                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ADRIENNE D. CARTER,                             DOCKET NUMBER
                   Appellant,                        CB-7121-14-0018-V-1

                  v.

     DEPARTMENT OF HOUSING AND                       DATE: May 11, 2015
       URBAN DEVELOPMENT,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Charles E. Wagner, Esquire, Silver Spring, Maryland, for the appellant.

           Evette R. Young, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant seeks review of an arbitration decision that sustained her
     removal for misconduct. For the following reasons, we GRANT the appellant’s
     request for review under 5 U.S.C. § 7121(d). Because we find that the arbitrator
     failed to employ the proper legal framework when he analyzed the appellant’s


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     failure to accommodate disability discrimination claim and he made an error in
     civil service law in his penalty analysis, we VACATE the arbitration decision in
     this regard. We FIND, however, that the appellant did not prove her disability
     discrimination claim based on a failure to accommodate. We FURTHER FIND
     that removal is a reasonable penalty for the sustained misconduct.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The background is undisputed.        The appellant was removed based on
     charges of failure to maintain a regular work schedule and failure to follow
     instructions.   See Request for Review (RFR) File, Tab 9 at 17-28 (notice of
     proposed removal), 72-76 (decision letter).         The appellant’s union filed a
     grievance that proceeded to arbitration.        See id. at 77 (notice to invoke
     arbitration). After a hearing, the arbitrator found that: (1) the agency met its
     burden to demonstrate that the appellant engaged in the charges; (2) the issue
     concerning whether the agency provided a reasonable accommodation for the
     appellant’s disability was not properly before the arbitrator, and in the alternative,
     the appellant failed to demonstrate that the agency violated her rights regarding
     the failure or refusal to provide her with a reasonable accommodation; (3) the
     appellant did not prove her disparate treatment disability discrimination claim;
     and (4) the removal promoted the efficiency of the service and was “for just and
     sufficient cause.” RFR File, Tab 8 at 4-86.
¶3         In her “Statement of Grounds on Which Review is Requested” and
     “Grounds Requiring Reversal of Arbitrator’s Decision,” the appellant identified
     16 separate grounds, which we condense and summarize as follows:              (1) the
     removal was in retaliation for equal employment opportunity (EEO) activity;
     (2) the agency improperly denied her request for a reasonable accommodation;
     (3) the notice of proposed removal was defective because it did not identify the
     nature of the second charge, the arbitrator used an improper construction of that
     charge, and the arbitrator committed harmful error in his construction of that
                                                                                       3

     charge; (4) the arbitrator improperly evaluated the appellant’s disability
     discrimination claim and erroneously ruled that the reasonable accommodation
     issue was not properly before him; (5) the agency violated the appellant’s due
     process rights because it removed her based on her performance, which was not
     one of the stated grounds for removal; (6) the arbitrator improperly upheld the
     removal based on an agency official’s declaration that was submitted 1 month
     after the record was closed; and (7) the agency failed to recognize her medical
     conditions as a mitigating factor in the penalty analysis. See RFR File, Tab 7
     at 5-9. The agency, in its response to the request for review, asserted among
     other things, that: (1) the appellant is precluded from asserting retaliation as an
     affirmative defense for the first time in her request for review; (2) the arbitrator
     correctly determined that she was not disabled; (3) the arbitrator correctly
     concluded that she failed to cooperate and provide sufficient               medical
     documentation to support her request for a reasonable accommodation; (4) the
     appellant understood and responded to the failure to follow instructions charge;
     and (5) the appellant was provided notice that her performance was at issue. RFR
     File, Tab 9.
     The Board has jurisdiction over the request for review, but it cannot review the
     appellant’s claim of retaliation for protected activity because this issue was not
     raised before the arbitrator.
¶4        The Board has jurisdiction over the request for review because the subject
     matter of the grievance is one over which the Board has jurisdiction (removal),
     the appellant alleged disability discrimination in connection with the underlying
     action, and a final decision has been issued by the arbitrator. 5 U.S.C. § 7121(d);
     McCurn v. Department of Defense, 119 M.S.P.R. 226, ¶ 5 (2013).
¶5        If the negotiated grievance procedure (NGP) permits allegations of
     discrimination, 2 the Board will review only those claims of discrimination that


