                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHEILA BOWE-CONNOR,                             DOCKET NUMBER
                  Appellant,                         DC-0752-13-0668-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 20, 2015
       AFFAIRS,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Sheila Bowe-Connor, Laurel, Maryland, pro se.

           Julie Rebecca Zimmer, Baltimore, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, and based on the following points and authorities, 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.     Except as
     expressly MODIFIED by this Final Order, we AFFIRM the initial decision.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶2            The agency removed the appellant from her position as a Clinical
     Pharmacist based upon charges of causing a delay in patients receiving
     medications, conduct unbecoming, and disrespectful conduct. Initial Appeal File
     (IAF), Tab 6 at 12-17.      The appellant appealed the removal, arguing that the
     charges were untimely, that the agency failed to properly investigate the charges,
     and that the agency failed to consider evidence disproving the charges.       IAF,
     Tab 1 at 6.      After holding a hearing, the administrative judge sustained the
     removal and found that the appellant did not establish her affirmative defense of
     harmful procedural error. IAF, Tab 19, Initial Decision (ID).
¶3            The appellant has petitioned for review, challenging the administrative
     judge’s findings as to the charges, reiterating claims of a disparate penalty,
     disagreeing with the administrative judge’s evidentiary determinations, alleging
     bias on the part of the administrative judge, and asserting harmful procedural
     error.     Petition for Review (PFR) File, Tab 1 at 2, 7-14.     She also submits
     evidence that she argues is new and material.      Id. at 7, 16-28.   Finally, the
     appellant appears to raise, for the first time on review, affirmative defenses of
                                                                                          3

     reprisal based upon prior equal employment opportunity (EEO) activity and
     disability discrimination. Id. at 9, 13-14. The agency responds in opposition.
     PFR File, Tab 7. In reply, the appellant submits additional evidence that she
     argues is new and material. PFR File, Tab 8 at 5, 9.
¶4         As a preliminary matter, we have considered the evidence that the appellant
     submits for the first time on review and find that this evidence is not new and
     material.     See 5 C.F.R. § 1201.115(d).   The Board will not consider evidence
     submitted for the first time with the petition for review absent a showing that it
     was unavailable before the record closed despite the party’s due diligence. Davis
     v. Department of Commerce, 120 M.S.P.R. 34, ¶ 16 (2013). Regarding most of
     the evidence that the appellant submits, she has not shown that the evidence was
     unavailable despite her due diligence and we therefore do not consider this
     evidence. See PFR File, Tab 1 at 16-21. We also do not consider the appellant’s
     evidence regarding a charge made by a fellow employee against one of the
     appellant’s supervisors, PFR File, Tab 8 at 9, because evidence offered merely to
     impeach a witness’s credibility is not generally considered new and material, see
     Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 18 (2014). Lastly,
     concerning the submitted testimony from the appellant’s EEO case, although the
     document itself may not have been available to the appellant until after the
     hearing, see PFR File, Tab 7, it merely reflects her past history of filing EEO
     cases and her supervisor’s knowledge of this history. It does not contain any new
     evidence. 2     See 5 C.F.R. § 1201.115(d) (to constitute new evidence, the

     2
       The appellant alleges that the administrative judge denied her submission of evidence
     related to disparate treatment. PFR File, Tab 1 at 2-3. Although it is unclear from the
     Hearing Compact Disc (HCD) to what evidence the appellant refers, we find that any
     such denial is harmless error because the appellant has not stated how the evidence
     would have affected the merits of her case. See Reeves v. U.S. Postal Service,
     117 M.S.P.R. 201, ¶ 12 (2012), overruled on other grounds by Boucher v. U.S. Postal
     Service, 118 M.S.P.R. 640, ¶ 20 n.4 (2012) (in order to obtain reversal of an initial
     decision on the ground that the administrative judge abused her discretion in excluding
     evidence, the petitioning party must show on review that relevant evidence, which
     could have affected the outcome, was disallowed).
                                                                                        4

     information contained in the documents, not just the documents themselves, must
     have been unavailable despite due diligence when the record closed).
¶5        When taking an adverse action against an employee, an agency must
     establish that: (1) the charged conduct occurred; (2) a nexus exists between the
     conduct and the efficiency of the service; and (3) the particular penalty imposed
     is reasonable. Crawford-Graham v. Department of Veterans Affairs, 99 M.S.P.R.
     389, ¶ 16 (2005) (citing 5 U.S.C. §§ 7701(c)(1)(B), 7513(a)). For a charge to be
     sustained, an agency must prove all of the elements of the charge by a
     preponderance of the evidence. 3 Id., ¶ 17 (citing Burroughs v. Department of the
     Army, 918 F.2d 170, 172 (Fed. Cir. 1990)).
     The administrative judge properly sustained the charges.

