UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRISSY WINTER, DOCKET NUMBER
Appellant, SF-0752-15-0467-I-1
v.
DEPARTMENT OF DEFENSE, DATE: February 18, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bobbie Bowling, Stockton, California, for the appellant.
Matthew E. Hughes, Esquire, Washington, D.C., for the appellant.
Nancy C. Rusch, Esquire, Stockton, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous application of the law to the facts of the case; the 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. See 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. We therefore DENY the petition
for review and AFFIRM the initial decision.
¶2 Effective April 5, 2015, the agency removed the appellant from her Material
Examiner and Identifier position, in the agency’s Defense Logistics Agency
Distribution division based on the following charges: (1) off-duty misconduct
based on her arrest for felony burglary and related charges, and (2) absence
without leave (AWOL). Initial Appeal File (IAF), Tab 6 at 22-25, 40-43. In
sustaining both charges against the appellant, the deciding official considered the
appellant’s oral reply to her proposed removal and that the state reduced her
charges from felony burglary to misdemeanor shoplifting because of the effect of
California Proposition 47, 2 not because of “any change in the articulation of
facts.” 3 Id. at 22-23. The deciding official also considered the Douglas factors in
deciding to the remove the appellant. Id. at 23-24, 30; see Douglas v. Veterans
Administration, 5 M.S.P.R. 280 (1981).
¶3 The appellant filed a timely appeal with the Board challenging her removal.
IAF, Tab 1. She alleged that the agency committed harmful procedural error
2
For an explanation of California Proposition 47, see infra ¶ 9.
3
The court dismissed the appellant’s charge of second-degree burglary and accepted the
appellant’s nolo contendere plea to a charge of misdemeanor shoplifting. IAF, Tab 14
at 10. We note that the appellant’s oral response to her proposed removal addressed the
charge of off-duty misconduct but not the AWOL charge. IAF, Tab 13 at 5.
3
based on the agency’s decision to change the deciding official during the removal
process. IAF, Tab 16 at 1-2. After holding a hearing, id., the administrative
judge issued an initial decision affirming the appellant’s removal. The
administrative judge found that the agency proved both charges by a
preponderance of the evidence; that the appellant failed to prove her affirmative
defense of harmful procedural error; that the agency met its burden of proof as to
nexus; and that the penalty of removal was reasonable. IAF, Tab 19, Initial
Decision (ID).
¶4 The appellant filed a petition for review arguing that her removal was
unreasonable. Petition for Review (PFR) File, Tab 1. On review, the appellant
does not challenge the administrative judge’s finding that she failed to prove her
affirmative defense of harmful procedural error. The agency responded in
opposition to the appellant’s petition for review. 4 PFR File, Tab 3.
The administrative judge correctly found that the agency proved the charge of
AWOL.
¶5 To prove that the appellant was AWOL, the agency must show that she was
absent during the stated period and that the absence was unauthorized or that a
request for leave was properly denied. Robb v. Department of
4
On September 24, 2015, the appellant’s attorney filed an untimely reply to the
agency’s September 1, 2015 response to her petition for review. PFR File, Tab 3 at 5,
Tab 7; see 5 C.F.R. § 1201.114(e) (a reply to a party’s response to a petition for review
must be filed within 10 days after the service date of the response). With the
appellant’s reply, the appellant’s attorney submitted several exhibits, including a
motion for an extension of time to reply, dated September 14, 2015, with an attached
declaration in support of the motion, and an email submitted by the appellant’s attorney
to the Office of the Clerk of the Board on September 14, 2015. PFR File, Tab 7
at 18-21, 31-32. It appears from the certificate of service attached to the September 14,
2015 motion for an extension of time to reply and the September 14, 2015 email that the
appellant’s attorney transmitted the motion to the Office of the Clerk of the Board by
email on September 14, 2015. Id. at 18-21. The agency opposed the appellant’s
September 24, 2015 submission. PFR File, Tab 8. The Board accepts electronic service
solely through the Board’s e-Appeal Online system and does not accept pleadings filed
by email. 5 C.F.R. § 1201.14(d). Thus, because the appellant’s attorney failed to
properly file the motion for an extension of time to reply, we do not consider the
appellant’s September 14, 2015 motion or the appellant’s September 24, 2015 reply.
4
Defense, 77 M.S.P.R. 130, 132-33 (1997). An AWOL charge may be sustained
even when the agency fails to prove that the employee was AWOL for the entire
period charged. Senior v. U.S. Postal Service, 85 M.S.P.R. 283, 289 (2000). The
administrative judge found that the agency proved the AWOL charge by
preponderant evidence because the appellant submitted no medical documentation
to support her claim that she was sick on October 10, 2014, and there was no
evidence that she requested additional leave to cover the 24 hours of AWOL
charged between October 10-15, 2014. ID at 6-7. We agree.
¶6 On review, the appellant reasserts the arguments she made on appeal that
she informed her supervisor that she would be absent and that she had available
leave to cover her absence while incarcerated. PFR File, Tab 1 at 1; IAF, Tab 14
at 6, 13. Even if we were to assume that the appellant reasonably believed that
the agency could not charge her with AWOL because she had available leave, we
find that the record does not support her contention that the agency unreasonably
denied her request to use sick leave to cover her absence while incarcerated on
October 10, 2014. See Senior, 85 M.S.P.R. at 289.
