006). Here, the agency’s
insubordination charge consisted of two specifications. IAF, Tab 5 at 8, 81 -84.
The first stemmed from an instruction that the appellant cease all communication
with his former supervisor at work. According to the agency, the appellant was
insubordinate when he subsequently sent mass emails that included his former
supervisor as a recipient on August 24 and September 1, 2017, and by sending a
more individualized email to his former supervisor on September 1, 2017. Id.
at 83. The second specification stemmed from an instruction that the appellant
cease sending mass emails without prior approval. Id. at 83-84. According to the
agency, the appellant was insubordinate because he sent the September 1, 2017
mass email to thousands of employees. Id.7
¶16 The appellant’s response to the proposed removal did not substantively
address his supervisor’s orders or his alleged insubordination regarding the same.
Id. at 57-68. Then, during adjudication of this appeal, the appellant disputed the
charge without providing any substantive explanation, except to claim that he was
exercising his right to free speech or engaging in protected whistleblowing. 3 E.g.,
IAF, Tab 1 at 5, Tab 11 at 16-17, Tab 36 at 10-11; PFR File, Tab 5 at 19-21. As
such, it seems that the following facts, which are supported by the agency’s
documentary submissions, are not materially disputed.
¶17 On June 15, 2017, a former supervisor of the appellant’s contacted the
appellant’s current supervisor and an agency attorney, complaining that the
appellant had been harassing him via email. IAF, Tab 5 at 147. This former
supervisor asked for a plan of action to cease the harassment. Id. He also
included the appellant’s most recent, rambling message. Id. Among other things,
this message from the appellant to his former supervisor refer red to matters from
many years earlier; described his former supervisor as not “us[ing] [his] brain”;
claimed that the former supervisor had harassed the appellant all those years ago;
and denied having harassed his former supervisor. Id. Later that day, the
appellant’s current supervisor instructed the appellant to cease all contact with his
former supervisor at work. IAF, Tab 6 at 8. His current supervisor further
indicated that the appellant should send communications to her, as an
intermediary, if he ever had an official need to communicate with his former
supervisor in the future. Id. In a response also dated the same date, the appellant
acknowledged the instruction, indicating that he would comply. Id. at 15.
3
Although the appellant generally referred to his emails as protected whistleblowing,
he has not provided much of an explanation. He implicates only the first of his mass
emails—the one that led to an order that he not send out any more mass emails without
permission—in making this claim. PFR File, Tab 5 at 19 (referencing IAF, Tab 6 at 9).
To the extent that the appellant is presenting a whistleblower reprisal claim, we address
it below in our discussion of the appellant’s whistleblower reprisal affirmative defense.
8
¶18 On August 24, 2017, just days after his proposed removal for AWOL and
excessive absences that would eventually be replaced with one that added an
insubordination charge, the appellant sent an email from a personal account to a
couple of agency distribution lists, which included his former supervisor and
thousands of other employees. 4 IAF, Tab 5 at 103, Tab 6 at 9. This email is
rambling and difficult to understand but asserts various improprieties on the part
of the agency, at least some of which were related to his proposed removal. IAF,
Tab 6 at 9. For example, the email describes unnamed officials responsible for
his removal as a “clan of racists,” while summarily stating that the agency
“discriminates against Hispanics” and had “hid[den] felonies.” Id. The
appellant’s current supervisor immediately responded to the appellant, directing
him to not send “district wide, regulatory wide, or any other email blasts to
[agency] employees without [her] approval.” Id. The appellant replied with
another rambling email in which he claimed that his supervisor could not force
him to keep silent, but she could facilitate a large financial lump sum settl ement,
equivalent to 6 years of “[f]ront pay,” so that he could retire with 35 years of pay
or service. Id. at 244-45.
¶19 On September 1, 2017, the appellant once again sent an email to agency
distribution lists, which included his former supervisor and thou sands of other
employees. IAF, Tab 5 at 120, Tab 6 at 11-12. This email was similarly
rambling and indicated that the email included an attachment related to one of his
prior appeals, for the purpose of showing how prior charges against him had been
4
The record includes another email from the appellant, on the same date, addressed to
about a dozen individuals, including the appellant’s former supervisor. IAF, Tab 5
at 146. The email contains an attachment but no body text. Id. This appears to be
another instance of the appellant defying the order to cease communicating with his
former supervisor. However, while the email is referenced in the general background
portion of the proposal to remove the appellant, id. at 73, and the background portion
specific to the insubordination charge, id. at 82, it is not specifically referenced within
the accompanying specifications, id. at 83-84. Under the circumstances, we will not
consider this additional email from the appellant to his former supervisor.
9
“annihilate[ed].” 5 Id. That same day, the appellant also sent a separate email to
his former supervisor and just one other employee, with the subject line
indicating that he was attaching records, and body text that merely stated,
“gREETINGS.” 6 IAF, Tab 5 at 117.
¶20 The administrative judge found that the insubordination charge failed
because the agency’s orders to the appellant were improper. ID at 16. She
reasoned, citing Smith v. General Services Administration, 930 F.3d 1359 (Fed.
