                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ALICIA R. MCPETERS,                             DOCKET NUMBER
                   Appellant,                        SF-0752-13-0240-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: October 21, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Bobbie Bowling, and Clifford H. Thomas III, Stockton, California, for the
             appellant.

           Nancy C. Rusch, Esquire, Stockton, California, 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
     reversed the appellant’s removal. For the reasons discussed below, we GRANT
     the agency’s petition for review, REVERSE the initial decision, and SUSTAIN
     the appellant’s removal.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2         The appellant was removed from her position as a Distribution Process
     Worker, WG-6901-05, at the Defense Logistics Agency in San Joaquin,
     California.       MSPB Docket No. SF-0752-13-0240-I-1, Initial Appeal File
     (0240 IAF), Tab 1, Tab 6, Subtab 4a. She was removed on grounds of failure to
     comply with the Drug Free Workplace Program (DFWP) and disruption in the
     workplace. Id., Tab 6, Subtabs 4d, 4f.
¶3         The appellant was initially appointed to the federal service effective
     February 17, 2009. Id., Subtab 4a. On December 14, 2010, she received a leave
     restriction letter advising that her leave records showed “a frequent and
     unpredictable pattern of tardiness and unscheduled leave.”    Id., Subtab 4hh. On
     October 3, 2011, she received a 5-day suspension, mitigated to a 1-day
     suspension, for absence without leave (AWOL) and failure to request leave in
     accordance with established procedures. Id., Subtabs 4u-4v. The agency offered,
     and the appellant signed, an agreement to hold the suspension in abeyance for
     1 year.   Id., Subtab 4u at 3-4.     On October 31, 2011, however, the agency
     imposed the suspension because of “numerous instances of not calling in within
     two hours of [her] shift, tardiness, and [being] charged with 19.50 hours of
     [AWOL] for [pay period ending] October 22, 2011.” Id., Subtab 4t. The agency
     issued a 1-year addendum to her leave restriction letter on December 14, 2011.
     Id., Subtab 4j.
¶4         On December 20, 2011, the agency proposed to suspend the appellant for
     30 days. Id., Subtab 4i. The agency charged her with failure to request leave in
     accordance with established procedures, failure to follow instructions, AWOL,
     and a first offense of illegal drug use. Id. The appellant had tested positive for
     amphetamines,       cocaine,   and   methamphetamines     following    a   forklift
     accident. 2 Id.; see id., Subtab 4k; see also McPeters v. Department of Defense,


     2
       The appellant’s position is subject to mandatory drug testing. 0240 IAF, Tab 6,
     Subtab 4kk. Employees subject to mandatory drug testing may be tested based on
     reasonable suspicion of drug use or in connection with serious accidents. Id. at 1.
                                                                                              3

     MSPB Docket No. SF-0752-12-0556-I-1, Initial Appeal File (0556 IAF), Tab 16,
     Initial Decision (Sept. 20, 2012) (0556 ID); 3 0556 IAF, Tab 5, Subtab 4n. 4
¶5           The appellant agreed to serve the suspension. She waived her grievance
     and Board appeal rights and requested that the suspension begin on January 13,
     2012. 0556 IAF, Tab 5, Subtab 4m. Her suspension ended on February 11, 2012.
     Id., Subtabs 4l-4k. Under the agency’s DFWP instruction, 5 the appellant also was
     required “to successfully complete a certified rehabilitation program” for
     substance abuse arranged through the agency’s Employee Assistance Program
     (EAP) and to undergo follow-up testing. 0240 IAF, Tab 6, Subtab 4i at 3; see
     also 0240 IAF, Tab 6, Subtab 4h.
¶6           The appellant returned to duty on February 13, 2012. See 0556 IAF, Tab 5,
     Subtab 4i. On February 15, 2012, she was 6 minutes tardy and charged .25 hours
     of AWOL. Id. On subsequent days, she failed to call in to request leave and
     either reported late or failed to report at all. Id., Tab 5, Subtabs 4e, 4h, 4i. The
     agency thus proposed and removed the appellant on grounds of failure to request
     leave in accordance with established procedures, AWOL, and failure to follow
     instructions. Id., Subtabs, 4b-4c. She was removed from the agency effective
     May 5, 2012. Id., Subtab 4a.
¶7           The appellant filed a Board appeal. 0556 IAF, Tab 1. The administrative
     judge     reversed    the   agency     action,   finding   that   the   deciding   official
     inappropriately considered ex parte communications arising from absences that