The administrative judge correctly found that the agency proved the charge of
off-duty misconduct.
¶7 The notice of proposed removal states, inter alia, that on or about
October 19, 2014, the appellant was arrested for three felony charges of burglary
and related charges and that she “pleaded no contest to one count of burglary” at
her November 24, 2014 preliminary hearing. IAF, Tab 6 at 40-41. The agency
charged the appellant with off-duty misconduct based on the circumstances
surrounding her arrest for felony burglary and related charges, as detailed in the
sheriff’s report and her admissions therein. Id. The sheriff’s report, which is part
of the record on appeal, states that the appellant received her Miranda rights
before admitting on October 9, 2014, that she cut the security device from a
television, which she could not afford to purchase, and she left the store with the
television in her cart without paying for it. Id. at 62. The sheriff’s report also
5
states that Target’s loss prevention officer observed the appellant on the store’s
video surveillance system, when she cut the security device from the television,
hid it, and concealed various items in bags and exited the store without paying.
Id. at 61. The sheriff’s report further states that the appellant’s daughter
confirmed that the appellant planned to steal the television and that her daughter
told the appellant to leave the cart and the store. Id. at 63-64. In deciding to
remove the appellant, the agency’s deciding official concluded that the version of
events set forth in the sheriff’s report was more credible than the version of
events set forth in the appellant’s oral response to her proposed removal. Id.
at 22. The administrative judge determined that the appellant entered a plea to
having engaged in illegal activity and that the agency proved the off-duty
misconduct charge. ID at 5-6.
¶8 The appellant argues on review that the agency removed her for felony
burglary and AWOL but the criminal charge was lowered to misdemeanor
shoplifting; therefore, she should get her job back. PFR File, Tab 1 at 3. We
disagree. The agency did not specify that it was removing the appellant based on
a felony burglary conviction. The agency’s proposal to remove the appellant
accurately states that the appellant was arrested “for felony burglary and related
charges,” and the removal decision letter accurately states that the charges were
reduced to misdemeanor shoplifting because of “Proposition 47” and “not any
change in the articulation of facts.” IAF, Tab 6 at 22-23, 40.
¶9 California Proposition 47, a law which passed on November 4, 2014, allows
people to change certain low-level nonviolent felonies, such as petty
theft/shoplifting under $950, to misdemeanor offenses by filing a form with the
court and providing a copy to the district attorney. 5 See Cal. Penal Code
§ 1170.18. The appeal record included a court document indicating that the
appellant successfully changed the felony offense to misdemeanor shoplifting
5
See Changing Your Record Under Proposition 47, Californians for Safety and Justice,
http://www.safeandjust.org/recordchange (last visited Feb. 18, 2016).
6
pursuant to California Proposition 47, and she does not dispute this fact on
review. IAF, Tab 6 at 49; see ID at 5.
¶10 Although the appellant argues that she received information that reducing
the charges from a felony to a misdemeanor would get her job back, her argument
fails to identify any legal basis for canceling her removal. PFR File, Tab 1 at 1.
The appellant also argues that she only admitted to taking the items so that the
security officer would let her leave the store, and that she entered a plea of no
contest to the charge of misdemeanor shoplifting upon the advice of her defense
attorney. Id. The administrative judge found, and we agree that, the doctrine of
collateral estoppel applies to bar the appellant from denying the offenses for
which she accepted legal responsibility under her nolo contendere plea that
resulted in her misdemeanor shoplifting conviction. ID at 5-6; see Loveland v.
U.S. Air Force, 34 M.S.P.R. 484, 490-91 (1987). We discern no reason to disturb
the administrative judge’s finding that the agency proved the charged off-duty
misconduct by preponderant evidence.
The agency proved nexus between the appellant’s misconduct and the efficiency
of the service.
¶11 The appellant argues on review that her off-duty misconduct had nothing to
do with her job, which challenges the administrative judge’s finding that the
agency proved nexus between her misconduct and the efficiency of service. PFR
File, Tab 1; ID at 10-12. An agency may show nexus between off-duty
misconduct and the efficiency of the service by three means: (1) a rebuttable
presumption in certain egregious circumstances; (2) preponderant evidence that
the misconduct adversely affects the appellant’s or coworkers’ job performance or
the agency’s trust and confidence in the appellant’s job performance; or
(3) preponderant evidence that the misconduct interfered with or adversely
affected the agency’s mission. Hoofman v. Department of the
Army, 118 M.S.P.R. 532, ¶ 16 (2012), aff’d, 526 F. App’x 982 (Fed. Cir. 2013).
