UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARGARET JEAN JOHNSON, DOCKET NUMBER
Appellant, AT-0752-15-0141-I-2
v.
DEPARTMENT OF THE ARMY, DATE: May 26, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jean I. Hansen, Fort Rucker, Alabama, for the appellant.
Joseph H. Bestul, Fort Rucker, Alabama, 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
sustained her 15-day suspension. 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 erroneous application of the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant holds the position of Police Officer in Fort Rucker, Alabama.
Johnson v. Department of the Army, MSPB Docket No. AT-0752-15-0141-I-1,
Initial Appeal File (IAF), Tab 5 at 9. In August 2014, the agency proposed her
suspension for 15 days based upon charges of (1) failure to observe written
procedures where safety to persons or property is endangered, and
(2) insubordination. Johnson v. Department of the Army, MSPB Docket
No. AT-0752-15-0141-I-2, Refiled Appeal File (RAF), Tab 11 at 24-26. After the
appellant submitted a response, id. at 20-22, the deciding official upheld the
15-day suspension, id. at 17-18.
¶3 The appellant appealed her suspension to the Board. IAF, Tab 1. The
administrative judge held the requested hearing and issued a decision, finding that
the agency proved charge 1, but failed to prove charge 2. RAF, Tab 20, Initial
Decision (ID) at 4-9. Nevertheless, the administrative judge sustained the 15-day
suspension. ID at 9-11.
¶4 The appellant has filed a petition for review. Johnson v. Department of the
Army, MSPB Docket No. AT-0752-15-0141-I-2, Petition for Review (PFR) File,
Tab 1. She does not dispute the administrative judge’s findings concerning the
charges or nexus. Instead, the appellant presents arguments concerning the
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administrative judge’s consideration of prior discipline in upholding the penalty.
PFR File, Tab 1 at 4-5. The agency has filed a response. PFR File, Tab 4.
¶5 Where, as here, not all of the charges are sustained, the Board will consider
carefully whether the sustained charges merited the penalty imposed by the
agency. See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 308 (1981).
One of many relevant factors in considering the reasonableness of a penalty is an
employee’s past disciplinary record. Id. at 305.
¶6 The appellant first alleges that the administrative judge failed to recognize
that the penalty for her prior discipline was reduced. PFR File, Tab 1 at 4. She
also alleges that the administrative judge mischaracterized the nature of the
corresponding misconduct. Id. We find any such error harmless.
¶7 The proposing and deciding officials both cited a prior suspension in
selecting a 15-day suspension for the appellant’s current disciplinary action.
RAF, Tab 11 at 18, 25. Like the charge sustained in the instant appeal, the
appellant’s prior discipline stemmed from her failure to follow procedures
concerning the use of audio/video recording equipment. Id. at 24, 50. The
deciding official sustained that prior disciplinary action as a 7-day suspension.
Id. at 53. However, while the instant appeal was pending, the prior suspension
was reduced to 2 days, pursuant to a negotiated settlement agreement. IAF,
Tab 10 at 4; RAF, Tab 11 at 5.
¶8 While analyzing the reasonableness of the 15-day suspension in this appeal,
the administrative judge did describe the appellant’s prior discipline as a 7-day
suspension, without acknowledging that it had been reduced. ID at 11. The
administrative judge also described that prior discipline as stemming from a
“failure to follow procedures regarding video/audio equipment,” which is
consistent with the underlying allegations but inconsistent with the corresponding
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decision letter, which described the misconduct as “conduct unbecoming.” 2
Compare RAF, Tab 11 at 53, with ID at 11. However, an adjudicatory error that
is not prejudicial to a party’s substantive rights provides no basis for reversal of
an initial decision. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984).
