                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HEATHER A. BOYD,                                DOCKET NUMBER
                  Appellant,                         SF-0752-15-0128-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: September 10, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Heather A. Boyd, Honolulu, Hawaii, pro se.

           Timothy E. Heinlein, Esquire, San Francisco, 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
     dismissed the appeal for lack of Board jurisdiction based on a finding that the
     appellant violated the terms of a last-chance agreement (LCA). 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the 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 and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        On October 26, 2012, the agency removed the appellant, a Tax Specialist
     for the Internal Revenue Service, on charges of failure to follow a managerial
     directive and failure to properly secure her government-issued laptop computer.
     Initial Appeal File (IAF), Tab 4, Subtabs 4j-4k.      On November 1, 2012, the
     parties signed an LCA mitigating the removal to a 25-day suspension.            Id.,
     Subtab 4i at 1, 4.   The appellant agreed to comply with the conditions of the
     LCA, which included following her manager’s instructions and directives, and
     following all rules of conduct set forth in the agency’s Standards of Ethical
     Conduct.   Id. at 1-2.   She agreed that if she violated any of these conditions
     within the next 2 years the agency could summarily terminate her employment.
     Id. at 2. She waived her right to appeal both the procedures used to carry out and
     the merits of any termination action taken under the agreement, except that she
     retained the right to appeal to the Board to challenge whether she breached the
     terms of the agreement.     Id.   The waiver applied even if the agency delayed
     implementing a termination action for misconduct committed during the term of
     the agreement until after the 2-year term ended. Id. at 3. The appellant retained
     the right to raise claims of discrimination and retaliation through the agency’s
                                                                                              3

     equal employment opportunity (EEO) process, unless she asserted those claims in
     conjunction with a Board appeal challenging whether she had breached the
     conditions of the LCA. Id. at 2.
¶3         Less than a month before the 2-year period was to end, the appellant was
     involved in two incidents that the agency alleged violated the terms of the
     LCA. IAF, Tab 4, Subtab 4b. First, during a conversation with the vice president
     of her union chapter, V.L., the appellant stated that she “uncontrollably” and
     “recklessly” hated the chapter president, J.B., and would “go Jihad all over her” if
     J.B. did not step down.        Id. at 1; id., Subtab 4c.      Second, a day after her
     supervisor advised the appellant “against taking on other peoples[’] issues,” the
     appellant emailed another agency supervisor saying that she believed a coworker
     was being racially harassed. Id., Subtab 4b at 1, Subtabs 4e-4f. Based on these
     incidents, the agency terminated her employment.             Id., Subtab 4b at 1.     She
     appealed the termination.        IAF, Tab 2.       The administrative judge held a
     jurisdictional hearing on February 13, 2015, and the record closed at the end of
     the hearing. Hearing Compact Disc (HCD) 2 (closing). The administrative judge
     found that the appellant violated the terms of the LCA and that the appeal thus
     did not fall within the Board’s jurisdiction. IAF, Tab 21, Initial Decision (ID)
     at 4-9.
¶4         The appellant has filed a petition for review. 2 Petition for Review (PFR)
     File, Tab 2.   On review, she contends that the administrative judge excluded
     witnesses whose testimony would have proven that the LCA was based upon
     fraud and that she was in full compliance with that agreement.                   Id. at 1.
     Administrative judges have wide discretion under 5 C.F.R. § 1201.41(b)(8), (10)
     to exclude witnesses where it has not been shown that their testimony would be


     2
       The filing period for the petition for review ended on April 6, 2015. ID at 9. The
     appellant filed the petition for review by U.S. mail on April 8, 2015. PFR File, Tab 2.
     Nevertheless, the petition is timely because she filed a partial petition by facsimile with
     the Office of the Clerk of the Board on April 6, 2015. PFR File, Tabs 1, 3.
                                                                                        4