     2
      A claim of EEO retaliation is cognizable under 5 U.S.C. § 2302(b)(1)(A). Rhee v.
     Department of the Treasury, 117 M.S.P.R. 640, ¶ 20 (2012).
                                                                                        4

     were raised in the NGP. If the NGP does not permit allegations of discrimination
     to be raised, the appellant may raise such claims before the Board. See Brookens
     v. Department of Labor, 120 M.S.P.R. 678, ¶ 6 (2014); see also 5 C.F.R.
     § 1201.155(c). The appellant did not provide the relevant portions of the NGP;
     however, the arbitrator discussed section 22.03 of the NGP, which apparently
     permitted the appellant to raise a claim of discrimination, and the arbitration
     decision reflects the arbitrator’s consideration of the appellant’s disability
     discrimination claim.    See RFR File, Tab 8 at 49-60, 81-85.           Because the
     appellant could have, but did not, raise her retaliation claim during the NGP, she
     is therefore precluded from asserting such a claim for the first time before the
     Board. See 5 C.F.R. § 1201.155(c); see also Brookens, 120 M.S.P.R. 678, ¶ 6;
     Jones v. Department of Energy, 120 M.S.P.R. 480, ¶¶ 3-10 (2013), aff’d, 589 F.
     App’x 972 (Fed. Cir. 2014).
     Standard of review of an arbitration decision
¶6        Arbitration awards are entitled to a greater degree of deference than initial
     decisions issued by the Board’s administrative judges. See Benson v. Department
     of the Navy, 65 M.S.P.R. 548, 554 (1994) (citing Bean v. Equal Employment
     Opportunity Commission, 55 M.S.P.R. 609, 612 (1992)). The Board will modify
     or set aside such a decision only where the arbitrator has erred as a matter of law
     in interpreting civil service law, rules, or regulations. Id. An arbitrator’s factual
     determinations are entitled to deference unless the arbitrator erred in his legal
     analysis, for example, by misallocating the burdens of proof or employing the
     wrong analytical framework. Pace v. Department of the Treasury, 118 M.S.P.R.
     542, ¶ 5 (2012). Even if the Board disagrees with an arbitrator’s decision, absent
     legal error, the Board cannot substitute its conclusions for those of the arbitrator.
     Id.; Benson, 65 M.S.P.R. at 554.
     We defer to the arbitrator’s decision to sustain both charges.
¶7        Despite the fact that charge 2 was labeled as “failure to follow
     instructions,” the deciding official during the hearing apparently described the
                                                                                        5

     charge as a charge of “insubordination.”       See RFR File, Tab 8 at 70.        The
     arbitrator rejected the appellant’s assertion that the charge and the removal should
     be reversed because she did not have notice of an insubordination charge. See id.
     at 69. Rather, the arbitrator, among other things: (1) determined that the agency
     never raised “insubordination” as a basis for the removal; (2) found that the
     agency’s allegation in charge 2 (failure to follow instructions) was consistent
     with the offense of “disregard of a directive” in the agency’s table of penalties
     (offense 19), instead of failure to follow established leave procedures (offense
     1B); (3) relied on a post-hearing sworn declaration from the agency’s Human
     Resources Officer, who denied informing the appellant at her oral response to the
     proposed removal that charge 2 corresponded to offense 1B; (4) found that the
     appellant was placed on sufficient notice of the nature of charge 2 and properly
     formulated a response to that charge; and (5) determined that the agency
     demonstrated that the appellant engaged in misconduct under offense 19. See id.
     at 69-74. In her request for review, the appellant challenges these findings and
     the arbitrator’s reliance on the post-hearing sworn declaration.
¶8        The appellant has not demonstrated that the arbitrator made an error of civil
     service law or erred in his legal analysis regarding his construction of this charge.
     Despite the deciding official’s apparent inartful use of the word “insubordination”
     during the hearing, the documentary evidence reflects the perception—shared by
     both the agency and the appellant—that the charge was failure to follow
     instructions and did not contain any element of intent that would be required for
     an   insubordination     charge.       Compare      Hamilton       v.   U.S.   Postal
     Service, 71 M.S.P.R. 547, 556 (1996) (an agency may prove the charge by
     establishing that proper instructions were given to an employee and that the
     employee failed to follow them, whether that failure was intentional or not), with
     Walker v. Department of the Army, 102 M.S.P.R. 474, ¶ 8 (2006) (insubordination
     is a willful and intentional refusal to obey an authorized order of a superior
     officer that the officer is entitled to have obeyed). Notably, the appellant, in her
                                                                                           6

