                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DENISE NUNNERY,                                 DOCKET NUMBER
                  Appellant,                         DA-0752-15-0378-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: June 9, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Terrence J. Johns, New Orleans, Louisiana, for the appellant.

           Sandy S. Francois, New Orleans, Louisiana, 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
     sustained her removal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 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: (1) clarify the basis for finding that the appellant failed to
     prove that the agency violated her due process rights when the deciding official
     considered her lack of remorse as an aggravating factor without advance notice;
     and (2) address the appellant’s argument that the agency’s choice of deciding
     official violated her due process rights, we AFFIRM the initial decision.

                                     BACKGROUND
¶2        On March 4, 2015, the agency proposed the appellant’s removal from her
     position as a Program Analyst based on charges of absence without leave
     (AWOL) (15 specifications) and failure to follow proper leave request procedures
     (8 specifications). Initial Appeal File (IAF), Tab 6 at 16‑20. After the appellant,
     through her union, submitted a written response to the notice of proposed
     removal, IAF, Tab 5 at 24‑25, the deciding official sustained the charges and
     removed the appellant, effective April 17, 2015, id. at 8‑10. Both the decision
     notice and a Douglas factors worksheet prepared by the deciding official
     indicated that the deciding official considered, among other factors, the
     appellant’s lack of remorse as an aggravating factor, id. at 9, 31, although the
     notice of proposed removal did not discuss the appellant’s lack of remorse, IAF
     Tab 6 at 16‑22.
                                                                                            3

¶3         The appellant filed a timely Board appeal challenging her removal, and
     raised affirmative defenses of disability discrimination and a violation of due
     process. IAF, Tab 1 at 4, 6, Tab 14 at 4‑5. The administrative judge held the
     appellant’s requested hearing on September 23, 2015.            IAF, Tab 31, Hearing
     Compact Disc (HCD). At hearing, the deciding official testified that, in reaching
     her decision to remove the appellant, she did not consider any information
     besides the contents of the notice of proposed removal, the appellant’s written
     response, and the appellant’s prior discipline (which was referenced in the notice
     of proposed removal), and that it was the appellant’s response to the notice of
     proposed removal that led her to conclude that the appellant lacked remorse.
     HCD (testimony of the deciding official).
¶4         Following the hearing, the administrative judge issued an initial decision
     affirming the appellant’s removal. IAF, Tab 32, Initial Decision (ID). She found
     that the agency proved all of the charges and specifications.                ID at 2‑6.
     Specifically, she found that the agency proved that the appellant was AWOL for 1
     day in December 2014, 6 days in January 2015, and 8 days in February 2015. ID
     at 2‑4.   She further found that the appellant admitted that the agency’s leave
     request procedures required her to call in every day that she would be absent from
     work, even when she was absent on consecutive days, and that the appellant
     failed to do so on the dates at issue in the charge of failure to follow leave request
     procedures. ID at 4‑5.
¶5         The administrative judge found that the appellant failed to prove her
     affirmative defense of disability discrimination. 2        ID at 12.     Regarding the
     appellant’s affirmative defense of a due process violation, citing Stone v. Federal
     Deposit Insurance Corporation, 179 F.3d 1368, 1376‑77 (Fed. Cir. 1999), and


     2
       On review, the appellant does not challenge the administrative judge’s finding that she
     failed to prove her affirmative defense of disability discrimination, and we discern no
     basis to disturb this finding. Petition for Review File, Tab 1.
                                                                                            4

     Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011), the
     administrative judge found that the deciding official relied on an ex parte
     communication when she considered the appellant’s lack of remorse in her
     response to the notice of proposed removal, because the agency did not provide
     advance notice that this aggravating factor would be considered. ID at 13‑14.
     However, the administrative judge found that, because the deciding official
     testified that she afforded very little weight to her conclusion that the appellant
     lacked remorse, the ex parte communication was not sufficiently substantial and
     likely to cause prejudice to constitute a due process violation. 3 ID at 14. Finally,
     the administrative judge found that the agency proved a nexus between the
     charges and the efficiency of the service, ID at 14, and that the penalty of
     removal was reasonable, ID at 15‑16.
¶6         The appellant has filed a petition for review of the initial decision, and the
     agency has opposed the petition for review.         Petition for Review (PFR) File,
     Tabs 1, 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge correctly found that the agency proved the charges.
¶7         On review, the appellant appears to challenge the administrative judge’s
     finding that the agency proved the charges. PFR File, Tab 1 at 4. Specifically,
     she contends that she did not admit that the agency’s leave request policy
     required her to call in every day that she would be absent from work, even when




     3
       Under Ward, even if an ex parte communication does not rise to the level of a due
     process violation, the deciding official’s consideration of an aggravating factor without
     advance notice may constitute harmful procedural error. 634 F.3d at 1281‑82. Here,
     the appellant has not alleged that the agency committed harmful procedural error, and
     thus, we need not address this issue further.
                                                                                       5

     she was absent on consecutive days, and that the agency’s policy did not require
     her to do so. 4 Id.
¶8         Contrary to the appellant’s assertions on review, on more than one occasion
     during the hearing, the appellant admitted that the agency’s policy required her to
     call in every day that she would be absent from work, even when she was absent
     on consecutive days, although she indicated that she disagreed with the soundness
     of that policy. HCD (testimony of the appellant); see Cole v. Department of the
     Air Force, 120 M.S.P.R. 640, ¶ 9 (2014) (finding that an appellant’s admissions
     may suffice as proof of a charge without additional proof from the agency).
     Moreover, the agency’s absence and leave policy states that, when an employee
     requests emergency sick leave, but is unable to provide a return to duty date, he
     or she may be told to call in daily, and the appellant admitted that she received a
     copy of this policy.      IAF, Tab 9 at 20; HCD (testimony of the appellant).
     Furthermore, the record contains a January 31, 2013 email that an agency
     supervisor sent to the appellant and several other employees, which stated that
     “[e]veryone is required to call in everyday [sic] when out sick,” and the appellant
     admitted at hearing that she did not do so. IAF, Tab 7 at 10‑11; HCD (testimony
     of the appellant).    For these reasons, we find that the appellant has failed to
     demonstrate error in the administrative judge’s findings that the agency proved
     the charges of AWOL and failure to follow leave request procedures. ID at 2‑6.




     4
       To prove a charge of AWOL, an agency must show by preponderant evidence that the
     employee was absent and that her absence was not authorized or that her request for
     leave was properly denied. Wesley v. U.S. Postal Service, 94 M.S.P.R. 277, ¶ 14
     (2003). Therefore, we construe the appellant’s argument that she was not required to
     call in on consecutive days as a challenge to the administrative judge’s findings
     regarding the AWOL charge as well as the charge of failure to follow leave
     request procedures.
                                                                                         6

      The agency did not violate the appellant’s due process rights when the deciding
      official considered her lack of remorse in her response to the notice of proposed
      removal without advance notice.
¶9          On review, the appellant reiterates her argument, raised below, that the
      agency violated her due process rights when the deciding official considered her
      lack of remorse as an aggravating factor when this factor was not discussed in the
      notice of proposed removal. PFR File, Tab 1 at 4.
¶10         When an agency intends to rely on aggravating factors as the basis for
      imposing a penalty, such factors should be included in the advance notice of the
      adverse action so that the employee will have a fair opportunity to respond to
      those factors before the deciding official.         Lopes v. Department of the
      Navy, 116 M.S.P.R. 470, ¶ 5 (2011). If an employee has not been given notice of
      an aggravating factor supporting an enhanced penalty, an ex parte communication
      with the deciding official regarding such a factor may constitute a constitutional
      due process violation because it potentially deprives the employee of notice of all
      the evidence being used against him and the opportunity to respond to it. Ward,
      634 F.3d at 1280; Lopes, 116 M.S.P.R. 470, ¶ 6. However, not every failure to
      list an aggravating factor in the proposal notice rises to the level of a due process
      violation; rather, a due process violation occurs only when “new and material
      information” is considered that is “so substantial and so likely to cause prejudice
      that no employee can fairly be required to be subjected to a deprivation of
      property under such circumstances.”       Ward, 634 F.3d at 1279; see Bennett v.
      Department of Justice, 119 M.S.P.R. 685, ¶ 7 (2013).
¶11         We agree with the administrative judge’s conclusion that the appellant
      failed to establish that the agency violated her due process rights, but for a
      different reason than the one discussed by the administrative judge. ID at 13‑14.
      The deciding official’s conclusion that the appellant lacked remorse was based
                                                                                              7

