                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RICHARD FIGUEROA,                               DOCKET NUMBER
                  Appellant,                         NY-0752-14-0203-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: December 22, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Alan E. Wolin, Esquire, Jericho, New York, for the appellant.

           Alexander Lawrence Judka, Esquire, New York, New York, 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 his 45-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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the erroneous application of the law to the facts of the case; the administrative
     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. 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).

                                      BACKGROUND
¶2        The appellant was employed as a Customs and Border Patrol Officer
     (CBPO) officially assigned to the Firearms Unit at John F. Kennedy International
     Airport. Initial Appeal File (IAF), Tab 38, Hearing Transcript (HT) at 227-28.
     One day, after completing his regular shift, he performed an overtime shift in
     another unit. Id. at 216-17. Because of the appellant’s conduct during that shift
     and afterwards, the agency proposed to suspend him on the basis of one charge of
     failure to follow supervisory instructions and one charge of disrespectful conduct
     toward a supervisor.    IAF, Tab 7 at 62-64.      The first charge included three
     underlying specifications best summarized as follows: (1) the appellant refused
     to place a stamp on a certain document and to complete certain inspections,
     despite repeated orders to do so; (2) when he was working the overtime
     assignment, the appellant told the supervisory CBPO that he was leaving due to
     illness and, despite being instructed to do so, failed to sign out before leaving;
     and (3) after being instructed in an email to provide a note from the medical
     provider from whom he alleged to have sought treatment on the day in question,
     the appellant replied that he would not do so.         Id. at 62.   The charge of
                                                                                                3

     disrespectful conduct, which arose out of the appellant’s conduct on that same
     day, was based upon his refusal to complete an assignment as instructed by the
     supervisory CBPO and his comments to the supervisory CBPO in refusing to
     complete the assignment. Id. The appellant provided both an oral and written
     reply to the proposed suspension. Id. at 65-90. The deciding official sustained
     both charges and the underlying specifications and imposed the 45 -day
     suspension. Id. at 91-94.
¶3         The appellant filed the instant appeal challenging the suspension and
     asserting   affirmative   defenses      of   equal   employment      opportunity     (EEO)
     retaliation, discrimination based on gender and national origin, and harmful
     procedural error.    IAF, Tab 1.        After conducting the requested hearing, the
     administrative judge issued an initial decision affirming the suspension and
     denying the appellant’s affirmative defenses. IAF, Tab 46, Initial Decision (ID).
     The appellant has filed a petition for review, and the agency has responded.
     Petition for Review (PFR) File, Tabs 1, 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶4         First, the appellant challenges the administrative judge’s decision to sustain
     specification 1 of the failure to follow instructions charge.              ID at 9-19.    He
     asserts, as he did below, that the agency policy on the relevant procedures was
     unclear, which led to the supervisors’ uncertainty about the policy and his
     disagreement with them about how to complete the assigned tasks. PFR File,
     Tab 1 at 17. He also challenges the decision to sustain specification 2 of this
     charge, which related to his failure to sign out upon leaving his overtime shift,
     because he asserts that, since he was working overtime, he should not have had to
     sign out. Id.
¶5         To prove a charge of failure to follow instructions, an agency must establish
     that the employee was given proper instructions and he failed to follow the
     instructions,   without   regard   to    whether     the   failure   was    intentional   or
                                                                                         4

     unintentional.    Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 16
     (2014). Even when the employee may have substantial reason to question the
     instructions, absent unusual circumstances, such as when obedience would cause
     him irreparable harm or place him in a clearly dangerous situation or when the
     instructions are clearly unlawful, he must first comply with the instructions and
     then, if he disagrees with them, register his complaint or grievance later.
     Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶¶ 16, 18, aff’d, 343 F.
     App’x 605 (Fed. Cir. 2009); Larson v. Department of the Army, 91 M.S.P.R. 511,
     ¶ 21 (2002).
¶6         The      Board   must   defer   to   an   administrative   judge’s   credibility
     determinations when they are based, explicitly or implicitly, on observing the
     demeanor of witnesses testifying at a hearing; the Board may overturn such
     determinations only when it has “sufficiently sound” reasons for doing so.
     Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).             The
     administrative judge correctly sustained specification 1 because she found the
     agency proved that the appellant failed to follow the supervisors’ instructions
     when they ordered him to complete certain procedures and that the appellant did
     not show that he believed that these instructions were unlawful or that obeying
     them would have placed him in a clearly dangerous situation or caused him
     irreparable harm.      ID at 17-19.   She also properly sustained specification 2
     because she found that the appellant did not dispute that he failed to sign out and
     that the supervisory CBPO credibly testified both that he told the appellant to
     sign out and that the appellant was required to do so. ID at 19-23. The appellant
     has failed to proffer sufficiently sound reasons for disturbing the administrative
     judge’s credibility determinations in support of her decision sust aining these
     specifications.    Furthermore, his reasserting policy disagreements with the
     supervisors’ instructions does not provide a reason for disturbing the initial
     decision because he was required to comply with the instructions despite his
     disagreement. Pedeleose, 110 M.S.P.R. 508, ¶ 16.
                                                                                         5