Cir. 2019), that the orders were overly broad because they did not merely direct
the appellant to refrain from making false or offensive statements. ID at 16. We
disagree.
¶21 An agency charging an employee with failure to follow instructions or
insubordination generally must show that the instructions were “proper.”
Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 555-56 (1996). The court in
Smith suggested that an agency’s instruction that an appellant not communicate
with agency officials absent prior supervisory approval “may independently
violate the Whistleblower Protection Act.” 930 F.3d at 1362-63, 1366 n.2. It
reasoned that such an instruction was a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xi). Smith, 930 F.3d at 1366 n.2. Under
section 2302(a)(2)(A)(xi), the definition of “personnel action” includes “t he
implementation or enforcement of any nondisclosure policy, form, or agreement .”
5
It is not apparent whether the attachment—which the text of the email specifically
referenced—was included in the record or even available to all recipients of the
appellant’s email message, which he sent from a personal email account, given the
agency’s systems for protecting against potentially harmful files. IAF, Tab 6 at 11 -12.
But the surrounding circumstances do suggest that the appellant included an attachment
in this email message. Id.6
Again, it is not apparent whether the attachment was inclu ded in the record or even
available to the recipients of the appellant’s email message, which he sent from a
personal email account. IAF, Tab 5 at 117. But again, the surrounding circumstances
do suggest that the appellant included an attachment in this email message. Id.10
¶22 This case is distinguishable from Smith because the instruction at issue in
Smith was motivated by the employee’s prior protected disclosures. 930 F.3d
at 1361-63, 1366 n.2. In other words, the instruction at issue was a nondisclosure
instruction. Unlike the employee in Smith, the appellant did not prove that he
made a protected disclosure in connection with any of the emails that prompted,
or followed, his supervisor’s June 15 and August 24, 2017 instructions regarding
his communications. 7 Therefore, he has not established he is entitled to
corrective action in connection with these instructions. See Alarid v. Department
of the Army, 122 M.S.P.R. 600, ¶¶ 12-13 (2015).
¶23 However, it is also a prohibited personnel practice to implement or enforce
“any nondisclosure policy, form, or agreement” unless it contains specific
language regarding, among other matters, an employee’s continued right to make
protected disclosures and engage in protected activities, and does not prohibit
disclosures made to certain entities. 5 U.S.C. § 2302(b)(13). Therefore, we have
considered whether the communication restrictions were improper because they
constituted such a prohibited personnel practice. 8 We answer this question in the
negative.
¶24 Unlike the circumstances in Smith, there is little reason to question the
motivations for the instructions at issue, and the agency did not seek to prevent
disclosures. Further, the instructions were not overly broad. In Smith, an agency
instructed the employee not to have any communications with upper level
managers without the approval of his first-level supervisor. Smith, 930 F.3d
at 1362. The instructions at issue here did not curtail the appellant’s ability to
contact individuals within or outside his chain of command. Further, the
instructions were narrowly tailored to concerns raised by his prior emails.
7
The content of these emails are further analyzed below in connection with the
appellant’s whistleblower reprisal affirmative defense.
8
We do not decide here whether an instruction is a policy, form, or agreement within
the meaning of 5 U.S.C. § 2302(b)(13).
11
¶25 To recall, the appellant was an employee of the agency, but he had not been
in a duty status, performing work, for years. Yet the appellant was sending
accusatory messages to his former supervisor, which the former supervisor
understandably found unwelcome. The appellant was also sending mass email
messages to thousands of agency employees about his own personal disputes with
the agency. Even if the messages could be read and disposed of in a brief amount
of time, that time must be multiplied by the thousands of recipients to account for
the burden it placed on agency operations. 9 We find the resulting instructions
from the appellant’s current supervisor to cease direct communication with his
former supervisor and cease sending mass emails were appropriate. See Lentine
v. Department of the Treasury, 94 M.S.P.R. 676, ¶¶ 2, 5, 15 (2003) (sustaining a
failure to follow a direct order charge and removal of an employee for emailing
another employee after an explicit order to cease such contact). We disagree with
the administrative judge’s finding to the contrary.
¶26 Having determined the facts surrounding the alleged insubordination and
the propriety of the underlying orders to the appellant, we now turn to the final
element of the agency’s burden—proof of intent. Parbs v. U.S. Postal Service,
107 M.S.P.R. 559, ¶ 13 (2007), aff’d per curiam, 301 F. App’x 923 (Fed. Cir.
2008). Intent is a state of mind that is generally proven by circumstantial
evidence in the context of an insubordination charge. Parbs, 107 M.S.P.R. 559,
¶ 13. In considering whether the agency has proven intent, the Board must
examine the totality of the circumstances. Id.9
In response to emails the appellant sent on August 24 and September 1, 2017, an
employee wrote to the appellant’s supervisor that they were “upsetting and offensive for
[him],” because it alleged that the employee and his sister had been hired and promoted
illegally, and accused coworkers and supervisors of “unethical behavior” and “wrongful
acts against [the appellant].” IAF, Tab 5 at 106. A note from a different agency
official contained in the record reflects that “several employees expressed concern
regarding” emails he sent on August 24 and September 1, 2017, and that the official
responded by sending an email message reminding employees “of the measures they can
take to assist with security and safety in the workplace.” IAF, Tab 6 at 249.