      response to the notice of proposed removal, cited to the Board’s decision in
      Hamilton. See RFR File, Tab 9 at 62; see also RFR File, Tab 8 at 71-72. The
      arbitrator also noted that the agency identified the failure to follow instructions
      standard in its pleading. See RFR File, Tab 8 at 71-72. We therefore conclude
      that the arbitrator properly determined that charge 2 was intended to be a charge
      of failure to follow instructions, and he identified the proper legal standard for
      evaluating this charge. Thus, we find that his analysis of this charge is entitled to
      deference.
¶9         Although unclear, the appellant also may be challenging the arbitrator’s
      finding that the agency properly sustained the charge of failure to maintain a
      regular work schedule. In her request for review, she asserted that it is “well
      established” that “generally, approved leave (annual, sick, leave without pay,
      Family and Medical Leave Act (FMLA) [] leave[,] and [Office of Workers’
      Compensation Programs (OWCP) leave] could not be used as a basis for
      disciplinary action.” RFR File, Tab 7 at 17. However, the arbitrator explained
      that, even if he excluded the appellant’s FMLA and OWCP leave, the appellant
      still was absent from work for a “significant and unreasonable amount of the total
      of 1,800 hours over a [2 ½] year period,” which amply supports the charge. RFR
      File, Tab 8 at 62. The appellant has not identified an error in civil service law or
      other legal error by the arbitrator in this regard, and we find that his decision to
      uphold the failure to maintain a regular schedule charge is entitled to deference.
      The arbitrator did not follow the proper standard for evaluating the appellant’s
      claim of failure to accommodate disability discrimination, and we do not defer to
      his analysis and conclusions.
¶10        The arbitrator found that the appellant did not prove that the agency
      improperly denied her accommodation request for up to 2 days per week of
      telework.    See RFR File, Tab 8 at 51-60.      In making this determination, the
      arbitrator considered the following evidence: (1) the appellant failed to provide
      supporting documentation for her first request for an accommodation; (2) she did
                                                                                          7

      not challenge the agency’s disapproval           of her    second   request   for   an
      accommodation; (3) she did not identify any specific accommodation for her third
      request; (4) the agency had provided her with a flexible schedule and air purifier,
      among other things, as a result of her third accommodation request; and (5) the
      agency had determined that she could not perform the essential functions of her
      position if she was working at home. Id.
¶11        In her request for review, the appellant argued primarily that the arbitrator
      did not consider the Americans with Disabilities Act Amendments Act of 2008
      (ADAAA) and that the agency should have given her the accommodation of a
      flexible work schedule. See, e.g., RFR File, Tab 7 at 5-9, 36-38, 41-43. 3 It is
      true that the arbitrator did not reference the ADAAA or any pertinent statutory or
      regulatory provisions thereto; nor did he appear to appreciate that the ADAAA
      liberalized the definition of disability.   See Doe v. Pension Benefit Guaranty
      Corporation, 117 M.S.P.R. 579, ¶ 38 (2012); see also Lytes v. DC Water & Sewer
      Authority, 572 F.3d 936, 941 (D.C. Cir. 2009) (stating that Congress, in effecting
      the ADAAA, “undertook generally to ‘reinstat[e] a broad scope of protection’”).
      Additionally, the arbitrator failed to identify any legal standard in his discussion
      of the appellant’s failure to accommodate claim; instead, he only appears to have
      included a discussion of an “impairment” and “disability” in his analysis of the
      appellant’s disparate treatment claim. Compare RFR File, Tab 8 at 51-60 (failure
      to accommodate claim), with id. at 81-85 (disparate treatment claim). See Thome
      v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 24 (2015) (explaining
      that an appellant may prove that she has a disability by showing that she: (1) has
      a physical or mental impairment that substantially limits one or more major life

