Case: 19-1811    Document: 37     Page: 1   Filed: 05/11/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                LILIBETH MICHELSON,
                      Petitioner

                             v.

            DEPARTMENT OF THE ARMY,
                     Respondent
               ______________________

                        2019-1811
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. AT-0752-18-0424-I-1.
                 ______________________

                  Decided: May 11, 2020
                  ______________________

     JACK BRADLEY JARRETT, III, Alan Lescht and Associ-
 ates, PC, Washington, DC, for petitioner.

     ISAAC B. ROSENBERG, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent. Also represented by JOSEPH H.
 HUNT, REGINALD THOMAS BLADES, JR., ROBERT EDWARD
 KIRSCHMAN, JR.
                   ______________________
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 2                                         MICHELSON   v. ARMY



         Before CHEN, LINN, and STOLL, Circuit Judges.
 PER CURIAM.
     Lilibeth Michelson (“Michelson”), a former Supply
 Technician at the Reserve Officer Training Corps in Day-
 tona Beach, Florida, appeals from the final decision of the
 Merit Systems Protection Board (“Board”), stemming from
 the Initial Decision of the Administrative Judge (“AJ”), af-
 firming her removal from Federal Service based on three
 charges: (1) absent without leave (“AWOL”) from January
 9, 2018 through January 19, 2018; (2) failure to follow di-
 rections on January 29, 2018; and (3) creating a disturb-
 ance on January 29, 2018. Michelson v. Dep’t of the Army,
 No. AT-0752-18-0424-I-1 (Dec. 21, 2018) (“Initial Deci-
 sion”). Because the AJ’s Initial Decision was in accordance
 with law and supported by substantial evidence, we affirm.
      Petitioner has the burden to show that the agency ac-
 tion is “(1) arbitrary, capricious, an abuse of discretion, or
 otherwise not in accordance with law; (2) obtained without
 procedures required by law, rule, or regulation having been
 followed; or (3) unsupported by substantial evidence.”
 5 U.S.C. § 7703(c).
     With regard to the first charge, Michelson argues that
 the AJ erred by not accepting an October 25, 2018 letter
 from nurse practitioner Anthony Lagana as administra-
 tively acceptable evidence of Michelson’s anxiety and de-
 pression during the AWOL period. Substantial evidence
 supports the AJ’s finding that Lagana’s October 25, 2018
 letter was not administratively acceptable. 1 As the AJ cor-
 rectly found, several problems undermine the force of that
 letter. Most fundamentally, the letter does not go into de-
 tail about the relationship between Michelson’s anxiety


     1   Because the letter was found not to be administra-
 tively acceptable, we need not address whether the letter,
 dated after Michelson’s removal, was properly considered.
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 MICHELSON   v. ARMY                                        3



 and depression and her inability to perform her work. Ra-
 ther, the letter was conclusory in its key statements that
 “Ms. Michelson needed to be off work until 1/19/18 for med-
 ical purposes due to her anxiety and depression,” and was
 “medically incapacitated and unable to attend work.” J.A.
 42. See Young v. U.S. Postal Serv., 79 M.S.P.R. 25, 33
 (1998) (rejecting, due to a “lack of detail as to the medical
 condition, the diagnosis and prognosis,” a letter stating
 that “the appellant was unable to work” because “she was
 ‘overwhelmed and depressed’”). Moreover, the letter’s con-
 clusions were based on Michelson’s appointment with
 nurse practitioner Kayla Ritzel on December 13, 2017, a
 visit that was scheduled as a follow-up visit for a sore
 throat. According to the contemporaneous progress notes
 of that appointment, anxiety was discussed, but there is no
 indication that Michelson would be imminently unable to
 perform her work duties. Indeed, the notes show that,
 while Michelson requested a month off “to help her anxiety,
 depression and get her started on her new meds,” J.A. 76,
 Ritzel made no determination that this was a medical ne-
 cessity.
     Moreover, as detailed in the Agency’s removal letter,
 Michelson had thrice sought and been denied various types
 of leave for much of the time period for which she was
 AWOL: once as annual leave (January 8 through 19), once
 to take care of her ill father (January 8 through 16), and
 once based on a December 15, 2017 letter from Ritzel (De-
 cember 18 through January 19).
      Additionally, Michelson argues that the AJ refused to
 consider Lagana’s letter of October 25 because it was sub-
 mitted after the AJ’s determination, and that this was er-
 ror. See Initial Decision at 14 (“Further, the appellant
 failed to provide this information to the agency in a timely
 manner even in response to the notice of proposed removal.
 Thus, the agency’s AWOL decision remains appropriate”
 (citing Atchley v. Dept’ of the Army, 46 M.S.P.R. 297, 301
 (1990))). However, the AJ did, in fact, consider that letter,
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 4                                          MICHELSON   v. ARMY