12
¶27 Here, we find that the record supports a finding of intent for the agency’s
first specification and its allegation about the September 1, 2017 email that the
appellant sent to his former supervisor and one other agency official. IAF, Tab 5
at 117. The agency’s order was clear, and the appellant acknowledged receipt of
that order, yet he unambiguously defied the order just weeks later. IAF, Tab 5
at 117, Tab 6 at 8, 15. The appellant has not substantively explained his actions
in any way that would negate what appears to be his intentional defiance of the
order to stop contacting his former supervisor. See Parbs, 107 M.S.P.R. 559,
¶ 20 (sustaining an insubordination charge when the appellant did not offer
significant contrary proof to rebut the agency’s circumstantial evidence) ;
Redfearn v. Department of Labor, 58 M.S.P.R. 307, 312-13 (1993) (finding the
intent element proven for an insubordination charge when the agency showed that
an appellant was given instructions she did not follow and the appellant failed to
offer any explanation such as impossibility or lack of knowledge).
¶28 For the other emails referenced in this specification, the August 24 and
September 1, 2017 mass emails, it is plausible that the appellant did not realize
the distribution lists he used included his former supervisor. See IAF, Tab 5
at 103, Tab 6 at 9, 11-12. But that explanation is not one the appellant has
presented. As previously stated, he has offered virtually no defense to the
insubordination charge, except to summarily claim that he was exercising his
right to free speech. 10 Therefore, we also find it more likely true than untrue that
10
Below, the appellant only briefly alluded to his constitutional right to free speech,
and he only did so in the context of extensive filings that were difficult to understand.
IAF, Tab 11 at 16-17, Tab 36 at 11. Because the administrative judge did not explicitly
address this issue, we will do so now.
To determine whether employee speech is protected by the First Amendment, the Board
must determine: (1) whether the speech addressed a matter of public concern and, if so,
(2) whether the agency’s interest in promoting the efficiency of the service outweighs
the employee’s interest as a citizen. Smith v. Department of Transportation,
106 M.S.P.R. 59, ¶ 46 (2007). To illustrate, the Board has explained that a discussion
regarding racial relations or discrimination is a matter of p ublic concern entitled to the
full protection of the First Amendment but an equal employment opportunity matter that
13
the appellant intentionally defied the order not to contact his former supervisor
when he sent the mass emails with the former supervisor as one of the recipients.
See Parbs, 107 M.S.P.R. 559, ¶ 20; Redfearn, 58 M.S.P.R. at 312-13.
¶29 Lastly, we find that the record also supports a finding of intent for the
agency’s second specification and its allegation about the mass email sent on
September 1, 2017. The corresponding order from just days before was
unambiguous, the appellant responded by implying that he would not comply, and
then he defied the order. IAF, Tab 6 at 9, 11-12, 244-45. Once more, the
appellant has not substantively explained his actions in any way that would
negate what appears to be his intentional defiance of a valid order to stop sending
mass emails without prior approval. See Parbs, 107 M.S.P.R. 559, ¶ 20;
Redfearn, 58 M.S.P.R. at 312-13.
¶30 In sum, we find that the agency has met its burden and we therefore sustain
the insubordination charge. We reverse the administrative judge’s contrary
conclusion.
We decline to rule on the agency’s AWOL and excessive absences charges.
¶31 The agency’s AWOL charge contained 59 specifications —one for each day
that the appellant was absent without authorization between July 5 and October 6,
2017. IAF, Tab 5 at 75-80. Its excessive absence charge covered all
267 workdays for which the appellant was absent from September 6, 2016,
is personal in nature and limited to the complainant’s own situation is not a matter of
public concern. Id., ¶ 47.
In this case, the emails underlying the appellant’s insubordination charge implicate d his
own personal grievances rather than any matter of public concern. IAF, Tab 5 at 117,
120. For that reason alone, the appellant’s claim fails. But even if his emails could be
construed as touching on a matter of public concern, we would find that the agency’s
interest outweighed the appellant’s. The agency’s interest was to stop the appellant
from contacting his former supervisor, who considered the appellant’s contact s
harassing, and to stop the appellant from interrupting the work of thousands of
employees with mass emails. The agency did not altogether prohibit the appellant from
voicing his interests as an employee or citizen.
14
through October 6, 2017. Id. at 80. The administrative judge found that the
agency proved both charges. ID at 14-16.
¶32 On review, the appellant asserts that he was entitled to leave under the
Family and Medical Leave Act of 1993 (FMLA) during the periods at issue in the
AWOL and excessive absence charges. PFR File, Tab 1 at 5 -8, 17. The appellant
raised this issue below, but the administrative judge did not address the matter in
her initial decision. IAF, Tab 1 at 5, Tab 13 at 10 -11.