¶6        As to the charge of causing a delay in patients receiving medications, the
     administrative judge sustained the charge because she found that the appellant did
     not deny that her failure to answer the phones in the pharmacy delayed the
     dispensing of medications to patients in the surgical intensive care unit (SICU)
     (which was the only specification of the charge) and that the record is undisputed
     that the appellant caused the delay.      ID at 3; see IAF, Tab 6 at 27.         The
     administrative judge considered the appellant’s explanations that the pharmacy
     was extremely busy, that the phones were ringing frequently, and that when the
     nursing supervisor observed a phone off the hook, it was because the appellant
     had been speaking to a customer. ID at 3; HCD 2; HCD 3. However, the record
     is undisputed that the SICU nurses had tried to call the pharmacy for several
     hours before the medications they needed were finally dispensed. ID at 3. We
     therefore agree with the administrative judge that the agency proved its first
     charge.


     3
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
                                                                                          5

¶7         We also sustain the charge of conduct unbecoming. 4 To prove a charge of
     conduct unbecoming a federal employee, an agency is required to demonstrate
     that the appellant engaged in the underlying conduct alleged in support of the
     broad label.   Scheffler v. Department of Army, 117 M.S.P.R. 499, ¶ 4 (2012),
     aff’d, 522 F. App’x 913 (Fed. Cir. 2013). In this case, the agency charged that
     the appellant responded to a call from another pharmacist regarding the urgent
     need for a medication which had been requested an hour earlier for an unstable
     critically ill patient in the SICU.     When the SICU pharmacist requested the
     medication “STAT,” the appellant responded by saying that he should not be
     requesting orders “STAT” and continued to argue with him. IAF, Tab 6 at 27-28.
     The appellant does not dispute that this interchange occurred, but rather contends
     that, regardless, she timely filled the prescription.       PFR File, Tab 1 at 3.
     However, the SICU pharmacist testified that, rather than continue to argue with
     the appellant over the phone, he had to leave the SICU, go to the pharmacy and
     prepare the medication himself, and bring it to the patient in the SICU.           The
     administrative judge found the SICU pharmacist’s testimony more credible than
     the appellant’s and sustained the charge of conduct unbecoming.           We find no
     error in the administrative judge’s credibility determination and thus find that the
     agency proved the second charge.
¶8         We also sustain the charge of disrespectful conduct. See IAF, Tab 6 at 28.
     In sustaining the charge, the administrative judge considered that the appellant
     did not deny the charge in either her written reply to the proposed removal or her
     hearing testimony. ID at 6; see IAF, Tab 6 at 23-24; see also HCD 3. She also
     credited the testimony of the appellant’s supervisors that the appellant engaged in
     the charged conduct. ID at 6. We see no reason to disturb the administrative
     judge’s credibility determinations or her finding sustaining the charge.           See

     4
        Although the agency’s proposal notice included four specifications of conduct
     unbecoming, IAF, Tab 6 at 27-28, the deciding official only sustained one specification
     of the charge, id. at 13.
                                                                                           6

      Haebe v. Department of Justice, 288 F.3d 1288, 1301-02 (Fed. Cir. 2002) (the
      Board must give deference to an administrative judge’s credibility determinations
      when they are based, explicitly or implicitly, on the observation of the demeanor
      of witnesses at the hearing; the Board may overturn such determinations only
      when it has “sufficiently sound” reasons for doing so).
      There is a nexus between the charged conduct and the efficiency of the service.