      solely on the appellant’s response to the notice of proposed removal. 5             HCD
      (testimony of the deciding official). The Board has held that a deciding official
      does not violate an appellant’s right to due process when he or she considers
      issues raised in an appellant’s response to a proposed adverse action and then
      rejects those arguments in reaching a decision.             Mathis v. Department of
      State,     122 M.S.P.R.     507,    ¶9    (2015);     Grimes      v.   Department      of
      Justice, 122 M.S.P.R. 36, ¶ 13 (2014); Wilson v. Department of Homeland
      Security, 120 M.S.P.R. 686, ¶¶ 11‑12 (2014), aff’d, 595 F. App’x 995 (Fed. Cir.
      2015); see 5 C.F.R. § 752.404(g)(1) (providing that, in rendering a decision on a
      proposed adverse action, the agency will consider the reasons specified in the
      notice “and any answer” that the employee or her representative makes to the
      designated official).     Furthermore, the Board has held that an employee is not
      entitled to know the particular weight that a deciding official will attach to her
      arguments raised in response to the proposed adverse action in advance of a final
      decision. Grimes, 122 M.S.P.R. 36, ¶ 13; Wilson, 120 M.S.P.R. 686, ¶ 12.
¶12            We find the Board’s decision in Talavera v. Agency for International
      Development, 104 M.S.P.R. 445, ¶ 10 (2007), and the U.S. Court of Appeals for
      the Federal Circuit’s decision in Harding v. U.S. Naval Academy, 567 F. App’x
      920, 925 (Fed. Cir. 2014), to be instructive in this regard. 6 In Talavera, the
      Board found that an agency did not violate an appellant’s due process rights


      5
        On review, the appellant claims that the deciding official admitted that her decision to
      terminate the appellant was based on “a collaboration of her and others to include the
      proposing Official.” PFR File, Tab 1 at 4. To the contrary, the deciding official
      testified that she did not discuss her decision with the proposing official, or anyone
      else, except to consult with an Employee Relations Specialist to ensure that she
      understood how to apply the factors for determining an appropriate penalty enumerated
      in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305‑06 (1981).                HCD
      (testimony of the deciding official).
      6
        Although Harding is an unpublished decision, the Board may rely on unpublished
      Federal Circuit decisions where, as here, it finds the court’s reasoning persuasive.
      Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
                                                                                         8

      where a deciding official considered the fact that the appellant made false
      statements in her response to a notice of proposed removal without advance
      notice.   104 M.S.P.R. 445, ¶ 10.     The Board concluded that it was “entirely
      appropriate” for the deciding official to consider the fact that the appellant made
      false statements in her response, because it was relevant to her potential for
      rehabilitation. Id. Similarly, in Harding, the court held that an appellant failed
      to establish that an agency violated her due process rights where a deciding
      official considered the intentional nature of her actions as an aggravating factor
      without advance notice, because the deciding official’s reliance on this factor
      could “not reasonably have come as a surprise” to the appellant where she
      “effectively admitted” that she had acted intentionally in her response to the
      notice of proposed removal. 567 F. App’x at 925.
¶13         Consistent with Talavera and Harding, here, we find that the agency did not
      violate the appellant’s due process rights when the deciding official considered
      the arguments that the appellant raised in her response to the notice of proposed
      removal, and concluded that those arguments reflected a lack of remorse for her
      actions. Indeed, the agency could not have notified the appellant in its proposal
      notice that it would consider the lack of remorse in her written response because
      the response postdated the agency’s proposal notice, as it almost always must do.
      We therefore affirm the administrative judge’s finding that the agency did not
      violate the appellant’s due process rights when the deciding official considered
      the appellant’s lack of remorse as an aggravating factor without advance notice.
      The agency’s choice of deciding official did not violate the appellant’s due
      process rights.
¶14         On review, the appellant contends that the agency’s choice of deciding
      official violated her due process rights because “the deciding official made the
      decision to have [her] issued AWOL; she should therefore not [have] been the
      Deciding Official . . . for the same AWOL that she instructed the supervisor to
      issue.”   PFR File, Tab 1 at 4.     The administrative judge did not address this
                                                                                               9

