                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHEILA MOTT,                                    DOCKET NUMBER
                         Appellant,                  AT-0752-14-0451-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 16, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Archibald J. Thomas III, Jacksonville, Florida, for the appellant.

           Joy C. Vilardi-Rizzuto, Esquire, Tampa, Florida, 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
     mitigated her removal to a two-grade demotion. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or regulation or the erroneous application of the law to the facts of the case; the
     administrative 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2        The agency removed the appellant from her GS-07 Supervisory Medical
     Administration Specialist position under chapter 75 for three performance‑based
     charges. Initial Appeal File (IAF), Tab 4 at 63, 71-73, 89-93. The appellant filed
     the instant appeal. IAF, Tab 1. She did not request a hearing. Id. Following the
     close of the record, the administrative judge issued an initial decision in which he
     found that the agency failed to establish significant portions of its case and
     mitigated the appellant’s removal to a demotion to the position and grade she held
     prior to her promotion to supervisor, Medical Support Assistant, GS-05. IAF,
     Tab 45, Initial Decision (ID).
¶3        Regarding the agency’s first charge, failure to properly perform duties, the
     administrative judge only sustained 1 out of the agency’s 11 specifications,
     finding that, despite the large number of vacant appointment slots, the appellant
     actually had exceeded the required clinic utilization rate of 85%. ID at 5-8; IAF,
     Tab 4 at 89-91. He found that the agency only established specification 8 of the
     first charge, which involved the appellant’s decision to cancel 2 clinics based on
     unfilled slots and her supervisor’s assertion that she was able to fill the unfilled
                                                                                        3

     slots in about 20 minutes.     ID at 6; IAF, Tab 19 at 8, Tab 4 at 90.           The
     administrative judge struck the second and fifth specifications of the second
     charge, failure to perform supervisory duties, and the agency did not object to this
     finding. IAF, Tab 4 at 91-92, Tab 38 at 3, Tab 42 at 11. The administrative
     judge did not sustain the remaining three specifications and, consequently, did not
     sustain the second charge. ID at 8-9; IAF, Tab 4 at 91-92. On the third charge,
     failure to perform duties in a timely manner, the administrative judge sustained
     the agency’s sole specification, finding it more likely than not that the appellant
     failed to timely ensure the return of a terminal patient’s claim file to the regional
     office. ID at 10-11; IAF, Tab 4 at 92. The purpose of ensuring timely return of
     the file was to facilitate the adjudication of the patient’s pending claim before he
     passed away and thereby avoid the need for the patient’s family to resubmit the
     claim. ID at 10-11; IAF, Tab 4 at 92.
¶4         The appellant withdrew her discrimination and retaliation affirmative
     defenses during a prehearing status conference. IAF, Tab 1 at 15-17, Tab 38 at 2;
     ID at 1 n.2. The administrative judge raised a harmful error defense sua sponte
     because the agency’s notice of proposed removal incorrectly informed the
     appellant in one place that the agency had proposed her demotion instead of her
     removal; however, the administrative judge ultimately rejected the defense
     because the notice correctly identified the proposed action as the appellant’s
     removal nine other times. IAF, Tab 4 at 89-93, Tab 38 at 4; ID at 11. Although
     the nature of the charges established nexus because they involved the appellant’s
     ability to satisfactorily perform her duties, the administrative judge found that the
     appellant’s removal on the sustained charges did not promote the efficiency of the
     service because the agency only established 1 out of 11 specifications of the first
     charge and failed to establish the second charge in its entirety.      ID at 12-14.
     Because it was undisputed that the appellant performed satisfactorily in
     lower‑level positions, the administrative judge found the maximum reasonable
     penalty was demotion to the position and grade she held prior to her promotion to
                                                                                      4