¶33 An agency bears the burden of proving that it complied with the FMLA as
part of its overall burden of proving a leave-based charge. Somuk v. Department
of the Navy, 117 M.S.P.R. 18, ¶ 11 (2011). Like most civil service employees,
the appellant was covered under Title II of the FMLA. IAF, Tab 5 at 6; FMLA,
Pub. L. No. 103-3, § 201(a)(1), 107 Stat. 6, 19 (codified, in pertinent part, at
5 U.S.C. § 6381(1)(A), and incorporating the definitions of an “employee” under
Title II of the FMLA from 5 U.S.C. § 6301(2)); 5 C.F.R. § 630.1201(b)(1)(i)(A);
see generally 5 C.F.R. part 630, subpart L (containing the implementing
regulations of the Office of Personnel Management (OPM)). Under FMLA
Title II, an eligible employee is “entitled to a total of 12 administrative
workweeks of leave during any 12-month period” for, as relevant here, “a serious
health condition that makes the employee unable to perform the functions of the
employee’s position.” 5 U.S.C. § 6382(a)(1)(D); Landahl v. Department of
Commerce, 83 M.S.P.R. 40, ¶ 8 (1999); see 5 C.F.R. §§ 610.102, 630.1202
(defining an administrative workweek for purposes of FMLA, in relevant part, as
an agency-designated period consisting of “7 consecutive 24 hour periods”).
¶34 This case presents an issue regarding whether the agency should have
designated a portion of the appellant’s leave as FMLA-protected even though he
did not invoke FMLA-protected leave. The Board has previously held that, even
if an employee does not specifically mention the FMLA when requesting leave,
the requirement to invoke the FMLA may be satisfied as long as the employee
presents the agency with sufficient evidence to trigger consideration of his
15
absence under the FMLA. Bowen v. Department of the Navy, 112 M.S.P.R. 607,
¶ 8 (2009), aff’d per curiam, 402 F. App’x 521 (Fed. Cir. 2010). However, this
holding appears to be contrary to OPM’s FMLA regulations. Specifically,
section 630.1203(b) provides that “[a]n employee must invoke his or her
entitlement to FMLA leave” and generally may not invoke that entitlement
retroactively. Section 630.1203(h) also states that “[a]n agency may not put an
employee on [FMLA] leave and may not subtract leave from an employee’s
entitlement to [FMLA leave] unless the agency has obtained confirmation from
the employee of his or her intent to invoke entitlement to [FMLA leave].” OPM
explained these provisions by stating that, “The requirement that an employee
must initiate action to take FMLA leave is consistent with all other Federal leave
policies and programs in that the employee is responsible for requesting leave or
other time off from work.” Family and Medical Leave, 65 Fed. Reg. 26,483 -01,
26,483, 26,486-87 (May 8, 2000) (codified as amended, in relevant part, at
5 C.F.R. § 630.1203(b), (h)).
¶35 The circumstances of this case suggest that the appellant’s continued
absence was related to a serious health condition. See supra ¶¶ 6-10. But we
found no indication that the appellant invoked FMLA protection for his leave,
even though the numerous leave slips he completed during the relevant period
contained a space for him to do so. IAF, Tab 9 at 29-30, 37-38, 41, 43, 45, 47-50.
This seems to be true of both the 42 weeks of leave the agency granted for his
mental health condition leading up to his AWOL, as well as the period at issue in
the AWOL and excessive absence charges, which amounts to less than the
12 weeks contemplated by the FMLA. So, the facts before us present a n umber of
questions, including (1) whether Bowen remains good law, given the seemingly
contradictory regulatory provisions, (2) whether the agency could and should
have afforded the appellant FMLA leave for any period, despite him not invoking
FMLA when specifically prompted with an opportunit y to do just that and, if so,
(3) for what period should that FMLA leave have applied to his absence.
16
¶36 At this time, we decline to rule on these or related questions. We also
decline to address the appellant’s other arguments contesting these charges. PFR
File, Tab 1 at 10-11, 17, 19, 21-22. These include arguments that he should have
been granted advanced leave, his absence was not a burden to the agency, the
agency did not need to fill his position, and his approved absences did not
continue beyond a reasonable time. Id. We need not reach these issues because
we find that the agency’s insubordination charge, alone, supports the appellant’s
removal. Infra ¶¶ 55-58; see, e.g., Alvarado v. Department of the Air Force,
103 M.S.P.R. 1, ¶¶ 2, 40-41 (2006) (finding that the penalty of removal was
reasonable based on a charge of insubordinate defiance of authority, so it was
unnecessary to address the additional charge of misuse of Government
equipment), aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d, 490 F. App’x 932(10th Cir. 2012); Luciano v. Department of the Treasury, 88 M.S.P.R. 335,
¶¶ 3, 10-13, 23 (2001) (finding it unnecessary to determine whether an
administrative judge erred in failing to sustain all of the specifications supporting
an agency’s insubordination charge because the sustained specifications and the
proven charge of AWOL warranted the appellant’s removal), aff’d per curiam,
30 F. App’x 973 (Fed. Cir. 2002).
The appellant did not prove his affirmative defense of disability discrimination.
¶37 The appellant argued below that his removal was the product of disability
discrimination. IAF, Tab 1 at 5, Tab 11 at 12, 15. Before we turn to the
administrative judge’s findings and the appellant’s arguments on review, it is
useful to recount some of the most salient facts.
