                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     WINFRED SHEPARD,                                DOCKET NUMBER
                  Appellant,                         CH-0752-13-4055-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: February 25, 2015
       AFFAIRS,
                 Agency.



               THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Ariel E. Solomon, Esquire, Albany, New York, for the appellant.

           Gina M. Ozelie, Esquire, Milwaukee, Wisconsin, 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 his removal based on a charge of careless or negligent performance of
     duties.   Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     on an erroneous 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. Except as expressly modified by
     this Final Order to address the medical evidence presented at the hearing, we
     AFFIRM the initial decision.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant worked as a Field Examiner based in the agency’s
     Milwaukee, Wisconsin hub office. Initial Appeal File (IAF), Tab 6 at 20. The
     appellant worked out of his home and spent most of his time in the field
     conducting field examinations.    IAF, Tab 16 at 11. A field examination may
     involve a home visit to verify the welfare of individuals who received Veterans
     Administration benefits and were declared incompetent due to legal disability,
     mental disability, physical disability, or minority, and to ensure the adequacy of
     living conditions. IAF, Tab 6 at 184.
¶3         In March 2013, the fiduciary for a veteran contacted the agency regarding a
     letter he received from the agency.      Id. at 100.    The agency representative
     informed the fiduciary that a field exam on file stated that the appellant had
     recently visited the veteran and spoken to the fiduciary by phone the same day.
     Id.   The fiduciary informed the representative that on the date alleged the
     appellant had not spoken with him or visited the veteran.         Id.   The agency
                                                                                             3

     subsequently interviewed the appellant, and he admitted that he had completed
     reports documenting visits with veterans whom he had not personally seen. Id. at
     70. The agency then proposed to remove the appellant based on two charges:
     careless or negligent performance of duty and unauthorized use of government
     property. Id. at 51-53. The charge of careless or negligent performance of duty
     contained four specifications, each specification a separate incident where the
     appellant was alleged to have conducted a field visit but did not. Id. at 51-52.
     The appellant provided both written and oral replies to the deciding official on
     the charges.     Id. at 36-41.     The deciding official sustained only the four
     specifications of the careless or negligent performance of duties charge; he did
     not sustain the unauthorized use of government property charge. 2 Id. at 22-24.
     Based on the sustained charge and consideration of the mitigating and
     aggravating factors, the deciding official directed the appellant’s removal
     effective July 17, 2013. Id.
¶4           The appellant initiated a Board appeal challenging his removal. IAF, Tab 1
     at 3.    During the pre-hearing conference, the appellant also alleged two due
     process violations by the agency. IAF, Tab 18 at 3. The appellant alleged that
     the deciding official sustained the charge based on the appellant’s intent to falsify
     documents and not negligence. Id. The appellant also alleged that he did not
     receive all of the agency’s documents considered in his removal process. Id. The
     administrative judge conducted a hearing and issued an initial decision which
     sustained the agency’s removal action. IAF, Tab 32, Initial Decision (ID) at 1,
     15. She found that the agency proved that the appellant engaged in careless or
     negligent performance of his job duties. ID at 7-8. She found that the appellant’s

     2
       The charge brought by the agency is listed as careless or negligent performance of
     duty in the proposal notice, but listed as careless and negligent performance of duties in
     the decision letter. IAF, Tab 6 at 22, 51. The administrative judge also uses both terms
     in her in itial decision. ID at 1, 3. We find that the agency proved its charge under
     either wording and will reference the charge as careless or negligent performance in th is
     decision.
                                                                                       4

     failure to conduct the site visits prevented the appellant from determining whether
     the beneficiaries’ welfare needs were being met, placing the four individuals at
     risk. ID at 5-6. The administrative judge also found no due process violation or
     harmful error, as the deciding official did not remove the appellant based on his
     intent to falsify documents but due to his careless or negligent failure to conduct
     the site visits. ID at 8-9, 12-13. Finally, she found that the penalty of removal
     was within the range of reasonableness based on the deciding official’s proper
     consideration of the Douglas factors.      ID at 14-15; see Douglas v. Veterans
     Administration, 5 M.S.P.R. 280, 305-06 (1981).
¶5          The appellant has filed a timely petition for review and submits a record of
     his glucose readings for the period of February to April 2013.          Petition for
     Review (PFR) File, Tab 1 at 9-11. The agency has responded in opposition to the
     petition for review.   PFR File, Tab 3.     The appellant has filed a reply to the
     agency’s response, but the agency has filed a motion to strike the reply, alleging
     that the reply exceeds the scope of the petition for review and its response. PFR
     File, Tab 6, Tab 7 at 4.