      argument in the initial decision, and therefore, we modify the initial decision to
      address the argument in the first instance on review. 7
¶15         During the hearing, the deciding official testified that, pursuant to agency
      policy, she was the approving official for any AWOL or leave without pay
      (LWOP) requests for employees in the agency’s Financial Management Service
      Division.    HCD (testimony of the deciding official).            The deciding official
      explained that each pay period, after the appellant completed and submitted her
      timesheet, if the timesheet indicated that the appellant was absent without
      approved leave, she would consult with the appellant’s supervisor to determine
      whether the absences should be designated as AWOL or LWOP. Id. She further
      testified that if the appellant’s supervisor reported that the appellant had called in,
      spoken to her, and explained that she was not coming to work, she granted the
      appellant LWOP. Id.
¶16         A deciding official’s awareness of background information concerning the
      appellant, her concurrence in the desirably to take an adverse action, or her
      predisposition to impose a severe penalty do not disqualify her from serving as a
      deciding    official   on   due   process   grounds.       Lange    v.   Department     of
      Justice, 119 M.S.P.R. 625, ¶ 9 (2013); Martinez v. Department of Veterans
      Affairs, 119 M.S.P.R. 37, ¶¶ 7‑8, 11 (2012). Instead, our reviewing court has
      held that a deciding official’s knowledge of an employee’s background only
      raises due process concerns when that knowledge is a basis for the deciding
      official’s determinations on either the merits of the underlying charge or the

      7
        Below, the appellant raised this argument in the first instance during closing argument
      at the conclusion of the hearing. ID; HCD (closing argument of the appellant’s
      representative). However, the appellant raised an affirmative defense of violation of
      due process prior to the prehearing conference. IAF, Tab 16 at 2. Construing the
      appellant’s pleadings liberally, we find that the appellant did not waive her argument
      that the choice of deciding official violated her due process rights by failing to raise it
      until the conclusion of the hearing. See 5 C.F.R. § 1201.24(b) (requiring an appellant
      to show good cause for raising claims or defenses for the first time after the conference
      defining the issues in the case).
                                                                                       10

      penalty to be imposed. Norris v. Securities & Exchange Commission, 675 F.3d
      1349, 1354 (Fed. Cir. 2012).
¶17         Here, as discussed previously, the deciding official’s unrebutted testimony
      established that, in reaching her decision to remove the appellant, she did not
      consider any information besides the contents of the notice of proposed removal,
      the appellant’s written response, and the appellant’s prior discipline.       HCD
      (testimony of the deciding official).    Accordingly, the fact that the deciding
      official had prior knowledge of the appellant’s absences, and designated those
      absences as AWOL or LWOP based on representations of the appellant’s
      supervisor, fails to establish a violation of the appellant’s due process rights.
      See Lange, 119 M.S.P.R. 625, ¶ 11 (finding that a deciding official’s involvement
      in an appellant’s pre-removal Office of Professional Responsibility investigation
      did not violate the appellant’s due process rights where the deciding official
      did not consider this involvement in his decision on the appellant’s removal).
      The administrative     judge correctly found that the         penalty of    removal
      was reasonable.
¶18         Where, as here, all of the agency’s charges are sustained, the Board will
      review the agency-imposed penalty only to determine if the agency considered all
      the relevant factors and exercised management discretion within the tolerable
      limits of reasonableness. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11
      (2010). In making this determination, the Board must give due weight to the
      agency’s primary discretion in maintaining employee discipline and efficiency,
      recognizing   that   the Board’s   function   is not   to   displace   management’s
      responsibility, but to ensure that managerial judgment has been properly
      exercised. Id.
¶19         On review, the appellant challenges the administrative judge’s finding that
      the penalty of removal was reasonable. PFR File, Tab 1 at 4. First, as she did
      below, she argues that the deciding official failed to consider her 17 years of
      service.   Id.; see IAF, Tab 1 at 6.     The deciding official did consider the
                                                                                      11