¶38 The appellant began taking extensive leave in 2012, consistent with his
psychiatrist’s letters about his condition and the need for time off. Supra ¶ 3;
e.g., 0167 IAF, Tab 11, Part 1 at 32, 38 of 58. Among other things, these letters
described the appellant as suffering from a deteriorating psychiatric condition that
was, at times, totally disabling and consisting of aggressive episodes. 0167 IAF,
Tab 11, Part 2 at 13. Any disability-related inquiry by an employer must be
17
“shown to be job-related and consistent with business necessity.” 42 U.S.C.
§ 12112(d)(4)(A); Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 30
(2014). The Board previously found, in Rosario-Fabregas, 122 M.S.P.R. 468,
¶¶ 14-17, that the agency’s requests for a medical release in 2012 met this
standard and were therefore permissible. The Board explained that the agency
had a reasonable belief that the appellant’s ability to perform the essential
functions of his position was impaired, and also reasonably believed that he posed
a direct threat due to his condition. Id. In November 2012, the appellant’s
psychiatrist indicated that he could attempt to return to a part-time schedule on a
trial basis for 3 weeks, but the agency deemed his opinion both contradictory and
insufficient in that it failed to explicitly address the essential functions of the
appellant’s position. 0167 IAF, Tab 11, Part 1 at 8-9 of 58, Part 4 at 4-7 of 27.
In the days that followed, the agency took the removal action that the Board later
mitigated to a suspension. Supra ¶¶ 3-4.
¶39 While preparing for the appellant’s return to work in 2016, after the Board
mitigated his removal, the agency requested a release from his medical provider.
Supra ¶ 6. Although the Board’s decision to mitigate the appellant’s prior
removal did not address the sufficiency of the appellant’s November 2012
medical update, we find that it did not suffice for purposes of the attempted return
to duty in 2016. This is because, among other things, the November 2012
medical update was several years old and had merely suggested that the appellant
was, at that point, ready for a brief trial run at working part -time. 0167 IAF,
Tab 11, Part 4 at 4-7 of 27. The November 2012 medical update was also lacking
in terms of the appellant’s ability to perform the essential functions of his
position. Id. It instead described the appellant in general terms such as the
appellant being able to understand and carry out only “lowest complexity
instructions.” Id. at 7 of 27.
¶40 The appellant did not immediately submit the medical release requested in
2016, nor did he return to work. Instead, the appellant began requesting
18
extensive annual and sick leave. Id. When the appellant did eventually submit a
medical note from his provider, it indicated that the appellant’s condition would
not allow his return to work until at least June 2017. Supra ¶ 7; IAF, Tab 9 at 46.
As that date neared and in the months that followed, the agency unsuccessfully
tried to obtain verification that the appellant was medically cleared for work
before eventually taking the removal action before us. Supra ¶¶ 8-11.
¶41 In her initial decision, the administrative judge found that the appellant’s
disability discrimination claim appeared to be based on the agency’s requirement
that he provide a medical release to return to work, but the request was proper.
ID at 17. On petition for review, the appellant disputes the administrative judge’s
finding, arguing that agency should not have required a medical release because
its safety concerns were unfounded. PFR File, Tab 1 at 8 -9, 22.
¶42 The appellant has not alleged that he provided any updated medical
documentation to the agency that might have ameliorated the agency’s prior
concerns. Nor has he presented any such evidence before the Board. The
agency’s longstanding and justified concerns about the appellant’s ability to
safely and effectively perform the essential functions of his position and his
previously diagnosed potential for aggression would have been exacerbated by his
submission of medical notes indicating he “should not return to work.” IAF,
Tab 9 at 40, 42, 44, 46. The notes provided no explanation suggesting the
appellant had recovered. Id. The only specific information the appellant’s
psychiatrist provided for his continued absence was that the appellant was
“anxious,” his capacity to concentrate was decreased, and he had “worry related
to several issues arising in the agency with his return to work.” Id. at 46. Thus,
the appellant’s own medical evidence suggested he had not improved, and may
have deteriorated.
¶43 On review, the appellant also argues that the agency committed disability
discrimination by failing to offer him a reasonable accommodation for his
condition. PFR File, Tab 1 at 8-9, 15-16, 20. The appellant raised this argument
19
below, but the administrative judge did not address it. IAF, Tab 11 at 8, 11-12,
14-16, 22-23, Tab 36 at 12-13. We have therefore considered the argument but
find it unavailing. As the Board previously explained in his prior appeal, a
failure to accommodate claim will fail if an employee’s refusal to engage in the
interactive process prevented the agency from identifying a reasonable
accommodation. Rosario-Fabregas, 122 M.S.P.R. 468, ¶ 18; see Herb L. v. U.S.
Postal Service, EEOC Appeal No. 0120140330, 2016 WL 4492212, at *7
(Aug. 17, 2016) (finding that a complainant who did not provide requested
documentation regarding the “parameters” of his need to rest his hip did not
demonstrate that he was entitled to a reasonable accommodation) . Here, the
appellant requested an accommodation in the form of part-time work in
February 2017, at the same time that his psychiatrist said he was unable to work.