      3
         The appellant contends that the arbitrator improperly determined that the
      accommodation issue was not before him because she had filed an earlier EEO action.
      RFR File, Tab 7 at 4-5, 7; see RFR File, Tab 8 at 48-51. We need not decide this issue
      because the arbitrator, as discussed herein, alternatively evaluated the appellant’s
      contention that the agency failed to provide her with a reasonable accommodation. See
      RFR File, Tab 8 at 51-60.
                                                                                          8

      activities; (2) has a record of such impairment; or (3) is regarded as having such
      an impairment). For these reasons, we find that the arbitrator did not employ the
      proper framework for evaluating the appellant’s failure to accommodate claim,
      his findings are not entitled to deference, and we will make our own findings on
      this claim. See FitzGerald v. Department of Homeland Security, 107 M.S.P.R.
      666, ¶ 18 (2008) (holding that the Board may make its own findings regarding the
      appellant’s claim of retaliation because the arbitrator “did not cite any legal
      standard when he evaluated the evidence” and his analysis did not follow the
      proper legal framework).
¶12         The record reflects that the appellant had a variety of medical conditions.
      See, e.g., RFR File, Tab 7 at 114-15, 139-42, 149-52. We assume, for purpose of
      our analysis, that these conditions constitute impairments under the ADAAA.
      See 29 C.F.R. § 1630.2(h)(1).     The agency’s doctor noted that the appellant’s
      conditions “will at times impair her capacity for mental concentration,” RFR File,
      Tab 7 at 114, and concentrating is a major life activity under the ADAAA,
      see 42 U.S.C. § 12102(2)(A).       Thus, even though the appellant’s conditions
      appear episodic, we further assume that she is disabled.         See, e.g., 29 C.F.R.
      § 1630.2(j)(1)(vii) (stating that an impairment that is episodic is a disability if it
      would substantially limit a major life activity when active).
¶13         Next, even assuming that the appellant has one or more impairments that
      substantially limit a major life activity, she must still show that she is “qualified”
      within the meaning of 29 C.F.R. § 1630.2(m). A “qualified” individual with a
      disability is one who satisfies the requisite skill, experience, education and other
      job-related requirements of the employment position such individual holds, and
      who, with or without reasonable accommodation, can perform the essential
      functions of the position.   See 29 C.F.R. § 1630.2(m).         The appellant has not
      provided any persuasive evidence that she could perform the essential functions
      of her position with or without an accommodation, and her supervisor indicated
      that she could not perform her essential functions remotely. See RFR File, Tab 9
                                                                                                9

      at 105 (the supervisor’s November 7, 2011 email), 107 (January 4, 2010 denial of
      the appellant’s request to telecommute); see also id. at 108-11 (excerpt of the
      appellant’s position description).      Additionally, the agency’s doctor consulted
      with the appellant’s doctor and then concluded that there was “no apparent
      medical basis for teleworking” 2 days per week. RFR File, Tab 7 at 114-15. The
      appellant has presented no persuasive evidence or argument to show that the
      agency’s characterization of her duties was erroneous or that her supervisor
      improperly concluded that she could not perform her essential functions
      remotely. 4 Accordingly, we find that she has failed to prove that the agency
      improperly denied her request to telework as a reasonable accommodation.
¶14         The appellant also asserted that the agency improperly denied her request
      for a flexible work schedule and that the agency’s decision to allow her to report
      by 9:30 a.m. as a result of her third accommodation request “was no
      accommodation at all since she could already start at 9:30 [a.m.]” due to her
      flexitour schedule. 5 RFR File, Tab 7 at 42. We cannot discern if she raised this
      issue during the NGP. See 5 C.F.R. § 1201.155(c). In any event, she has not
      persuaded us that the agency improperly denied her such an accommodation. The
      record reflects that:       (1) on May 2, 2012, the appellant requested an
      “[a]ccommodation to address medical condition,” RFR File, Tab 7 at 116;
      (2) progress notes from the agency’s Human Resources Specialist indicate that
      she and the appellant discussed a flexible work schedule on June 5, 2012, RFR


