Case: 21-1628 Document: 46 Page: 1 Filed: 11/10/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHY J. COURTNEY,
Petitioner
v.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Respondent
______________________
2021-1628
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-20-0405-I-1.
______________________
Decided: November 10, 2021
______________________
KATHY J. COURTNEY, Raleigh, NC, pro se.
EBONIE I. BRANCH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, MARTIN F. HOCKEY, JR., TARA K. HOGAN.
______________________
Before NEWMAN, SCHALL, and PROST, Circuit Judges.
Case: 21-1628 Document: 46 Page: 2 Filed: 11/10/2021
2 COURTNEY v. EEOC
PER CURIAM.
Kathy Courtney seeks review of a decision by the Merit
Systems Protection Board (“Board”) affirming her removal
from federal service for being absent without leave from
March 25, 2019, to December 7, 2019. For the reasons dis-
cussed below, we affirm the Board’s decision.
BACKGROUND
Ms. Courtney was employed by the Equal Employment
Opportunity Commission (“EEOC”) as an Equal Oppor-
tunity Investigator. She was removed from her federal em-
ployment effective December 7, 2019. Removal was
premised on a charge of being absent without leave
(“AWOL”) for several months.
Ms. Courtney then appealed her removal to the Board.
The administrative judge assigned to the case first deter-
mined that the EEOC had proven its AWOL charge by a
preponderance of the evidence. App’x 13. 1 The adminis-
trative judge then determined that Ms. Courtney had
failed to establish her affirmative defenses—that is, alle-
gations of retaliation for EEO activity, discrimination
based on disability, and harmful procedural errors.
App’x 16–24. Third, the administrative judge determined
that there was a nexus between the AWOL charge and the
efficiency of the federal service because an “essential ele-
ment of employment is to be on the job when one is ex-
pected to be there.” App’x 25 (citation omitted). Finally,
the administrative judge agreed that removal was appro-
priate given the agency’s thorough Douglas analysis, which
relied on the seriousness of Ms. Courtney’s misconduct, the
length of her absence, and her supervisor’s statement re-
garding a loss in confidence in her based on her failures to
communicate. App’x 26. The administrative judge there-
fore affirmed the EEOC’s removal decision, App’x 27, and
1 “App’x” refers to Respondent’s corrected appendix.
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COURTNEY v. EEOC 3
that affirmance became the final decision of the Board, see
App’x 28, 32. Ms. Courtney then appealed to this court.
We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
On appeal to us, Ms. Courtney contests the adequacy
of the charge against her and argues that the EEOC’s re-
moval process suffered from harmful procedural errors.
Our review is limited by statute. We must affirm the
Board’s decision unless it is (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence. 5 U.S.C. § 7703(c); Yates v. MSPB,
145 F.3d 1480, 1483 (Fed. Cir. 1998). We see none of these
defects.
The sole charge against Ms. Courtney was “Miscon-
duct” because she was AWOL from the EEOC from
March 25, 2019, to December 7, 2019. See App’x 70. “In
order to prove a charge of AWOL, an agency must show by
preponderant evidence that the employee was absent, and
that [her] absence was not authorized or that [her] request
for leave was properly denied.” Noble v. USPS,
556 F. App’x 941, 943 (Fed. Cir. 2013).
The EEOC placed Ms. Courtney on AWOL status as of
March 25, 2019, as she had not reported to work after her
approved leave ended on February 19, 2019, and she had
been told that failure to return would render her AWOL.
App’x 3–5. The Board observed that Ms. Courtney did not
dispute her absence from work from March 25, 2019,
through her removal on December 7, 2019—nor her failure
to request leave during that timeframe. App’x 13. The
Board further observed that Ms. Courtney failed to provide
medical documentation justifying her absence. App’x 13.
Accordingly, the Board concluded that the EEOC had
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4 COURTNEY v. EEOC
proven that Ms. Courtney was AWOL from March 25,
2019, to December 7, 2019. App’x 13.