     relevant,     material,   and      nonrepetitious.      Franco   v.    U.S.   Postal
     Service, 27 M.S.P.R. 322, 325 (1985). The administrative judge here excluded
     witnesses requested by both the appellant and the agency during the prehearing
     conference because he found that “their testimony would be cumulative or on
     matters that are undisputed or irrelevant to the issues” in the appeal. IAF, Tab 16
     at 5. He summarized his rationale for excluding certain proffered witnesses in the
     summary of the prehearing conference. Id. He stated that he would consider
     allowing parties to call specific proffered witnesses on rebuttal. Id. As for some
     witnesses that the appellant requested, he explained that her brief proffers did not
     show that their testimony, or the matters that they would address, would be
     relevant to the appeal.      Id.    The appellant did not object to the prehearing
     conference summary, even though she was given an opportunity to do so. Id.
     at 7.   In any event, she also has not identified any specific witness that was
     excluded over her objections. Her argument is thus unavailing.
¶5           The appellant also contends that the administrative judge failed to admit her
     timely submitted evidence. Administrative judges have broad discretion to allow
     or disallow a party’s proposed exhibits.             Vaughn v. Department of the
     Treasury, 119 M.S.P.R. 605, ¶ 14 (2013).             The administrative judge here
     explained during the prehearing conference that several of the exhibits the
     appellant had submitted were of poor quality, and he invited her to tender cleaner
     copies of these exhibits before the hearing. ID at 3; IAF, Tab 16 at 5-6. On the
     morning of the hearing, the appellant presented several pages of documents. IAF,
     Tab 17. The administrative judge found that the items were not cleaner copies of
     previously submitted exhibits, but were instead new exhibits.          ID at 3.   He
     rejected the exhibits because she failed to show good cause for submitting them
     after the deadline for prehearing submissions. See IAF, Tab 7 at 2. He noted,
                                                                                           5

     however, that had he accepted these documents, they would not have changed his
     findings. 3 ID at 3.
¶6         The appellant takes issue with the agency’s characterization of events in her
     termination letter, explaining that the letter does not agree with the source
     documents that the agency provided, see PFR File, Tab 2 at 7, 10, and she did not
     commit the misconduct described in the letter, see id. at 1, 4-6. Regarding the
     first instance of misconduct, the appellant argues that the agency management
     “could not cite any source of law, policies, or procedures that gave them authority
     to act” regarding the comment she made about “go[ing] jihad” against
     J.B. Id. at 2. She argues that she made the comment while she was acting in the
     role of a union member, and not as an employee. Id. She argues that she made
     the comment not to her fellow employees, but to union representatives, whom she
     assumed were representing her interests. Id. at 2-5. She claims that she made the
     comments after her tour of duty ended and outside of the workplace. Id. at 5.
     She asserts that she had a reasonable expectation that the pertinent conversations
     were confidential, and any discord arising from her remarks resulted from the
     breach of confidentiality.       Id. at 5-6.   She further asserts that the agency
     should not have been allowed to rely upon email correspondence from the union
     documenting her conduct, and instead, it should have conducted an independent
     investigation. Id. at 2, 9-12.

     3
       The appellant supplied several documents with her petition for review, including some
     of the documents she submitted after the prehearing conference. Compare PFR File,
     Tab 2 at 14-19, with IAF, Tab 17 at 2-5, 7-8. These items duplicate documents already
     in the record and cannot be considered to be a basis for review. See Avansino v. U.S.
     Postal Service, 3 M.S.P.R. 211, 214 (1980) (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 was closed despite the party’s due diligence); Meier v.
     Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (evidence that is already a part
     of the record is not new). For the same reason, another item submitted with the petition
     for review, the index to the agency file, cannot be considered new evidence. Compare
     PFR File, Tab 2 at 13, with IAF, Tab 4 at 3. The remaining items submitted on review
     cannot be considered new because they were available to the appellant before the record
     closed below. See PFR File, Tab 2 at 20-34.
                                                                                     6

¶7         The appellant’s arguments notwithstanding, the record supports the
     administrative judge’s findings. In the proceedings below, she did not dispute
     that the conversation in question took place on agency premises, and that she
     initiated it during her tour of duty. See HCD 2 (testimony of appellant); see also
     HCD 1 (testimony of V.L.). The union officials participating were fellow agency
     employees, and not outsiders. We find, for reasons similar to those set forth in
     Berkner v. Department of Commerce, 116 M.S.P.R. 277, ¶¶ 6-15 (2011), that her
     remarks cannot be deemed privileged.      As in Berkner, the union reported the
     appellant’s inflammatory remarks to the agency because its officials believed that
     she   might    present   a   danger.         IAF,   Tab 4,   Subtabs 4c-4d;   see
     Berkner, 116 M.S.P.R. 277, ¶¶ 2, 9, 11.
¶8         The appellant also asserts that her remarks were intended as hyperbole, and
     that V.L. seemed to understand the exaggerated nature of the remarks during the
     conversation. PFR File, Tab 2 at 6, 10-11.     She further asserts that agency and
     union officials misunderstood the meaning of the word “jihad” and assumed that
     she intended to harm J.B. Id. at 4-6, 10-11. She argues that it was unreasonable
     for J.B. to fear her. Id. at 4, 10. Although the appellant may now contend that
     the word “jihad” described her internal “spiritual struggle … against sin,” PFR
     File, Tab 2 at 4, 24, the context in which she used the word, coupled with her
     expression of hatred towards J.B. and her demand that J.B. step down, suggests
     that she intended to convey a more commonly understood definition of the word.”
     In such case, it was reasonable for V.L to discern a threat, for J.B. to feel
     threatened, and for the agency to conclude that the statements fell within the
     scope of misconduct that causes dissension or discord. See IAF, Tab 4, Subtab 4i
     at 2, Subtab 4t at 27. The appellant’s arguments on review are insufficient to
     prove otherwise. See Willis v. Department of Defense, 105 M.S.P.R. 466, ¶ 17
     (2007) (finding that the appellant bears the burden of proving that the Board
     should not enforce her waiver of appeal rights in an LCA).
                                                                                        7