      4
        The record contains assertions that other agency employees may have been permitted
      to telework. See, e.g., RFR File, Tab 7 at 209 (the appellant’s response to the notice of
      proposed removal). There is no evidence that these other employees had the same job
      functions or duties as the appellant. Moreover, the appellant does not challenge the
      arbitrator’s evaluation of her disparate treatment disability d iscrim ination claim, and we
      need not discuss it further.
      5
        A flexitour schedule means that an employee may vary her arrival time within 1 hour
      before or after her selected starting time. The parties do not dispute that, pursuant to a
      flexitour schedule, the appellant was expected to arrive at work between 7:30 a.m. and
      9:30 a.m.
                                                                                        10

      File, Tab 9 at 120; (3) a subsequent email from the Human Resources Specialist
      to the appellant stated that she “will have to get back to [the appellant] on the
      core hours [the appellant] can work,” id. at 137; and (4) the agency granted the
      appellant’s accommodation request for a flexible schedule, so that the appellant
      could start as late as 9:30 a.m. and as early as 7:30 a.m., which would allow her
      to take her prescribed medication as needed and treatment, RFR File, Tab 7
      at 116.
¶15        The appellant correctly noted that the agency was required to enter into the
      interactive process to identify the precise limitations resulting from the disability
      and potential reasonable accommodations that could overcome those limitations,
      RFR File, Tab 7 at 42-43 (citing 29 C.F.R. § 1630.2(o)(3)).           However, the
      appellant also has an obligation to assist in the search for an appropriate
      accommodation in good faith, see Collins v. U.S. Postal Service, 100 M.S.P.R.
      332, ¶ 11 (2005). A reasonable accommodation request does not have to be in
      writing, White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 15 n.6
      (2013), but it appears that the appellant did not clearly communicate with the
      Human Resources Specialist that she wanted to be able to arrive at work after
      9:30 a.m. The medical evidence that she provided to the agency sheds no light on
      this issue. Notably, her doctor’s notes state that she should be permitted to come
      in “late,” but do not explain what “late” means. See RFR File, Tab 7 at 140-42.
      Additionally, the appellant’s testimony about the nature of her accommodation
      request was confusing:
            Q: Did you ask for [a] flexible work schedule?
            A: I asked for a flex schedule for a reasonable accommodation. I
            already had a flex schedule.
            Q: You had a flex tour schedule?
            A: Yes, that’s what I said, my regular tour. That was something I
            already had. I asked for a reasonable accommodation flex.
      Id. at 95. At another point in the hearing, the appellant testified that she “asked
      for more flexible hours” as a reasonable accommodation but that she also “asked
                                                                                      11