Ms. Courtney argues that the EEOC failed to provide
reasonable accommodations for her disability, without
which she could not return. The Board considered and re-
jected this argument. See App’x 3–4, 21. Specifically, it
found that the agency granted every accommodation that
Ms. Courtney had requested and informed her that she
could make additional requests at any time. App’x 21. And
it explained that Ms. Courtney had made general state-
ments that she could not return to work without reasona-
ble accommodations but had not indicated what else she
wanted, nor how the already-provided accommodations
were inadequate. App’x 21–22. The Board, having re-
viewed the arguments and evidence, could find no specific
reasonable accommodation that Ms. Courtney asked for
that was not provided, and it concluded that the agency
made “every effort” to assist her to perform her duties.
App’x 22. Accordingly, the Board determined that
Ms. Courtney had not shown that the agency had pre-
vented her from returning to work. App’x 22. These find-
ings of fact are supported by substantial evidence.
Ms. Courtney argues that the EEOC committed a pro-
cedural error by citing Article 38 in its Notice of Proposed
Removal but Article 39 in the Notice of Final Decision. See
App’x 68 (Notice of Proposed Removal), 37 (Notice of Final
Decision). These provisions are part of an applicable col-
lective bargaining agreement (“CBA”) that concerns remov-
als or adverse actions for different reasons. Ms. Courtney
characterizes this change in citation as a due-process is-
sue—and argues that the AWOL charge cannot sustain an
Article 39 removal, which is premised on unacceptable per-
formance, not misconduct. The citation error is apparent
and is not excusable as a typographical error. However, it
is also apparent, as seen throughout the proceedings, that
this was a removal for misconduct, and Ms. Courtney so
understood and responded on that basis. Article 38
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COURTNEY v. EEOC 5
concerns removals for misconduct; Article 39 for unsatis-
factory performance. This was a removal for misconduct.
Nothing in the record suggests that Ms. Courtney’s re-
moval was for unsatisfactory performance, and, indeed, the
analysis in the proposed removal and the Notice of Final
Decision both analyze a misconduct charge (including
headings labeled “Misconduct”). See App’x 38–41, 68–71.
Further, Ms. Courtney argues that the EEOC failed to
provide due process in connection with her removal be-
cause it did not provide enough time to reply to the Notice
of Proposed Removal. She argues that she only received
the July 23 Notice of Proposed Removal on August 6, and
that she was entitled to more time to respond than she was
given. She also argues that she had inadequate time to
choose a hearing date after receiving the notice. The Board
considered Ms. Courtney’s arguments about inadequate
time to respond and found that she had raised these con-
cerns with the EEOC, she had been given an extension past
the response time required by statute, and she had submit-
ted a full written response. App’x 23–24. The Board’s find-
ings on this front are supported by substantial evidence.
Further, the hearing-date issue is newly raised on appeal.
See Michalic v. USPS, 25 F. App’x 974, 977 (Fed. Cir. 2001)
(“Appellants from a Board decision may not raise argu-
ments for the first time on appeal to this court.” (citing Ka-
chanis v. Dep’t of the Treasury, 212 F.3d 1289, 1293
(Fed. Cir. 2000)). Even so, Ms. Courtney herself requested
a hearing date of August 13, 2019. The EEOC granted that
hearing date, but Ms. Courtney informed them the day be-
fore that she would not attend. App’x 63–65.
Ms. Courtney also argues that the EEOC’s removal ac-
tion was untimely because it was made effective before its
approval date, in violation of the applicable rules. See
Pet’r’s Mem. in Lieu of Arg. 1–2 (referencing “Guide to Pro-
cessing Personnel Actions (GPPA) Chapter 4 Para-
graph 4b(1)”). Ms. Courtney, however, does not appear to
have raised this argument before the Board or even in her
Case: 21-1628 Document: 46 Page: 6 Filed: 11/10/2021
6 COURTNEY v. EEOC
opening brief on appeal and has not provided enough detail
for us to evaluate it.
Finally, Ms. Courtney argues that the Board failed to
consider the EEOC’s “history of CBA violations” in its de-
cision—including, as she alleges, that it previously de-
moted her, inaccurately reported her W2 tax information,
and arbitrarily required her to transfer certain files when
she transferred offices. Pet’r’s Br. 2. Even assuming that
this information was before the Board and that the Board
failed to consider it, we are not convinced that this would
rise to the level of harmful error, as there does not appear
to be a link between these alleged facts and the Board’s
conclusions.
CONCLUSION
We have considered Ms. Courtney’s remaining argu-
ments but find them unpersuasive. For the reasons above,
we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.