IAF, Tab 8 at 190, Tab 9 at 44, 46. The agency promptly and repeatedly
requested supportive medical documentation that the appellant never provided.
IAF, Tab 6 at 35-36, 237, Tab 8 at 188-90, 201-02, 244-45. The agency’s request
was reasonable and appropriate under the circumstances because whether or how
a modification to his work schedule would have enabled the appellant to perform
his duties is not obvious and had not been addressed in any of the documentation
that the appellant had previously provided. See White v. Department of Veterans
Affairs, 120 M.S.P.R. 405, ¶ 14 (2013). Therefore, the appellant’s failure to
engage precludes him from prevailing on this failure to accommodate claim.
¶44 The appellant separately argues that the agency should have accommodated
him by providing him additional leave. PFR File, Tab 1 at 9. The use of accrued
paid leave or unpaid leave can be a form of reasonable accommodation. Willa B.
v. Department of Veterans Affairs, EEOC Appeal No. 2021000628, 2022 WL
1631370, at *5 (Apr. 27, 2022). However, “LWOP for an indefinite period of
time with absolutely no indication that one will or could return is not an
accommodation contemplated under the Rehabilitation Act.” Hilda H. v.
Department of Veterans Affairs, EEOC Appeal No. 0120162443, 2018 WL
201392246, at *4 (Mar. 6, 2018), req. to reconsider denied, EEOC Request
No. 0520180318, 2018 WL 3584199 (July 3, 2018). Before proposing his
removal, the agency already had provided the appellant with nearly 1 full year of
approved leave while it waited for some indication that he might be able to return
to duty. We find that the appellant has not shown that the agency violated his
rights by declining to continue with this course of action.
¶45 The appellant also argues that the agency removed him in retaliation for
opposing disability discrimination, i.e., for refusing to sign what he believed to be
an overly broad release for the agency-appointed psychiatrist to obtain his health
records. PFR File, Tab 1 at 11-14, 19-20. However, because the appellant did
not raise this argument below, and it is not based on previously unavailable
evidence, we decline to consider it. See Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016).
The appellant did not prove his affirmative defense of discrimination based on
national origin.
¶46 National origin discrimination is prohibited under Title VII of the Civil
Rights Act of 1964. 42 U.S.C. § 2000e-16(a). To prove an affirmative defense of
national origin discrimination, an appellant must prove that national origin was a
motivating factor in the contested personnel action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 20-21. Such a showing may entitle
an appellant to injunctive or other “forward looking reli ef.” Id., ¶ 22. To obtain
full relief, including status quo ante relief, compensatory damages, or other forms
of relief related to the end result of an employment decision, an appellant must
prove that the prohibited consideration “was a but-for cause of the employment
outcome.” Id. (quoting Babb v. Wilkie, 140 S. Ct. 1168, 1171, 1177-78).
¶47 In this case, the administrative judge found that the appellant was “of the
view that the agency discriminated against him because he is Hispanic,” but that
the appellant did not present any evidence to support his claim. ID at 17. The
appellant disputes this finding on review, arguing that his 2010 removal without
21
due process constitutes evidence of national origin discrimination. PFR File,
Tab 1 at 15, 23. We find, however, that the procedural defects in the agency’s
2010 removal action are not probative of whether the appellant’s 2018 removal
was motivated by national origin discrimination. We agree with the
administrative judge that the appellant has presented no evidence to support this
affirmative defense. 11 ID at 17.
The appellant did not prove his affirmative defense of whistleblower reprisal.
¶48 In adverse action appeal, an appellant’s claim of reprisal for making a
protected disclosure under 5 U.S.C. § 2302(b)(8), or engaging in protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), is analyzed under the
burden-shifting scheme set forth in 5 U.S.C. § 1221(e). Alarid, 122 M.S.P.R.
600, ¶ 12. The appellant must first prove that his disclosure or activity was
protected under sections 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D). Alarid,
122 M.S.P.R. 600, ¶¶ 12-13. He must next prove that his protected disclosure or
activity was a contributing factor in the challenged personnel action. Id. If the
appellant makes both of these showings by preponderant evidence, the burden of
persuasion shifts to the agency to prove by clear and convincing evidence that it
would have taken the same action in the absence of the appellant’s disclosure or
activity. Id., ¶ 14.
¶49 In this case, the appellant argued below that his removal was in retaliation
for protected whistleblowing, but the grounds of his claim were unclear. IAF,
Tab 11 at 4, 23, 30, 32. The administrative judge notified the appellant of how to
prove an affirmative defense of whistleblower retaliation, IAF, Tab 17 at 2-5, but
the appellant’s subsequent pleadings did little to clarify the matter. In any event,
the administrative judge construed the appellant’s defense as pertaining to the
series of emails at issue in the insubordination charge, i.e., the ones that led to his
11
To the extent that the appellant’s claim could be construed as an affirmative defense
of race discrimination, which is prohibited under the same statute, the same analysis
would apply. See Pridgen, 2022 MSPB 31, ¶¶ 20-22.