      appellant’s length of service, but concluded that it was a neutral, rather than a
      mitigating factor in light of the fact that the appellant had recently been
      disciplined for similar misconduct and her behavior had not changed.           HCD
      (testimony of the deciding official); IAF, Tab 5 at 28‑29.         Even assuming,
      however, that the deciding official should have characterized the appellant’s
      length of service as mitigating, rather than neutral, we nevertheless find that the
      penalty of removal was within the tolerable limits of reasonableness.           See
      Neuman v. U.S. Postal Service, 108 M.S.P.R. 200, ¶ 21 (2008) (observing that the
      Board may mitigate a penalty when the deciding official failed to demonstrate
      that he considered any specific, relevant mitigating factors; however, it may
      impose the same penalty imposed by the agency based on a justification of that
      penalty    as   the    maximum    reasonable    penalty    after   balancing    the
      mitigating factors).
¶20         The Board has held that AWOL is a serious offense that warrants a severe
      penalty.   Bowman v. Small Business Administration, 122 M.S.P.R. 217, ¶ 12
      (2015). Similarly, failure to follow agency leave requesting procedures also can
      be a serious act of misconduct. Id. The appellant was AWOL for 112 hours, on
      15 workdays, over a period of approximately 2 months, and failed to follow leave
      request procedures on eight occasions during that same time period. IAF, Tab 6
      at 16‑20. In addition, the deciding official properly considered the appellant’s
      prior 7-day suspension for AWOL, failure to follow leave request procedures, and
      submission of inaccurate time and attendance records as aggravating factors.
      IAF, Tab 5 at 28, Tab 7 at 17‑18; see Douglas, 5 M.S.P.R. at 305 (finding that an
      employee’s prior discipline is a factor to consider in determining the penalty for
      misconduct).    Moreover, in the August 2014 decision notice imposing the
      appellant’s prior 7-day suspension, the agency notified her that any further
      AWOL or failure to follow leave request procedures would “result in additional
      disciplinary action being taken, up to and including removal from the Federal
                                                                                       12

      Service.”    IAF, Tab 7 at 17‑18; see Jinks v. Department of Veterans
      Affairs, 106 M.S.P.R. 627, ¶ 25 (2007) (finding that prior disciplinary action may
      be considered notice that the appellant had been warned about the type of
      misconduct involved).    In sum, we find that the appellant’s length of service
      does not outweigh the significant aggravating factors at issue here.
¶21        We also have considered the appellant’s argument on review that the agency
      failed to apply progressive discipline because her prior discipline consisted of
      only a 7-day suspension and find it unpersuasive. PFR File, Tab 1 at 5. As an
      initial matter, the appellant has failed to identify any agency policy or applicable
      collective bargaining agreement provision requiring the agency to apply
      progressive discipline. Id. Furthermore, given that the appellant was AWOL for
      a total of 15 days, removal would have been within the range of the agency’s
      Table of Penalties, even if this had been the appellant’s first offense. IAF, Tab 8
      at 10. For this reason, and the reasons discussed above, we find that the appellant
      has failed to demonstrate error in the administrative judge’s finding that the
      penalty of removal was reasonable.

                      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 U.S. 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
                                                                                13

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 U.S. 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
                                                                           14

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.