¶9            As for the second instance of misconduct, the email message she sent to
      another agency employee after she was instructed not to participate in office
      gossip, see IAF, Tab 4, Subtab 4b at 1, the appellant argues that her conduct was
      proper, PFR File, Tab 2 at 3. She explains that J.B. had used a Hawaiian racial
      slur offensive to Caucasians, and management had taken no action when she
      reported the matter.       Id. at 3.   The appellant, who is Caucasian, additionally
      alleges that she had felt physically intimidated and harassed by non-Caucasian
      employees, and she had sought out assistance from both union and EEO
      personnel. Id. The administrative judge did not address this issue, finding that
      only one instance of misconduct was sufficient to support the agency’s charge
      that the appellant had violated the terms of the LCA. ID at 5. We agree. In any
      event, the record would support a finding that the appellant violated the terms of
      the LCA when she failed to follow her supervisor’s instruction to refrain from
      “taking on other peoples[’] issues.” IAF, Tab 4, Subtabs 4e, 4f; see id., Subtab 4i
      at 2.
¶10           The appellant also asserts that she “did not knowingly enter into the LCA[,]
      and the LCA is based upon fraud.” PFR File, Tab 2 at 8. She explains that she
      communicated to the agency that she believed management was acting in reprisal
      for whistleblowing when the agency took the disciplinary action underlying the
      LCA. Id. at 8-9. She avers that she “had no understanding of the basis for the
      [underlying] disciplinary action,” and that “management had refused to respond
      to [her] multiple inquiries in regards to the nature of” that action. Id. She also
      avers that V.L. “suppressed” her inquiries regarding the underlying disciplinary
      action. Id. at 9. She argues that she signed the LCA because she was not healthy
      enough to face a disciplinary action after being hospitalized for “potentially fatal
      cardiac events.” Id.
¶11           The appellant has offered no evidence of fraud, such as proof that the
      agency knowingly concealed a material fact or intentionally misled her regarding
      the     terms   of   the     LCA.        See   Armstrong v.   Department    of   the
                                                                                     8

Treasury, 110 M.S.P.R. 533, ¶ 18 (2009) (citing Harris v. Department of
Veterans Affairs, 142 F.3d 1463, 1468 (Fed. Cir. 1998)), aff’d in part, vacated in
part, 591 F.3d 1358 (Fed. Cir. 2010). Although the appellant testified that she
signed the agreement unwillingly and now regrets doing so, she also testified that
she understood her options at the time. HCD 2 (testimony of appellant). The
record shows that she negotiated the LCA with union assistance, see IAF, Tab 4,
Subtab 4i at 4; HCD 1 (testimony of V.L.), and that she received information
regarding her appeal rights during the 2012 action, including her option to file a
Board appeal, EEO complaint, or grievance, see IAF, Tab 4, Subtab 4j at 2-3.
Accordingly, we affirm the initial decision. 4

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the
United States 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


4
  The appellant requested leave to file two additional pleadings after the record on
review closed. PFR File, Tab 6. These pleadings are an unemployment compensation
decision issued by the State of Hawaii on May 15, 2015, and a copy of the agency’s
Anti-Harassment Policy dated May 1, 2015. Id. Such pleadings are not normally
accepted unless they contain new and material evidence as defined in 5 C.F.R.
§ 1201.115(d), and the party submitting them shows that the evidence or argument
was not readily available before the record closed. 5 C.F.R. § 1201.114(k). The
appellant has not met that standard, and we thus deny her request. Avansino,
3 M.S.P.R. at 214; see also 5 C.F.R. § 1201.114(b) (“Any petition or cross petition for
review that contains new evidence or argument must include an explanation of why the
evidence or argument was not presented before the record below closed.”); see
Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989) (to constitute
new and material evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when the
record closed).
                                                                                    9

      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         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
United States 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.