22
supervisor’s instructions and the ones that violated those instructions . ID at 19;
e.g., IAF, Tab 5 at 120-39, Tab 6 at 9. The administrative judge found that the
appellant provided no evidence in support of the allegations contained in those
emails and that he therefore failed to show that that he had a reasonable belief
that either of the emails evidenced Government wrongdoing. ID at 19.
¶50 On petition for review, the appellant argues that the agency was overly
lenient with management officials who committed misconduct similar to that for
which the appellant had been removed in 2010. PFR File, Tab 1 at 22 -23. In
support of his contention, the appellant cites to a discovery response that the
agency provided him in connection with his second removal appeal. Id. at 23;
IAF, Tab 6 at 104-10. The appellant’s argument provides no basis to disturb the
initial decision.
¶51 A protected whistleblower disclosure is a disclosure that an appellant
reasonably believes evidences a violation of any law, rule, o r regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Smith v. Department of the Army,
2022 MSPB 4, ¶ 14. A reasonable belief exists if a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
appellant could reasonably conclude that the actions of the Government evidence
one of the categories of wrongdoing listed in section 2302(b)(8)(A). Id. The
appellant need not prove that the matter disclosed actually established one of the
types of wrongdoing listed under section 2302(b)(8)(A); rather, the appellant
must show that the matter disclosed was one which a reasonable person in his
position would believe evidenced any of the situations specified in 5 U.S.C.
§ 2302(b)(8). Id.¶52 In his August 24, 2017 email, the appellant accused the agency of abus ing
its authority by allowing certain higher-level management officials accused of
misconduct to separate from service with a clean record. IAF, Tab 6 at 9. The
agency’s discovery response, however, indicates that one of the two named
23
officials resigned in the face of a notice of proposed removal and that the other
was disciplined with a letter of reprimand and continued his employment at the
agency. Id. at 104-05. Therefore, even having considered the agency’s discovery
response, we agree with the administrative judge that the appellant has provided
no evidence to support the allegations contained in this email. ID at 19.
¶53 We separately note that the appellant’s response to the agency’s cross
petition for review seems to present another theory about his whistleblower
retaliation claim. The appellant suggests that his August 24, 2017 mass email
was also protected whistleblowing because it contained allegations of
discrimination. PFR File, Tab 5 at 19; IAF, Tab 6 at 9. We need not consider
this claim because a reply is limited to factual and legal issues raised by another
party in response to the petition for review and may not raise new allegations of
error. 5 C.F.R. § 1201.114(a)(4). In any event, even if we were to consider this
argument, we would not grant the appellant’s petition for review. Although the
appellant’s email message summarily asserted that a certain agency office
discriminated against Hispanics, IAF, Tab 6 at 9, this allegation is not a protected
disclosure, see Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 6
(2016) (recognizing that disclosures must be specific and detailed, not vague
allegations of wrongdoing); see also Edwards v. Department of Labor,
2022 MSPB 9, ¶¶ 10-17, 22 (reaffirming that Title VII-related claims are
excluded from protection under the whistleblower protection statutes).
The appellant has not shown that his removal was the product of harmful
procedural error or a due process violation.
¶54 An agency’s failure to provide a tenured public employee with an
opportunity to present a response, either in person or in writing, to an appealable
agency action that deprives him of his property right in his employment
constitutes an abridgement of his constitutional right to minimum due process of
law, i.e., prior notice and an opportunity to respond. Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985). In this case, the appellant
24
asserts on review, as he did below, that the agency violated his right to due
process. PFR File, Tab 1 at 7, 11, 13, 15-16, 23-24; IAF, Tab 1 at 5, Tab 11
at 11, 19, 27, Tab 36 at 5-6, 12, 17. The administrative judge did not address the
due process issue specifically, but having reviewed the appellant’s arguments, we
find that he has not established a due process violation. Although the appellant
asserts that the agency violated his due process rig hts in many respects, his
assertions do not pertain to the issues of notice and opportunity to respond. For
instance, the appellant argues that the agency violated his due process rights by
requiring him to obtain a medical release before returning to wor k, by failing to
provide medical records to the agency-appointed psychiatrist without the
appellant’s authorization, and by not granting him additional LWOP. PFR File,
Tab 1 at 11, 13, 22. We find that none of the appellant’s arguments are sufficient
to establish a due process violation.
¶55 The appellant also argues on review that the agency committed harmful
procedural error. PFR File, Tab 1 at 5, 7, 16-17, 23-24. However, it does not
appear that he raised this issue below. See Clay, 123 M.S.P.R. 245, ¶ 6. In any
event, to prove that the agency committed harmful procedural error under
5 U.S.C. § 7701(c)(2)(A), an appellant must show both that the agency committed
procedural error and that the error was harmful. Parker v. Defense Logistics
Agency, 1 M.S.P.R. 505, 513 (1980). Here, the appellant has neither identified
nor cited the agency rules or regulations in question, and thus has not shown
procedural error. Simmons v. Department of the Navy, 11 M.S.P.R. 82, 83-84
(1982). For instance, he argues that the agency’s failure to account for his
difficulty in obtaining a medical release and its failure to grant him additional
LWOP were harmful procedural errors, but he identified no corresponding agency
rule. PFR File, Tab 1 at 17, 22. Therefore, even if we were to consider the
appellant’s late-raised arguments, we would find that he has not established his
affirmative defense.