     The deciding official properly considered the appellant’s medical condition as a
     mitigating factor.
¶6          The appellant has not contested the administrative judge’s decision to
     sustain the charge, and we decline to disturb this well-reasoned finding on
     review. See 5 C.F.R. § 1201.115 (the Board normally will consider only issues
     raised in a timely petition for review or cross petition for review).
¶7          The appellant argues that the deciding official did not give sufficient
     consideration to his diabetes as a potential mitigating factor. PFR File, Tab 1 at
     4-5.    The deciding official testified at the hearing that he considered the
     appellant’s medical condition, but the medical condition did not provide a reason
     for not making the field visits. Hearing Transcript (HT) at 100-01. The appellant
     provided the deciding official with little information as to his medical condition
     or how it affected his decision to submit false field examination reports. In his
                                                                                              5

     oral reply, the appellant noted that his diabetes required him to take medications
     that caused stomach problems.         IAF, Tab 6 at 36.       In his written reply, the
     appellant commented that a number of personal issues and his diabetes “heading
     in the wrong direction” were evidence of a need for assistance. Id. at 38. These
     responses included no medical documentation and provided the deciding official
     with little to consider regarding how the medical condition affected the charged
     behavior.    In addition, the appellant testified at the hearing that he had not
     previously informed his supervisor that he had diabetes. HT at 214. The notice
     of proposed removal advised the appellant that he had the opportunity to “submit
     affidavits and other documentary evidence in support of your reply, showing why
     the charge(s) is (are) unfounded and any other reasons why your removal should
     not be effected.”     IAF, Tab 6 at 53.       The appellant argues that his doctor’s
     testimony shows that his medical condition caused confusion and that should have
     led to the agency requesting additional evidence. PFR File, Tab 1 at 4. However,
     the evidence cited by the appellant was not available to the deciding official
     because the appellant did not share it. Given the minimal information provided to
     the deciding official and the deciding official’s testimony that he did consider the
     information, we find the appellant has not shown that the deciding official failed
     to consider any of the information provided in either his oral or written reply. 3

     The penalty of removal is reasonable based on the agency’s proven charge.
¶8         The appellant again argues on review that his penalty should be mitigated
     based on his medical condition. Id. at 6. He alleges that the medical testimony
     provided at the hearing supports his claim that his medical condition played a role
     in his actions. Id. at 4. The weight to be given an employee’s medical condition


     3
       In addition to proving the charge against the appellant, the agency must show that the
     action taken promoted the efficiency of the service. 5 U.S.C. § 7513(a). The
     administrative judge found the agency’s decision to remove the appellant promoted the
     efficiency of the service, and the appellant has not challenged th is findin g. ID at 7. We
     see no basis for disturbing this well-reasoned finding on review.
                                                                                            6

      necessarily depends on whether that condition played a part in the charged
      conduct. Roseman v. Department of the Treasury, 76 M.S.P.R. 334, 345 (1997).
      Although the deciding official did not have this information available to him at
      the time of his decision, the information is now before the Board.               The
      administrative judge should have addressed this new information in her initial
      decision when reviewing the agency’s penalty determination.         See Spithaler v.
      Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (an initial decision
      must identify all material issues of fact and law, summarize the evidence, resolve
      issues of credibility, and include the administrative judge’s conclusions of law
      and his legal reasoning, as well as the authorities on which that reasoning rests).
¶9         At the hearing, the appellant’s doctor testified that in July 2013, the
      appellant’s blood sugar level was dangerously high. HT at 151-53. He stated that
      at that level that it could cause lethargy and have an effect on concentration and
      memory. HT at 151-52. The doctor stated that the July appointment was the first
      time he saw the appellant in 2013. HT at 153-54. The doctor also testified that in
      his opinion the appellant’s blood sugar could not have been out of control for
      longer than a month or else he would have had more symptoms. HT at 155. The
      field examination reports were submitted in February and March 2013, over 4
      months before the appellant saw the doctor. IAF, Tab 6 at 22-23; HT at 153.
      Based on the physician’s testimony, we find that the appellant’s diabetes was
      likely under control during the period of time when he filed the false field
      examination reports.      Therefore, although we afford consideration to the
      appellant’s medical condition, we find, based on our review, that he has not
      shown that it is deserving of significant consideration as a mitigating factor
      because it did not play a part in the charged misconduct.
¶10        Where, as here, all of 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 factors and exercised management discretion within
      tolerable limits of reasonableness. See Douglas, 5 M.S.P.R. at 306. The Board’s
                                                                                        7