¶9 To the extent that the administrative judge erred in her description of the
appellant’s prior suspension, the error was harmless. See Carrick v. U.S. Postal
Service, 67 M.S.P.R. 280, 284 (finding an administrative judge’s errors in
describing the length of one prior suspension and the charge in another harmless),
aff’d, 69 F.3d 555 (Fed. Cir. 1995) (Table). The agency accused the appellant of
failing to meet requisite standards concerning audio/video equipment use in May
2014, and decided to suspend her for that failure in June 2014. RAF, Tab 11 at
50, 53. Nevertheless, the appellant again failed to meet those standards in
August 2014. Id. at 17, 24.
¶10 As the administrative judge noted, the deciding official testified that the
sustained charge was serious and warranted a lengthy suspension, in part because
the appellant already had been suspended for similar misconduct once before.
ID at 10; see generally Lachance v. Devall, 178 F.3d 1246, 1258 (Fed. Cir. 1999)
(recognizing that the Board may not disconnect its penalty determination from the
agency’s managerial will and primary discretion in disciplining employees). We
are not persuaded that the mitigation of that prior suspension from 7 to 2 days,
pursuant to a settlement agreement, or the varying labels used to identify that
misconduct, makes the 15-day suspension at issue here any less reasonable. See
generally Parbs v. U.S. Postal Service, 107 M.S.P.R. 559, ¶ 25 (2007)
(recognizing that prior discipline for similar misconduct is an aggravating factor,
2
In fact, the proposal and decision letters for the appellant’s prior discipline labeled the
misconduct differently. The proposal letter labeled the appellant’s misconduct as
“failure to observe written procedures where safety to persons or property is
endangered,” while the decision letter characterized it as “conduct unbecoming.” RAF,
Tab 11 at 50, 53.
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to be weighed against mitigation), aff’d, 301 F. App’x 923 (Fed. Cir. 2008);
Crawford v. Department of Justice, 45 M.S.P.R. 234, 237 (1990) (recognizing
that law enforcement employees may be held to a higher standard of conduct than
non-law enforcement employees).
¶11 The appellant next asserts that she tried to inform the administrative judge
about the reduction of the penalty for her prior discipline, but the administrative
judge indicated that she would not hear testimony or consider that prior discipline
in rendering her decision in the instant appeal. PFR File, Tab 1 at 5. We find no
merit to the appellant’s assertion.
¶12 Under Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 338-39
(1981), when an agency relies on past discipline to support the disciplinary action
that is on appeal, the Board generally will review the past discipline to determine
whether: (1) the employee was informed of the action in writing; (2) the
employee had an opportunity to have the action reviewed, on the merits, by an
authority different from the one that took the action; and (3) the action was made
a matter of record. If those three criteria are met, the Board will discount the past
discipline only if it is left with a “definite and firm conviction that a mistake has
been committed.” Id. at 340.
¶13 Here, the administrative judge did not review the appellant’s past discipline
upon which the agency relied. However, the Board has held that Bolling review
is required only where the appellant has actually challenged the validity of her
prior discipline on appeal. Rosenberg v. Department of
Transportation, 105 M.S.P.R. 130, ¶ 34 (2007). Although the appellant generally
alleges that the administrative judge assured her that the prior discipline would
not be considered, she failed to identify when the administrative judge did so, or
in what context. See Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92
(1992) (explaining that a petition for review must contain sufficient specificity to
enable the Board to ascertain whether there is a serious challenge justifying a
complete review of the record); Weaver v. Department of the Navy, 2 M.S.P.R.
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129, 133 (1980) (finding that, before the Board will undertake a complete review
of the record, the petitioning party must identify the specific evidence in the
record that demonstrates the error). Moreover, although the appellant seems to
suggest that she was surprised that the administrative judge considered the prior
discipline, the appellant’s petition contains no challenge to the validity of that
prior discipline, nor does it identify any such challenge during the proceedings
below. PFR File, Tab 1 at 4-5; cf. IAF, Tabs 1, 10; RAF, Tab 19. Accordingly,
we conclude that the appellant’s assertions do not provide any basis for disturbing
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 United States 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 United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
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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
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.