¶7        Next, the appellant challenges the administrative judge’s decision to sustain
     specification 3 regarding his failure to provide medical documentation because he
     asserts, among other things, that the agency had no basis to request medical
     documentation under the circumstances, including the fact that he was working an
     overtime shift and thus was not required to request leave.           PFR File, Tab 1
     at 16-17; ID at 23-25. He also reasserts that the agency’s request for medical
     documentation and the requirement that he sign out before leaving his shift
     constituted harmful procedural error.      PFR File, Tab 1 at 21-22; ID at 45-46.
     However, as the administrative judge found, the agency was entitled to request
     supporting documentation when it suspected an employee of leave abuse, the
     appellant was ordered to provide medical documentation, there were reasonable
     grounds to request the documentation from the appellant, who left work after a
     disagreement with two supervisors, and there was no dispute that he failed to
     provide the requested documentation.           ID at 23-25.   Thus, we find that the
     administrative judge properly sustained this specification because she found that
     the appellant failed to follow instructions regarding medical documentation for
     his leave usage.    See generally Wilkinson v. Department of the Air Force,
     68 M.S.P.R. 4, 7 (1995) (holding that discipline for failing to properly request
     leave may be imposed regardless of the employee’s eventual entitlement to the
     leave). Furthermore, we find no harmful procedural error because we agree with
     the administrative judge that the agency acted within its authority to request the
     appellant to sign out and to provide medical documentation and because we agree
     with her interpretation of the collective bargaining agreement in finding that the
     agency   was   entitled   to   request   the     medical   documentation   under   the
     circumstances of this case. ID at 45-46.
¶8        The appellant also generally challenges the administrative judge’s decision
     to sustain the disrespectful conduct charge.           PFR File, Tab 1 at 16-17;
     ID at 26-28. The administrative judge sustained this charge because she found
     that the supervisory CBPO’s account describing the appellant’s disrespectful
                                                                                      6

     comments was more credible than the appellant’s account alleging that he did not
     make the disrespectful comments and that the agency proved the essence of this
     specification.   ID at 28.      The appellant has not demonstrated that the
     administrative judge erred in sustaining this charge based upon her well-reasoned
     credibility determinations. Gill v. Department of Defense, 92 M.S.P.R. 23, ¶ 15
     (2002).
¶9         We agree, moreover, with the administrative judge that the appellant failed
     to establish his affirmative defenses. The appellant challenges the administrative
     judge’s finding that he failed to prove his affirmative defenses of EEO retaliation
     and discrimination based on sex and national origin. PFR File, Tab 1 at 19-21;
     ID at 29-41.     The administrative judge found that, other than conclusory
     statements about employees who engaged in misconduct or just general
     statements of disparate treatment, there was no evidence that the appellant was
     treated differently than other employees of a different nationality or who were
     female.   ID at 34, 37.    Additionally, she found that the appellant failed to
     establish his claim of EEO retaliation because he did not prove that anyone
     involved in making the decision to discipline him was aware of his EEO activity.
     ID at 41. Based on our review, we find that the administrative judge correctly
     applied current Board law to analyze these claims and properly found them
     unsupported. See Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42
     (2015). The appellant also has provided no reason to disturb the administrative
     judge’s finding that he failed to establish his claim of harmful procedural error
     based upon an asserted violation of his Weingarten rights 2 because we agree that
     he failed to show that these rights were violated.     PFR File, Tab 1 at 21-22;
     ID at 42-45. We thus discern no reason to reweigh the evidence or substitute our



     2
       See National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975)
     (holding that employees have a right to union representation during investigatory
     interviews).
                                                                                              7

      assessment of the record evidence for that of the administrative judge. 3 Crosby v.
      U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997).
¶10         Lastly, the appellant generally challenges the penalty determination. PFR
      File, Tab 1 at 18-19. The deciding official testified regarding his consideration of
      all of the Douglas factors in imposing the 45-day suspension.             HT at 88-93,
      97-103. Based upon our review of the record, we agree with the administrative
      judge that the 45-day suspension is within the tolerable bounds of reasonableness.
      ID at 48-53; see Grubb v. Department of the Interior, 96 M.S.P.R. 377, ¶ 49
      (2004) (finding that a 45-day suspension was a reasonable penalty for the
      sustained charges of absence without leave, failing to follow leave procedures,
      misrepresenting of facts, unprofessional behavior towards a coworker/team
      leader, and disruptive behavior in the workplace when the appellant had a prior
      disciplinary record of three suspensions within less than 6 months of the
      suspension at issue and the appellant’s failure to recognize that she had done
      anything wrong reflected very poorly on her potential for rehabilitation) ; see also
      O’Lague v. Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 20 (2016)
      (stating that law enforcement officers may be held to a higher standard ); Redfearn
      v. Department of Labor, 58 M.S.P.R. 307, 316 (1993) (finding that an employee’s
      deliberate   refusal   to   follow   supervisory    instructions   constitutes    serious
      misconduct that cannot properly be condoned).




      3
        The appellant asserts that the agency failed to establish a nexus between its action and
      the efficiency of the service. PFR File, Tab 1 at 17-18; ID at 47-48. We disagree
      because the deciding official testified that, as a law enforcement agency responsible for
      crucial safety functions, the agency needs to maintain a strict chain of command in
      which lawful instructions are obeyed, HT at 86-87, and because it is beyond dispute that
      an employee’s failure to follow instructions affects an agency’s abi lity to carry out its
      mission, Cobert v. Miller, 800 F.3d 1340, 1351 (Fed. Cir. 2015).
                                                                                    8

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). Title 5 of
the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).            If you
submit your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

If you submit your request 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, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
                                                                                   9

before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