      function in this regard is not to displace management’s responsibility but to
      assure that managerial judgment has been properly exercised.       Id. at 302.    In
      evaluating a penalty, the Board will consider, first and foremost, the nature and
      seriousness of the misconduct and its relationship to the employee’s duties,
      position,   and   responsibilities.    Gaines    v.   Department     of   the    Air
      Force, 94 M.S.P.R. 527, ¶ 9 (2003).     As the administrative judge noted in her
      initial decision, the primary duty of a field examiner is to conduct field
      examinations. ID at 15. Here, on multiple occasions the appellant admittedly
      failed to perform the key duty of his job. ID at 15. The deciding official noted in
      his Douglas factor analysis that there were no similar cases of field examiners
      claiming to make visits that were not done, but other positions where credit was
      taken for work not performed resulted in removal from the agency. IAF, Tab 6 at
      32. The appellant had no disciplinary history, good performance reviews, and
      over 20 years of federal service. Id. at 31. However, the appellant had been
      trained on conducting field examinations, and the field examiners are independent
      and work remotely with minimal supervision. Id. at 31-32. Finally, given the
      nature of the appellant’s job, falsely reporting a visit could endanger the safety
      and well-being of a beneficiary, individuals who have been held to be
      incompetent or disabled. Id. at 30. Therefore, we find that the agency’s decision
      to remove the appellant did not exceed the bounds of reasonableness and does not
      warrant mitigation.

      The appellant’s new documents and arguments do not provide a basis for
      reversing the initial decision.
¶11        The appellant submits for the first time with his petition for review glucose
      readings that date from before the close of the record below. PFR File, Tab 1 at
      9-11. Under 5 C.F.R. § 1201.115, the Board generally 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.
      Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).        The appellant
                                                                                                8

      states that he did not submit the information previously because he did not know
      he would be considered disabled under the Americans with Disabilities Act. PFR
      File, Tab 1 at 3.        The appellant fails to assert that the documents were
      unavailable, despite his due diligence before the record closed.             See 5 C.F.R.
      § 1201.115(d). Therefore, we decline to consider this evidence.
¶12         In addition, to the extent that the appellant is now attempting to raise a
      claim of disability discrimination, he did not raise this defense below. IAF, Tab
      18. The Board generally 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 makes
      no such showing; therefore, we do not consider this argument.
¶13         The appellant alleges for the first time on review that the agency should
      have contacted the references he provided when considering the penalty. PFR
      File, Tab 1 at 5. The appellant contends that the agency’s failure to contact the
      references constitutes harmful error. Id. Harmful error is defined as an error by
      the agency in the application of its procedures that is likely to have caused the
      agency to reach a conclusion different from the one it would have reached in the
      absence or cure of the error. 5 C.F.R. § 1201.56(c)(3).            The burden is on the
      appellant to show that the error was harmful. Id. The appellant has not submitted
      any law, rule, or regulation that required the deciding official to contact the
      individuals he identified to obtain additional information regarding the appellant;
      therefore, we discern no harmful procedural error. 4

      4
        To the extent the appellant is alleging that the agency violated h is constitutional right
      to minimum due process of law by failing to contact the references he provided in h is
      response to the notice of proposed removal, we find the argument unpersuasive. There
      is no evidence indicating that the agency prevented the appellant from submitting
      information regarding these references. Further, the record reflects that the deciding
      official considered the appellant’s employment record as a mitigating factor. Under the
      circumstances in this case, we discern no basis for find ing that the agency deprived the
      appellant of a meaningful opportunity to respond by failing to contact his references.
                                                                                            9