for a flexi tour for a reasonable accommodation.”            Id. at 97.    Under these
circumstances, we cannot discern if the appellant clearly communicated and the
agency understood that she was seeking to arrive at work at a later time than
9:30 a.m. prior to the accommodation being awarded. 6 Moreover, there is no
evidence that, between the agency’s decision on June 18, 2012, to grant her an
accommodation of a flexible work schedule, and July 2, 2012, when she was
placed on leave following the issuance of the notice of proposed removal, RFR
File, Tab 9 at 17-23, she ever communicated to the Human Resources Specialist
that the approved accommodation was not what she was seeking.                    To the
contrary, the record reflects only that she raised this issue in her response to the
notice of proposed removal. See RFR File, Tab 7 at 208. Given the confusing
nature of her testimony and the lack of supporting documentation in the record,
we cannot discern whether the appellant communicated and/or the agency
understood that her request for a flexible schedule was a request to come to work
after 9:30 a.m.      Because we cannot conclude that the appellant clearly
communicated the nature of the flexible work schedule that she was seeking, we
also cannot conclude that the agency improperly denied her a reasonable
accommodation. See White, 120 M.S.P.R. 405, ¶¶ 11-15 (finding that because the
appellant failed to fulfill his obligations in the interactive accommodation
process, he failed to establish that the agency violated its duty of reasonable
accommodation). 7

6
 The appellant asserted in her request for review that the agency’s Human Resources
Specialist d id not know about flexitour. See RFR File, Tab 7 at 6-7. We are unable to
make a determ ination on this assertion based on the current record.
7
  The appellant also appeared to argue that her due process rights were violated when
the agency improperly considered her performance in its decision and the arbitrator
erred because he made no reference to the role performance allegedly played in the
agency’s decision. See RFR File, Tab 7 at 7, 39-41. We find no evidence of a due
process violation in this regard. The arbitrator referenced the appellant’s performance
issues in the background of his decision and the deciding official’s consideration of the
appellant’s performance in his penalty analysis. See RFR File, Tab 8 at 24-26, 32-35,
77. It is not clear from the lim ited record provided to us by the appellant whether she
                                                                                            12

      Because the arbitrator made an error in civil service law in his analysis of the
      penalty, we vacate his penalty determination.
¶16        The arbitrator found that the deciding official reasonably exercised his
      discretion and weighed the various factors under Douglas v. Veterans
      Administration, 5 M.S.P.R. 280 (1981), and he affirmed the removal. See RFR
      File, Tab 8 at 75-78. The appellant argued in her request for review, however,
      that the deciding official and the arbitrator improperly failed to consider her
      medical conditions as a mitigating factor. See RFR File, Tab 7 at 8. She also
      alleged that the arbitrator erred when he found that the failure to follow
      instructions charge corresponded to the charge of “disregard of a directive”
      (offense 19) in the agency’s table of penalties instead of “failure to follow
      established leave procedures” (offense 1(b)).      Id. at 6-8; see RFR File, Tab 9
      at 140, 142. She further alleged that, in making the determination of the proper
      corresponding offense in the agency’s table of penalties, the arbitrator improperly
      considered a post-hearing declaration from an agency official, which she states
      constitutes a due process violation. See RFR File, Tab 7 at 8.
¶17        The deference that is due to an arbitrator’s findings extends to findings
      related   to    penalty     determinations.    Cambridge         v.    Department      of
      Justice, 111 M.S.P.R. 152, ¶ 15 (2009). In making these findings, arbitrators are
      required to apply the same rules that the Board applies. Id. When the arbitrator
      does not apply those rules, his penalty determination is not entitled to deference,
      and the Board will conduct its own analysis. Id.
¶18        We agree with the appellant that the arbitrator’s penalty analysis contains
      an error in civil service law because it does not appear that he considered all of
      the relevant Douglas factors.     In particular, the U.S. Court of Appeals for the
      Federal Circuit (Federal Circuit) has held that “when mental impairment or illness

      explicitly raised a due process vio lation before the   arbitrator, but in any event, the
      notice of proposed removal discusses the effect of       the appellant’s absences on her
      ability to perform her duties, and she addressed her    job level and performance in her
      response to the proposed removal. See RFR File, Tab     9 at 21, 67.
                                                                                        13

