                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TRACY A. MAY,                                   DOCKET NUMBER
                         Appellant,                  DA-0752-14-0126-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: August 29, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Tracy A. May, El Reno, Oklahoma, pro se.

           Jamie L. Sagehorn, Tinker AFB, Oklahoma, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     mitigated the appellant’s removal to a reduction in grade to a non-supervisory
     position. For the reasons discussed below, we GRANT the agency’s petition for
     review, AFFIRM the administrative judge’s findings on the merits of the agency’s


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     charges and on the nexus between the appellant’s misconduct and the efficiency
     of the service, REVERSE the decision to mitigate the penalty, and SUSTAIN the
     appellant’s removal.
¶2           The agency removed the appellant from her position as a GS-06 Supervisory
     Education and Training Technician at the Tinker Air Force Base Child
     Development Center based on two charges: disregard of a directive, and
     negligence.     Initial Appeal File (IAF), Tab 5 at 14, 16-17.        Specifically, the
     agency charged that the appellant negligently administered the wrong prescription
     medicine to one of the children under her care and then failed to follow an agency
     directive requiring her to notify the acting director of the center and the parents
     of the child involved of her mistake.        Id. at 28.   She filed an appeal of her
     removal and subsequently waived her right to a hearing. IAF, Tabs 1, 7.
¶3           In an initial decision on the written record, the administrative judge
     determined that the agency proved its charges, but she determined that, because
     the agency failed to show that the deciding official gave adequate consideration
     to the relevant Douglas factors, 2 its choice of penalty was not entitled to
     deference. IAF, Tab 12, Initial Decision (ID) at 2-7, 10.          In that regard, the
     administrative judge found that the deciding official’s analysis of the Douglas
     factors failed to show that he had given serious consideration to a lesser penalty
     or to the appellant’s potential for rehabilitation and further found it “difficult if
     not impossible to understand the [deciding official’s] statement that the
     appellant’s actions ‘broke the trust that is required of all childcare employees,’”
     in light of the fact that following the incident, “the agency allowed the appellant
     to continue in her supervisory position and even retrained her the following day
     on administering medicines to the children in her care.” ID at 10-11 (quoting
     IAF, Tab 10 at 7).         Thus, considering the applicable Douglas factors, the
     administrative judge determined that a demotion was the maximum reasonable

     2
         See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
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     penalty for the sustained charges and she mitigated the penalty to a reduction in
     grade to a GS-05 non-supervisory position. ID at 12-13.
¶4        In its timely-filed petition for review, the agency argues that, contrary to
     the administrative judge’s findings, the deciding official thoughtfully considered
     the relevant Douglas factors. Petition for Review (PFR) File, Tab 1 at 7-8. The
     agency also argues that the administrative judge improperly made credibility
     determinations without a hearing, erroneously found that the penalty of removal
     was beyond tolerable limits of reasonableness, erroneously considered evidence
     not in the record, and confused argument with evidence in a manner that
     materially affected the initial decision.   Id. at 8-10.   Ultimately, the agency
     contends that the administrative judge erred in mitigating the penalty.
¶5        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. Woebcke v. Department of Homeland Security,
     114 M.S.P.R. 100, ¶ 7 (2010).     In determining whether the selected penalty is
     reasonable, the Board gives due deference to the agency’s discretion in exercising
     its managerial function of maintaining employee discipline and efficiency. Id.
     The Board recognizes that its function is not to displace management’s
     responsibility or to decide what penalty it would impose, but to assure that
     management judgment has been properly exercised and that the penalty selected
     by the agency does not exceed the maximum limits of reasonableness. Id. Thus,
     the Board will modify a penalty only when it finds that the agency failed to weigh
     the relevant factors or that the penalty the agency imposed clearly exceeded the
     bounds of reasonableness. Id.
¶6        With its petition for review, the agency includes evidence regarding interim
     relief, a sworn statement from the director of the Child Development Center, and
     a copy of its table of penalties. PFR File, Tab 1 at 12-20. Regarding the sworn
     statement and the table of penalties, under 5 C.F.R. § 1201.115, the Board will
                                                                                       4