25
The Board lacks jurisdiction over the instant appeal as a constructive suspension
claim.
¶56 The appellant argues for the first time on petition for review that his
absence from duty constituted an appealable constructive suspension. PFR File,
Tab 1 at 24. Although the appellant did not raise this argument below, we
exercise our discretion to address it here. Concerning the absence at issue in this
appeal, from September 6, 2016, through his August 24, 2018 removal, we f ind
that the appellant cannot establish that any period of this absence constituted an
appealable constructive suspension.
¶57 To establish Board jurisdiction over a constructive suspension appeal, an
appellant must prove by preponderant evidence that (1) he l acked a meaningful
choice in his absence; and (2) it was the agency’s wrongful actions that deprived
him of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013).
As explained above, regardless of whether the appellant had a meaningful choice
in his absence, no period of that absence was the result of the agency’s improper
acts. From September 6, 2016, through June 1, 2017, the appellant was absent on
his psychiatrist’s orders, and thereafter, he was absent because he was unable to
furnish a medical release, which the agency was fully entitled to require as a
condition of his return.
Removal is the maximum reasonable penalty for the appellant’s insubordination.
¶58 Because we have declined to rule on the AWOL and excessive absences
charges, and we are proceeding based only on the insubordination charge, it is
appropriate for us to analyze the penalty as if not all char ges were sustained.
Alvarado, 103 M.S.P.R. 1, ¶ 44. When the Board sustains fewer than all of the
agency’s charges, and the agency either indicates that it would have imposed the
same penalty based on the sustained charges, or does not indicate to the contrary,
the Board’s role is not to independently determine the penalty, but to decide
whether the agency’s choice of penalty is appropriate. Negron v. Department of
Justice, 95 M.S.P.R. 561, ¶ 32 (2004) (citing Lachance v. Devall, 178 F.3d 1246,
26
1258-59 (Fed. Cir. 1999)). The Board cannot “substitute its will” for that of the
agency, which is entrusted with managing its workforce. Id. (quoting Lachance,
178 F.3d at 1258). Rather, the Board “may mitigate an unreasonably severe
agency penalty to bring the penalty within the bounds of reasonableness.” Id.(quoting Lachance, 178 F.3d at 1258).
¶59 As previously mentioned, the proposal to remove the appellant stated that
any of the charges would support his removal from service. IAF, Tab 5 at 75-84.
Further, the agency submitted a declaration from the deciding official, in which
he stated under penalty of perjury that “[a]ny one of the charges alone w ould have
supported [the] decision to remove [the appellant] from service .” IAF, Tab 35
at 19-20. Such a declaration, if uncontested as appears to be the case here, proves
the facts it asserts. Woodall v. Federal Energy Regulatory Commission,
30 M.S.P.R. 271, 273 (1986).
¶60 The deciding official completed a Douglas factor checklist around the same
time as his decision letter. IAF, Tab 5 at 14-15; see Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of
factors that may be relevant in determining an appropriate penalty) . This
checklist described the appellant’s documented mental and emotional distress as a
mitigating factor, along with his 29 years of Federal service. IAF, Tab 5 at 15. It
also indicated that the insubordination charge, alone, would warrant removal
under the agency’s table of penalties. Id. at 14. The deciding official’s Douglas
factor checklist further referred to numerous other factors as aggravating for
purposes of the penalty determination, including the seriousness of the appellant’s
insubordination, his prior 30-day suspension, the multiple notices that his conduct
was unacceptable, and his lack of remorse. Id. at 14-15.
¶61 In his petition, the appellant suggests that removal was too harsh a penalty
for any of his alleged misconduct, particularly because of his past service and
disabilities. PFR File, Tab 1 at 4, 16. We disagree. We find that the facts at
hand support the appellant’s removal, even if we only consider the sustained
27
insubordination charge. See Parbs, 107 M.S.P.R. 559, ¶¶ 9, 12, 24-26 (construing
an agency’s charge as one of insubordination concerning a single incident and
finding that it warranted removal); Murry v. General Services Administration,
93 M.S.P.R. 554, ¶¶ 2, 6, 8-9 (2003) (finding that an administrative judge erred
by mitigating a removal to a suspension when the agency proved only one of its
three specifications supporting its insubordination charge), aff’d, 97 F. App’x 319(Fed. Cir. 2004).
¶62 In conclusion, we find that the agency proved its charge of insubordination.
We further find that the insubordination charge, alone, supports the penalty of
removal, so we need not rule on the agency’s AWOL and excess ive absences
charges. We also find that the appellant failed to prove any affirmative defense.
Accordingly, we sustain the appellant’s removal from service.
NOTICE OF APPEAL RIGHTS 12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
12
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.
28
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with t he U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
29
(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:
30
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 13 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
13
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.
31
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:
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.
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.