      is reasonably substantiated, and is shown to be related to the ground of removal,
      this must be taken into account when taking an adverse action against the
      employee.” Malloy v. U.S. Postal Service, 578 F.3d 1351, 1356 (Fed. Cir. 2009).
      Neither the deciding official nor the arbitrator explicitly considered as a
      mitigating factor the appellant’s numerous, documented medical conditions,
      which are clearly related to the two charges that led to her removal. We find that
      the arbitrator’s failure to consider this evidence is contrary to the Federal
      Circuit’s directive in Malloy and constitutes an error of civil service law. Thus,
      the arbitrator’s penalty determination is not entitled to deference.
      Removal is a reasonable penalty for the sustained misconduct.
¶19         The Board will review an agency-imposed penalty only to determine if the
      agency considered all the relevant factors and exercised management discretion
      within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. As noted
      above, the agency, like the arbitrator, failed to consider the appellant’s numerous
      medical conditions. Thus, we independently evaluate the penalty.
¶20         The Board and the Federal Circuit have found that the sustained offenses
      are serious. See, e.g., Tate v. U.S. Postal Service, 495 F. App’x 72, 74-76 (Fed.
      Cir. 2012) (in affirming the agency’s decision to remove the appellant based on a
      single charge of failure to maintain a regular work schedule, the court implicitly
      affirmed the agency’s determination that the charge was serious); Hernandez v.
      Department of Agriculture, 83 M.S.P.R. 371, ¶¶ 2, 9 (1999) (failure to follow
      instructions is a serious charge).
¶21         We have considered the following aggravating factors:       (1) the appellant’s
      disciplinary history, which includes a September 16, 2011 Official Reprimand
      based on charges of absence without leave and failure to comply with a leave
      restriction memorandum, RFR File, Tab 9 at 48-50; (2) records of her prior
      performance; (3) the deciding official’s statement that he no longer had
      confidence in the appellant’s ability to perform her job and that she had no
      potential for rehabilitation, id. at 74; and (4) the fact that the appellant was on
                                                                                           14

      notice, through various leave restriction memoranda and the Official Reprimand,
      that continued absences and failure to follow the agency’s leave restrictions could
      lead to more discipline.
¶22         We also have considered mitigating factors, in particular, the appellant’s
      17 years of federal service and her numerous medical conditions, which clearly
      played a part in the sustained misconduct. See Malloy, 578 F.3d at 1356.
¶23         We further find that the charge of failure to follow instructions is more akin
      to the offense of “disregard of a directive” in the agency’s table of penalties and
      offenses (offense 19), rather than the offense of “failure to follow established
      leave procedures” (offense 1B). The proposal notice states that the appellant was
      placed on a leave restriction because she did not comply with established leave
      procedures. See RFR File, Tab 9 at 21. The appellant’s subsequent failure to
      follow the leave restriction memorandum cannot also be viewed as a failure to
      follow established leave procedures, particularly when the leave restriction
      memorandum was only directed to her. 8         The agency’s table of penalties and
      offenses states that, for a first offense of a disregard of a directive offense, the
      penalty ranges from a 5-day suspension to a removal for a first offense. See id.
      at 142.
¶24         We also have considered the duration of the appellant’s absences.              As
      discussed above, the arbitrator found that the appellant took 1800 hours of
      leave—excluding FMLA and OWCP leave—over a 2 ½ year period, see
      supra ¶ 9, which means that the appellant was absent for approximately one-third
      of the time during the relevant period.
¶25         Based on our review of these factors, we conclude that removal is a
      reasonable penalty for the sustained misconduct. See, e.g., Schultz v. Department
      of the Navy, 810 F.2d 1133, 1137 n.* (Fed. Cir. 1987) (an agency can bring a
      removal action against an employee for prolonged absences, even if the absences
      8
       In light of our disposition, we need not consider the post-hearing declaration admitted
      by the arbitrator.
                                                                                  15

are    attributable      to   poor       health);   Combs   v.    Social     Security
Administration, 91 M.S.P.R. 148, ¶¶ 1, 11-21 (2002) (sustaining the appellant’s
removal based on charges of inability to maintain regular attendance and inability
to perform assigned duties for medical reasons).

                 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:
                             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.
                                                                                   16

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
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.
