                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