 and found it to be not administratively acceptable for sub-
 stantive reasons. Id. at 13–14 (“[E]ven if [Lagana’s letter]
 had been timely submitted, this note does not comply with
 the leave restriction letter because it is conclusory and fails
 to explain the appellant’s incapacitation.”).
     Charges 2 and 3 address Michelson’s actions on Janu-
 ary 29, 2018, the first day of her suspension. 2 With respect
 to charge 2—failure to follow directions by going to work on
 January 29, 2018—Michelson argues that the letter sus-
 pending her was ambiguous as to whether her suspension
 began upon receipt of the standard form 50 or on a date
 certain. The letter stated: “[Y]ou will be suspended from
 duty without pay for seven (7) calendar days beginning
 Monday, 29 January 2018 through Sunday, 4 February
 2018,” and “A Standard Form 50, Notification of Personnel
 Action, documenting your suspension will be forwarded
 separately.” J.A. 93.
     As the AJ correctly found, Michelson’s suspension un-
 ambiguously began on January 29, and was not contingent
 on the receipt of Standard Form 50. Initial Decision at 15
 (“COL Kraft’s letter is unambiguous that the appellant was
 to be suspended on January 29, 2018. While it does state
 that an SF-50 will be issued, it does not indicate that the
 suspension will be held in abeyance until CPAC issues the
 SF-50.”). “The appellant does not dispute that she came to
 work on January 25, 2018.” Id. Substantial evidence sup-
 ports the AJ’s determination that Michelson failed to follow
 the unambiguous instruction not to be at work on January
 29.
     Michelson exacerbated that failure by remaining on
 campus at the computer lab after she was explicitly told to
 “leave the premises because she was officially suspended.”



     2   The suspension was independent of the AWOL
 dates in charge 1.
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 MICHELSON   v. ARMY                                        5



 Id. at 16. The AJ was within her discretion to credit the
 contemporaneous statement by CPT Karlewicz about the
 interaction and to discount Michelson’s assertion that she
 did not understand that “premises” referred to the whole
 campus and not just the supply room. Substantial evidence
 thus supports the AJ’s determination as to charge 2.
     Charge 3—creating a disturbance by failing to leave
 the premises—is also supported by substantial evidence.
 Michelson argues that she was not violent and did not
 curse or resist when found in the computer lab, and there-
 fore was not creating a disturbance. However, Michelson’s
 failure to leave after her confrontation with Karlewicz ne-
 cessitated an “unnecessary[ily] disrupti[ve]” search of “the
 work place,” J.A. 82, and an escort to ensure Michelson left
 the premises. The determination of whether that “re-
 sult[ed] in an adverse effect on morale, production, or
 maintenance of proper discipline,” AR 690-700, Chapter
 751, was within the Agency’s discretion.
      Finally, we reject Michelson’s challenge to the Agency’s
 choice to remove Michelson from her position. Michelson
 failed to establish that the AJ erred in sustaining any of
 the Agency’s three charges. Moreover, as the AJ correctly
 observed, the Agency considered and balanced all of the rel-
 evant factors set forth in Douglas v. Department of Veter-
 ans Affairs, 5 M.S.P.R. 289, 305–06 (1981), including
 Michelson’s length of service with the Agency, in selecting
 the penalty of removal. Initial Decision at 23–24. We agree
 with the AJ that the Agency’s penalty did not “clearly ex-
 ceed[] the bounds of reasonableness.” Parker v. U.S. Postal
 Serv., 111 M.S.P.R. 510, 514 (2009), aff’d, 355 F. App’x 410
 (Fed. Cir. 2009).
                              * **
      For all the above reasons, we hold that the Board’s de-
 cision was in accordance with law and supported by sub-
 stantial evidence.
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 6                                     MICHELSON   v. ARMY



                      AFFIRMED
                         COSTS
     No costs.