     generally 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.    Both of these items appear to have been
     available before the close of the record below and the agency fails to address their
     availability in its petition for review. Moreover, the sworn statement appears to
     be offered in rebuttal. See PFR File, Tab 1 at 14. Such evidence is not generally
     considered new and material.         E.g., Bucci v. Department of Education,
     42 M.S.P.R. 47, 55 (1989). Nevertheless, the same individual offered a similar
     statement as part of the agency’s presentation in the appeal below, IAF, Tab 10 at
     12-14, and, as the following discussion indicates, it differs significantly from the
     administrative judge’s findings, especially regarding what duties the agency
     allowed the appellant to perform after the incident at issue and the implications
     thereof, see ID at 11-12.
¶7        In a situation like this, where there has been no hearing and the
     administrative judge’s findings are therefore not based on the observation of
     witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its
     own judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d
     1288, 1302 (Fed. Cir. 2002).     Because the appellant waived a hearing in this
     matter, IAF, Tab 7, the administrative judge’s findings regarding the facts of this
     case and the deciding official’s consideration of the Douglas factors were not
     based on her observation of witnesses’ demeanor. Thus, where justified by the
     record, the Board may substitute its factual findings for those of the
     administrative judge.
¶8        The administrative judge found that the agency’s actions following the
     incident at issue undermined the deciding official’s assessment of the appellant’s
     rehabilitative potential because, as noted above, rather than place the appellant on
     administrative leave, it instead let her continue in her supervisory position, and
     retrained her on the procedures for administering medicines.        ID at 11.    By
     contrast, the center director asserted in her earlier sworn statement that the
                                                                                         5

      agency restricted the range of duties which it allowed the appellant to assume
      after the incident, limiting her to coordinating staff breaks and lunches, and
      performing administrative tasks such as taking hourly counts in each classroom,
      and the center director makes clear that the appellant was not allowed to
      administer medicine upon her return to work. IAF, Tab 10 at 13. Thus, contrary
      to the administrative judge’s implied finding that the agency allowed the
      appellant to more or less assume her regular duties following the incident at
      issue, the record instead indicates that the agency acted consistently with the
      deciding official’s statement that the appellant had lost the agency’s trust and that
      her duties were curtailed as a result.
¶9          Additionally, even though the administrative judge correctly noted that the
      agency did not charge the appellant with being untruthful regarding the events at
      issue or with intentionally failing to follow the agency directive requiring her to
      notify the parents of the child who mistakenly received another child’s
      prescription medicine, these facts are important to the penalty determination and
      the record reflects that the deciding official considered them in that context. For
      example, the first Douglas factor involves the question of whether the offense at
      issue was intentional, Douglas, 5 M.S.P.R. at 305, and the deciding official
      indicated in her consideration of that factor that she found the appellant’s act of
      not reporting the incident was intentional, IAF, Tab 5 at 18. As the following
      discussion indicates, we agree with the deciding official that the appellant acted
      intentionally, and that her actions are a severely aggravating factor.
¶10         Although the appellant consistently claimed that she did not realize her
      mistake until after she returned from lunch, see, e.g., IAF, Tab 5 at 20, 24, 31,
      contemporaneous eyewitness accounts indicate that two of her colleagues
      informed the appellant of her mistake at the time it occurred, and that she
      immediately gave the child involved the correct medication, id. at 37, 40. Thus,
      the appellant’s statement that she did not realize that she had made the mistake at
      issue until after she returned from lunch is simply not credible. Nevertheless,
                                                                                       6

      rather than notify the center director or, as the agency directive specifically
      requires, the parents of the child who erroneously received the wrong medication,
      see, IAF, Tab 5 at 47, the record instead indicates that the appellant spoke with
      the center director to request an early lunch, but she failed to tell the center
      director about the incident that had just occurred, see IAF, Tab 10 at 12, Tab 5 at
      31.   Moreover, given that the appellant was told of her mistake right after it
      happened, her failure to notify the center director and to instead ask for an early
      lunch, all the while keeping her mistake to herself, more than justifies the
      deciding official’s opinion that the appellant could no longer be trusted and did
      not exhibit potential for rehabilitation. IAF, Tab 10 at 7, Tab 5 at 19-20.
¶11         Under all of these circumstances, we find that the deciding official
      adequately considered the relevant Douglas factors and that the penalty of
      removal falls within the tolerable limits of reasonableness.       Accordingly, we
      REVERSE the mitigation and SUSTAIN the appellant’s removal.                   This
      constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.   You must submit your request to the court at the following
      address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

            The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
                                                                                  7

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