¶9          The deciding official testified concerning the importance of patient safety
      and that the appellant’s return to the pharmacy could cause delays in dispensing
      medications.   HCD 1.      We therefore find that a nexus has been established
      because the testimony supports the conclusion that the appellant’s conduct
      interfered with the agency’s mission. See Williams v. Department of Veterans
      Affairs, 65 M.S.P.R. 612, 614-15 (1994) (affirming the administrative judge’s
      finding of nexus where the appellant’s negligence in failing to properly install
      filters used for surgical instruments could have endangered patient safety and
      caused additional delay and cost to the agency), aff’d, 69 F.3d 554 (Fed. Cir.
      1995) (Table). 5
      The administrative judge appropriately sustained the penalty of removal.

¶10         Where, as here, all of the agency’s charges have been sustained, the Board
      will review the agency-imposed penalty only to determine if the agency
      considered all of the relevant Douglas factors and exercised management
      discretion within the tolerable limits of reasonableness.           See Woebcke v.
      Department of Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010). 6 The deciding

      5
        To the extent that the administrative judge did not clearly address the nexus between
      the charged conduct and the efficiency of the service, we find that this error is
      harmless. See Bernal v. Department of the Air Force, 21 M.S.P.R. 283, 284 (1984)
      (finding that presiding official’s failure to address nexus was not prejudicial error
      where the Board found that nexus was established by preponderant evidence).
      6
        In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
      articulated a nonexhaustive list of twelve factors that are relevant in assessing the
      penalty to be imposed for an act of misconduct.
                                                                                        7

      official’s testimony reflects that he considered all of the Douglas factors and
      checked off those factors on the Douglas factors worksheet that he found were
      most applicable to the appellant’s case.       HCD 1; see IAF, Tab 6 at 16.
      Additionally, the deciding official’s testimony reflects that in considering several
      of the Douglas factors, he emphasized the necessity of the removal because of the
      appellant’s past history of, and potential for interfering with, safely caring for
      patients.   HCD 1.    We therefore see no reason to disturb the administrative
      judge’s finding that the removal penalty was warranted in this case.
¶11         The appellant argues that the administrative judge did not consider her
      evidence of disparate penalties.    PFR File, Tab 1 at 2-3.      In sustaining the
      removal, the administrative judge found that the appellant claimed that she was
      subjected to a disparate penalty but did not identify any “allegedly comparable
      employee who had not been disciplined as harshly for similar conduct.” ID at 7.
      Contrary to the initial decision, however, the appellant did identify two alleged
      comparators who were suspended for 10 days for engaging in physical and verbal
      altercations.   IAF, Tab 14 at 22-29.    The appellant argued that, unlike these
      employees, she was not involved in a physical or verbal altercation. Id. at 5. She
      also testified that another pharmacist made inappropriate comments but was not
      disciplined. HCD 3. Because the administrative judge did not fully address the
      appellant’s claim of disparate penalties, we MODIFY the initial decision to
      address this issue, nonetheless finding that the appellant has not met her burden
      concerning her disparate penalties claim.      See McNab v. Department of the
      Army, 121 M.S.P.R. 661, ¶¶ 10-11 (2014).
¶12         To establish disparate penalties, the appellant must show that there is
      enough similarity between both the nature of the misconduct and the other factors
      to lead a reasonable person to conclude that the agency treated similarly-situated
      employees differently. Lewis v. Department of Veterans Affairs, 113 M.S.P.R.
      657, ¶ 15 (2010). An appellant does not demonstrate disparate penalties when an
      alleged comparator engaged in similar conduct regarding only some of the
                                                                                            8

      charges for    which    she   was   disciplined.     Reid v. Department of the
      Navy, 118 M.S.P.R. 396, ¶ 22 (2012).         In this case, even though two of the
      comparators engaged in an altercation and the appellant alleges that another
      comparator made inappropriate comments, there is certainly no evidence that they
      engaged in conduct consistent with the charge of causing a delay in patient
      medications. We find that the appellant has not described any comparators with a
      history of similar misconduct as to all of the charges against her. These alleged
      comparators therefore do not demonstrate that the appellant was subjected to a
      disparate penalty. Id. Additionally, the appellant has not established a similarity
      between her history of discipline and that of the other employees. In particular,
      we note that the appellant has a history of previous discipline that includes
      suspensions for conduct involving altercations and violence. IAF, Tab 6 at 62-71.
      There is no evidence that the alleged comparators had such a history.              The
      appellant has therefore not established that she was subjected to a disparate
      penalty. See Lewis, 113 M.S.P.R. 657, ¶ 15.
      The appellant has not established her affirmative defense of harmful procedural
      error through violation of the collective bargaining agreement.
¶13         On review, the appellant alleges, as she did below, that the agency
      committed harmful procedural error by violating the collective bargaining
      agreement when it failed to provide her with supervisory notes and reports of
      contact until she received the proposed removal. 7 PFR File, Tab 1 at 13, Tab 8
      at 5. Concerning the alleged violations of a collective bargaining agreement, the
      Board applies the harmful error standard.               LeBlanc v. Department of
      Transportation, 60 M.S.P.R. 405, 417 (1994), aff’d, 53 F.3d 436 (Fed. Cir. 1995)
      (Table).   In order to show harmful error, the appellant must prove that any
      procedural error was likely to have caused the agency to reach a conclusion