7
¶12 The administrative judge found that the agency established nexus by
demonstrating that the appellant’s misconduct adversely affected the agency’s
trust and was potentially damaging to the agency’s reputation because her arrest
was reported in a local newspaper and publicly known to her coworkers. ID
at 11-12; Hearing Compact Disc (HCD) (testimony of the deciding official). The
deciding official testified that the appellant’s job duties involved working in a
facility full of expensive electronics and that she could no longer trust the
appellant after her arrest for shoplifting electronics and other items. 6 HCD
(testimony of the deciding official). Based on the foregoing, we find that the
agency proved the connection between the appellant’s off-duty misconduct and
her job-related responsibilities. ID at 12; see White v. U.S. Postal
Service, 768 F.2d 334, 335-36 (Fed. Cir. 1985).
¶13 We further find that the administrative judge properly found nexus as to the
sustained charge of AWOL. Showing up for work when expected is an essential
element of employment and inherently connected to the efficiency of service. ID
at 12; see Adams v. Department of Labor, 112 M.S.P.R. 288, ¶ 8 (2009). The
deciding official determined that the appellant’s failure to report for work while
incarcerated burdened her coworkers and had a negative impact on the agency’s
mission. IAF, Tab 6 at 23; HCD (testimony of the deciding official). Based on
our review, we find no reason to disturb the administrative judge’s finding on
nexus.
The removal penalty was reasonable.
¶14 Where, as here, the agency’s charges have been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
of the relevant Douglas factors and exercised management discretion within
tolerable limits of reasonableness. Woebcke v. Department of Homeland
6
Although the appellant argues on review that “the managers were not quite truthful at
the hearing,” she offers no factual basis or record citations to support her allegation.
PFR File, Tab 1 at 1.
8
Security, 114 M.S.P.R. 100, ¶ 7 (2010); Douglas, 5 M.S.P.R. at 306. The Board
has articulated factors to be considered in determining the propriety of a penalty,
such as the nature and seriousness of the offense, the employee’s past disciplinary
record, the supervisor’s confidence in the employee’s ability to perform her
assigned duties, the consistency of the penalty with the agency’s table of
penalties, and the consistency of the penalty with those imposed upon other
employees for the same or similar offenses. Douglas, 5 M.S.P.R. at 305-06.
¶15 The Board places primary importance upon the nature and seriousness of
the offense, and its relation to the appellant’s duties, position, and
responsibilities. Rackers v. Department of Justice, 79 M.S.P.R. 262, 282 (1998),
aff’d, 194 F.3d 1336 (Fed. Cir. 1999) (Table). All of the factors will not be
pertinent in every instance, and so the relevant factors must be balanced in each
case to arrive at the appropriate penalty. Douglas, 5 M.S.P.R. at 306. In
determining whether the selected penalty is reasonable, the Board gives due
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency. Woebcke, 114 M.S.P.R. 100, ¶ 7.
The Board will modify a penalty only when it finds that the agency failed to
weigh the relevant factors or that it clearly exceeded the bounds of
reasonableness in determining the penalty. Harris v. U.S. Postal
Service, 100 M.S.P.R. 613, ¶ 13 (2005).
¶16 The appellant challenges the administrative judge’s finding that removal
was a reasonable penalty. Specifically, the appellant argues on review that the
removal penalty is unreasonable because her work record was exceptional, she
was never in trouble before, and the table of penalties for a first AWOL offense
ranges from a reprimand to a 14-day suspension. PFR File, Tab 1 at 1. The
appellant further argues that the agency did not remove other employees for their
first AWOL offenses, and the agency should not persecute her for her off-duty
misconduct because she already had her “day in court.” Id. For the reasons
explained below, we find that the appellant’s arguments on review do not show
9
that the agency failed to weigh the relevant factors or that the agency clearly
exceeded the bounds of reasonableness in determining the penalty.
¶17 The record reflects that the deciding official removed the appellant because
of her proven off-duty misconduct and AWOL after considering the appellant’s
fully successful work history, her lack of prior discipline, her length of service,
the mitigating factors in her case, the adequacy of other sanctions, and other
Douglas factors. IAF, Tab 6 at 23-24, 30; HCD (testimony of the deciding
official). The deciding official concluded that the appellant had no potential for
rehabilitation because she was not truthful when apprehended, she “tried to
excuse her theft by implying she was laid off at work, and she did not admit her
criminal conduct. IAF, Tab 6 at 24; HCD (testimony of the deciding official).
The deciding official further testified that she was disturbed by the discrepancies
between the appellant’s statements to the agency about the incident at Target and
the facts stated in the sheriff’s report. HCD (testimony of the deciding official).
The deciding official also determined that removing the appellant was within the
range suggested in the agency’s table of penalties and was consistent with the
penalty imposed for other employees who recently had engaged in on-duty thefts
and there were no instances of off-duty thefts. IAF, Tab 6, Subtab 4D, Tab 13
at 16.
¶18 The administrative judge found that the deciding official considered the
relevant Douglas factors and reasonably exercised management discretion in
deciding to remove the appellant for her proven off-duty misconduct and AWOL.
Having considered the appellant’s arguments on review, we discern no reason to
reweigh the evidence or substitute our assessment of the record evidence for that
of the administrative judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
105-06 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions); Broughton v. Department of Health & Human
10
Services, 33 M.S.P.R. 357, 359 (1987) (same). We therefore deny the petition for
review and affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, 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
11
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.