      The appellant’s reply is rejected IN PART for failure to conform to the Board’s
      regulations.
¶14         The appellant, through his attorney, filed a reply to the agency’s response to
      the petition for review. PFR File, Tab 6. The agency filed a motion to strike the
      appellant’s reply, alleging that his reply exceeded the scope of the issues raised in
      his petition for review and the agency’s response. PFR File, Tab 7. We construe
      the agency’s motion as a motion to reject the appellant’s pleading for failure to
      conform to the Board’s regulations, and, for the reasons set forth below, we
      GRANT IN PART and DENY IN PART the agency’s motion.
¶15         The Board’s regulations provide for only four types of pleadings on review:
      a petition for review, a cross petition for review, a response, and a reply to a
      response. 5 C.F.R. § 1201.114(a)(1)-(4). A reply is limited to the factual and
      legal issues raised by another party in the response to the petition for review and
      may not raise new allegations of error. 5 C.F.R. § 1201.114(a)(4). The Board
      will not accept a pleading other than these four unless the party files a motion and
      obtains leave from the Clerk of the Board to make such filing.                5 C.F.R.
      § 1201.114(a)(5).
¶16         Here, the appellant has filed no such motion. Rather, he has filed a reply in
      which he elaborates on his claim, as set forth in his petition for review and
      refuted by the agency in its response, that the administrative judge failed to
      properly consider the medical evidence of record. His reply also sets forth four


      See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) (when a
      tenured public employee is deprived of a property interest in his employment, he has a
      constitutional right to minimum due process of law, i.e., notice and meaningful
      opportunity to respond); cf. Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 11
      (2014) (finding that the appellant waived his due process right to respond to a proposed
      removal where there was no indication that the appellant made a reasonable effort to
      assert his right to respond and where there was no evidence that the agency denied his
      right to respond); Wilson v. Department of Homeland Security, 120 M.S.P.R. 686,
      ¶¶ 11-12 (2014) (a deciding official does not violate an employee’s right to due process
      when he considers issues raised by the appellant in her response to the proposed adverse
      action and then rejects those arguments in reaching a decision).
                                                                                     10

additional legal arguments not raised in his petition for review or otherwise raised
in the agency’s response. 5 To the extent that the appellant’s reply elaborates on
his claim that he previously set forth in his petition for review, we DENY the
agency’s motion because the appellant’s reply does not exceed the scope of the
factual and legal issues raised in the agency’s response.           In any event, as
discussed above, this claim does not provide a basis for disturbing the initial
decision.   However, we GRANT the agency’s motion with regards to the
appellant’s four new arguments contained in his reply that exceeded the scope of
the factual and legal issues raised by the agency’s response. PFR File, Tabs 3, 6.
Accordingly, we have not considered the appellant’s new arguments contained in
his reply in reaching this decision. 6

                 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




5
 The appellant’s additional arguments are that: (1) the Board should have conducted a
new Douglas analysis because of the new medical testimony at the hearing; (2) the
administrative judge should have considered the deciding official’s statement to be an
admission rather than subject his testimony to a credibility determination; (3) the
agency removed the appellant for a charge of fraud and not negligence; and (4) the
agency violated the appellant’s due process rights by not informing the appellant of an
aggravatin g factor considered by the deciding official. PFR File, Tab 6 at 3-9.
6
   To the extent that the appellant’s reply requested the Board to “re-open the Initial
Decision on its own motion,” the initial decision did not constitute a final decision
subject to the Board’s reopening regulation. See 5 C.F.R. § 1201.118 (the Board may at
any time reopen any appeal in which it has issued a final order or in which an initial
decision has become the Board’s final decision by operation of law), § 1201.113(a) (an
in itial decision will not become the Board’s final decision if any party files a timely
petition for review).
                                                                                   11

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
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
                                                                           12

representation by a court-appointed lawyer and to waiver of any requirement of
                                                                       13

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.