     a supervisory position, Medical Support Assistant, GS‑05, and he mitigated the
     penalty accordingly. ID at 12-14.
¶5        In her petition for review, the appellant argues that the administrative judge
     erred in sustaining the first and third charges. Petition for Review (PFR) File,
     Tab 1 at 4-5. She also challenges the administrative judge’s characterization of
     her as a poor manager, arguing that he must not have reviewed her “extensive
     history of performance appraisals.” Id. at 5. She contends that the administrative
     judge favored others’ statements and that he ignored her sworn statement in favor
     of her unsworn statement.     Id. at 6.   The appellant also disagrees with her
     demotion “because all the charges and specifications against me were false” and
     submits significant additional documentation, but she does not explain the
     significance of these documents. Id.; PFR File, Tabs 2-3. The agency responds
     in opposition to the appellant’s petition for review, but it did not file a cross
     petition for review and does not challenge the administrative judge’s findings as
     to the charges or his mitigation of the penalty. PFR File, Tab 6.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6        Following the agency’s response to her petition for review, the appellant
     designated a new representative and filed a motion to submit an additional
     pleading.   PFR File, Tabs 7-8.     In response, the Acting Clerk of the Board
     informed the appellant that the Board’s regulations do not provide for pleadings
     other than a petition for review, a cross petition for review, a response to the
     petition for review or cross petition for review, and a reply to a response.
     PFR File, Tab 9; see 5 C.F.R. § 1201.114(a)(5). A description of these pleadings
     and the time limits for filing them are set forth in the Board’s regulations.
     5 C.F.R. § 1201.114(a), (e). For the Board to consider a party’s pleading, other
     than one of those set forth above, the party must describe the nature and need for
     the pleading. 5 C.F.R. § 1201.114(a)(5). If a party wishes to submit a pleading
                                                                                        5

     after the record has closed, the party also must show that the evidence was not
     readily available before the record closed. 5 C.F.R. § 1201.114(a)(5), (k).
¶7        The appellant describes the nature and need for her additional pleading and
     asserts that the evidence she seeks to submit proves that the C-file, which is the
     subject of the agency’s third charge, was actually shipped to the requester after
     only 2 days, arriving on August 9, not September 24, 2013, as the agency alleged.
     PFR File, Tab 8; ID at 10; IAF, Tab 4 at 92. She alleges the existence of a
     database that she contends would show not only that the agency was wrong about
     the date that the file was returned to the requestor, but that her chain of command
     concealed this information from her. PFR File, Tab 8. In addressing the issue of
     her diligence in pursuing this information, the appellant contends that she was
     unable to research the charge because the agency terminated her computer and
     physical access following her removal. Id.
¶8        We deny the appellant’s request. 5 C.F.R. § 1201.114(a)(5). Although the
     record reflects that discovery was contentious in this matter, IAF, Tab 10, the
     agency ultimately submitted extensive materials responsive to the appellant’s
     discovery requests, IAF, Tabs 30-35, and the record reflects that the appellant did
     not make any subsequent objections or renew her motion to compel.             To the
     extent that the appellant is now challenging the agency’s discovery response, her
     failure to do so following the agency’s response was not diligent.       Hebert v.
     Department of the Navy, 57 M.S.P.R. 68, 72-73 (1993). Similarly, the appellant
     acknowledges in her petition for review that she did not anticipate that the United
     Parcel Service tracking number she identified in her unsworn submission below
     would be too old for the administrative judge to retrieve the delivery information.
     PFR File, Tab 1 at 5.       The agency proposed the appellant’s removal on
     November 19, 2013, two months after the events at issue. IAF, Tab 4 at 89. She
     filed the instant appeal in February 2014. IAF, Tab 1. She does not explain why
     she failed to obtain the tracking information between the time when her removal
     was first proposed and when she filed her appeal. Under the circumstances, we
                                                                                         6

      find that the appellant failed to exercise due diligence and therefore is responsible
      for the absence of evidence to support her claims. Walton v. Tennessee Valley
      Authority, 48 M.S.P.R. 462, 468 (1991).           Consequently, we find that the
      administrative judge properly sustained the third charge. ID at 10‑11; IAF, Tab 4
      at 92.
¶9             Regarding the sustained charges, the appellant contends on review that she
      did not cancel the clinics as alleged in specification 8 of the first charge because
      she was out on leave. PFR File, Tab 1 at 4; IAF, Tab 4 at 90. Although the
      administrative judge did not mention this detail in the initial decision, the record
      reflects that the appellant called in from home on sick leave to cancel the clinics
      at issue. IAF, Tab 4 at 133-34. Moreover, in her contemporaneous response to
      her supervisor’s admonition for canceling the clinics, the appellant acknowledged
      that she canceled the clinics and did not fill the slots, as the agency alleged, and
      she questioned the usefulness of the clinics. Id. at 90, 134. Thus, we find that
      the administrative judge properly sustained this specification and, in light of the
      indisputable importance of getting veterans into open clinic slots to the
      fulfillment of the agency’s mission, we also agree with the administrative judge
      that this specification is sufficient to sustain the charge. ID at 5-8.
¶10            The balance of the appellant’s contentions on review involve the weight that
      the administrative judge gave to particular evidence and the conclusions he drew
      from those determinations.       PFR File, Tab 1 at 4-7.     Although there was no
      hearing and the administrative judge’s conclusions are therefore not entitled to
      the deference accorded demeanor-based observations, e.g., Haebe v. Department
      of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002), the appellant offers no reason to
      discount the administrative judge’s findings concerning the sustained charges or
      his decision to mitigate the penalty to a demotion. Moreover, in contrast to the
      appellant’s categorical statements that the administrative judge refused to
      consider her evidence and that the agency’s evidence was false, the record instead
      reflects that the administrative judge gave the appellant’s evidence serious
                                                                                       7

      consideration and that he held the agency to its burden of proof, finding that the
      agency failed to establish most of the specifications set forth in the notice of
      proposed removal and mitigating the penalty as a result. ID at 12-14.
¶11         Accordingly, we deny the appellant’s petition for review and affirm the
      initial decision.