      7
        On review, the appellant has not challenged the administrative judge’s findings on her
      assertions below of harmful error due to timeliness of the charges or failure to
      investigate. See ID at 7-9. Regardless, we find that the record does not establish
      harmful error on these bases. See LeBlanc, 60 M.S.P.R. 405, 417.
                                                                                         9

      different from the one it would have reached in the absence or cure of the error.
      Rawls v. U.S. Postal Service, 94 M.S.P.R. 614, ¶ 23 (2003), aff’d, 129 F. App’x
      628 (Fed. Cir. 2005). Although the appellant vaguely asserted at the hearing that
      her ability to view these documents may have changed the result in this case, see
      HCD 3, we do not find that this failure by the agency caused it to reach a
      different conclusion than it otherwise would have. We therefore find that the
      appellant failed to establish harmful procedural error.
      The Board does not consider the affirmative defenses of disability discrimination
      and reprisal to the extent that the appellant asserts these defenses.
¶14        On review, the appellant appears to raise affirmative defenses of disability
      discrimination and reprisal. PFR File, Tab 1 at 9-10, 13-14. In particular, she
      alleges that the agency has ignored her disability status and recommended
      accommodations. See id. at 9. The appellant also testified at the hearing that she
      is disabled. HCD 3. With respect to reprisal, the appellant testified that her
      supervisor stated that, if she filed any lawsuits, she would be sorry. Id. Here, the
      appellant, who was represented by a union steward (who is an attorney), raised
      the affirmative defense of harmful procedural error below.       IAF, Tab 1 at 6,
      Tab 14 at 6-7, Tab 17 at 1. In two hearing orders, the appellant was notified that,
      absent good cause, she would be limited to the facts and issues (including
      affirmative defenses) identified in her prehearing submissions in presenting
      evidence at the hearing. IAF, Tabs 4, 10. The appellant, however, did not raise
      the affirmative defenses of disability discrimination or reprisal. The Board will
      not consider an argument raised for the first time in a petition for review absent a
      showing that it is based on new and material evidence not previously available
      despite   the   party's   due   diligence.   Banks   v.   Department   of   the   Air
      Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not offered such evidence
      and instead attempts to reframe prior allegations as retaliation and disability
      discrimination. Therefore, to the extent that the appellant again raises these as
      affirmative defenses, we do not consider them.
                                                                                            10

      The appellant has not shown bias.

¶15        The appellant alleges that the administrative judge showed bias against her.
      PFR File, Tab 1 at 11. In making a claim of bias or prejudice, the appellant must
      overcome    the   presumption      of   honesty   and    integrity   that   accompanies
      administrative     adjudicators.        Asatov    v.     Agency      for    International
      Development, 119 M.S.P.R. 692, ¶ 13 (2013).             Specifically, an administrative
      judge’s honest appraisal of the appellant’s case does not constitute bias.
      Galloway v. Department of Agriculture, 110 M.S.P.R. 311, ¶ 13 (2008).                  In
      addition to alleging bias on the basis of the administrative judge’s factual
      determinations, the appellant states that the administrative judge commented off
      the record that the appellant should apply for disability retirement. PFR File, Tab
      1 at 11. The appellant also makes a vague allegation of bias based upon her
      religious background.     PFR File, Tab 8 at 6.          We find that the appellant’s
      allegations do not meet the legal standard for establishing that the administrative
      judge was biased against her or her case.

                        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). See 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:
                                                                                   11

                             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
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
                                                                       12

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                       ______________________________
                                     William D. Spencer
                                     Clerk of the Board
Washington, D.C.