                                            ORDER
¶12         We ORDER the agency to cancel the removal and substitute in its place a
      demotion to the position and grade of Medical Support Assistant, GS-05,
      effective January 19, 2014.      See Kerr v. National Endowment for the Arts,
      726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
      than 20 days after the date of this decision.
¶13         We also ORDER the agency to pay the appellant the correct amount of back
      pay, interest on back pay, and other benefits under the Office of Personnel
      Management’s regulations, no later than 60 calendar days after the date of this
      decision. We ORDER the appellant to cooperate in good faith in the agency’s
      efforts to calculate the amount of back pay, interest, and benefits due, and to
      provide all necessary information the agency requests to help it carry out the
      Board’s Order. If there is a dispute about the amount of back pay, interest due,
      and/or other benefits, we ORDER the agency to pay the appellant the undisputed
      amount no later than 60 calendar days after the date of this decision.
¶14         We further ORDER the agency to tell the appellant promptly in writing
      when it believes it has fully carried out the Board’s Order and of the actions it
      took to carry out the Board’s Order. The appellant, if not notified, should ask the
      agency about its progress. See 5 C.F.R. § 1201.181(b).
¶15         No later than 30 days after the agency tells the appellant that it has fully
      carried out the Board’s Order, the appellant may file a petition for enforcement
      with the office that issued the initial decision on this appeal if the appellant
      believes that the agency did not fully carry out the Board’s Order. The petition
                                                                                      8

      should contain specific reasons why the appellant believes that the agency has not
      fully carried out the Board’s Order, and should include the dates and results of
      any communications with the agency. 5 C.F.R. § 1201.182(a).
¶16        For agencies whose payroll is administered by either the National Finance
      Center of the Department of Agriculture (NFC) or the Defense Finance and
      Accounting Service (DFAS), two lists of the information and documentation
      necessary to process payments and adjustments resulting from a Board decision
      are attached. The agency is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjustments resulting from the
      Board’s decision in accordance with the attached lists so that payment can be
      made within the 60-day period set forth above.

                      NOTICE TO THE APPELLANT REGARDING
                            YOUR RIGHT TO REQUEST
                           ATTORNEY FEES AND COSTS
           You may be entitled to be paid by the agency for your reasonable attorney
      fees and costs. To be paid, you must meet the requirements set out at title 5 of
      the U.S. Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations
      may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe
      you meet these requirements, you must file a motion for attorney fees WITHIN
      60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file
      your attorney fees motion with the office that issued the initial decision on your
      appeal.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                                                                  9

                             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 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 U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
                                                                                 10

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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
                                                     DFAS CHECKLIST
                                      INFORMATION REQUIRED BY DFAS IN
                                     ORDER TO PROCESS PAYMENTS AGREED
                                       UPON IN SETTLEMENT CASES OR AS
                                        ORDERED BY THE MERIT SYSTEMS
                                             PROTECTION BOARD
     AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
                                                 CASES
     CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
         OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

     1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
            and POC to send.
     2. Statement that employee was counseled concerning Health Benefits and TSP and the
            election forms if necessary.
     3. Statement concerning entitlement to overtime, night differential, shift premium,
            Sunday Premium, etc, with number of hours and dates for each entitlement.
     4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
            System), a statement certifying any lump sum payment with number of hours and
            amount paid and/or any severance pay that was paid with dollar amount.
     5. Statement if interest is payable with beginning date of accrual.

     6. Corrected Time and Attendance if applicable.

        ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
      a. Outside earnings with copies of W2's or statement from employer.
       b. Statement that employee was ready, willing and able to work during the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
       Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
   a. Employee name and social security number.
   b. Detailed explanation of request.
   c. Valid agency accounting.
   d. Authorized signature (Table 63)
   e. If interest is to be included.
   f. Check mailing address.
   g. Indicate if case is prior to conversion. Computations must be attached.
   h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
   a. Must provide same data as in 2, a-g above.
   b. Prior to conversion computation must be provided.
   c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