     Additionally, these employees are “subject to periodic, unannounced drug testing to
     ensure that they remain drug-free.” Id. at 3.
     3
      The initial decision became the final decision of the Board when neither party filed a
     petition for review.
     4
       Because the appellant appealed the removal, a Board record exists. We take official
     notice of that record. See 5 C.F.R. § 1201.64 (The Board may “may take official notice
     of matters of common knowledge or matters that can be verified. . . . The taking of
     official notice of any fact satisfies a party’s burden of proving that fact.”).
     5
         See 0240 IAF, Tab 6, Subtab 4jj.
                                                                                           4

     occurred after the proposal notice had been issued.             0556 ID at 6-11.   The
     appellant was reinstated and awarded back pay and other benefits.                  0556
     ID at 12-13. She returned to duty on October 23, 2012. See 0556 ID; see also
     0240 IAF, Tab 6, Subtab 4f at 1. On November 14, 2012, the agency proposed
     her removal on grounds of failure to comply with the DFWP and disruption in the
     workplace. 0240 IAF, Tab 6, Subtab 4f. She was removed effective February 9,
     2013. Id., Subtab 4d. This appeal followed. 0240 IAF, Tab 1.
¶8           The administrative judge construed the charge of failure to comply with the
     DFWP as containing two specifications, explaining that the agency alleged two
     distinct types of noncompliance with the mandatory treatment program.
     0240 IAF, Tab 38, Initial Decision (Jan. 2, 2014) (0240 ID) at 8. She declined to
     sustain both specifications of that charge, as well as the single specification of
     disruption in the workplace. 0240 ID at 17, 19, 23. The appellant argued that the
     agency committed harmful error by failing to give her adequate notice of the
     dates upon which she failed to comply with the DFWP. The administrative judge
     rejected that argument. 0240 ID at 24. The administrative judge reversed the
     agency’s removal action and ordered the appellant’s reinstatement.           0240 ID
     at 24-25.
¶9           The agency filed a petition for review. 6 Petition for Review (PFR) File,
     Tab 1. On review, the agency argues that the administrative judge abused her
     discretion when she split the charge of failure to comply with the DFWP into two
     specifications. See id. at 9-10. In explaining her decision, the administrative
     judge cited the Board’s long-held principle that “when a single stated charge
     contains two acts of misconduct that are not dependent upon each other and do
     not comprise a single, inseparable event, each act constitutes a separate
     charge.” 0240 ID at 8 (quoting Walker v. Department of the Army, 102 M.S.P.R.
     474, ¶ 7 (2006)). The agency asserts that the administrative judge construed the

     6
         The appellant did not respond to the petition for review.
                                                                                          5

      charge hyper-technically, effectively forgiving the appellant for documented
      noncompliance. PFR File, Tab 1 at 10. The agency also argues that the language
      of the proposal notice shows it had intended the charge to be construed as a single
      specification. Id. at 11.
¶10         The administrative judge did not abuse her discretion when she split the
      first charge into two specifications. The Board generally may not split a single
      charge into several independent charges and then sustain one of the
      newly-formulated charges representing only a portion of the original charge.
      Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990); see,
      e.g., Acox v. U.S. Postal Service, 76 M.S.P.R. 111, 113-14 (1997) (Board could
      not split charge of “verbal abuse and physical threats made to another employee”;
      the agency was required to prove both verbal abuse and physical threat). If the
      agency cannot prove one or more of the elements of its original charge, the Board
      cannot sustain the charge. Burroughs, 918 F.2d at 172. In contrast, the Board
      may split a charge when the agency has set forth more than one event, act, or
      factual specification in support of the charge. Id.
¶11         Such is the case here.    The single charge of failure to comply with the
      DFWP may be reasonably divided into two independent series of events
      representing two distinct forms of noncompliance. As the administrative judge
      divided the charge, the first specification pertained to the appellant’s failure
      between January and March 2012, to attend many of the mandatory substance
      abuse treatment sessions and 12-step recovery meetings for the outpatient
      program in which she was enrolled.        0240 ID at 8.      The second specification
      pertained   to   the   appellant’s   failure   to   comply    with   her   counselors’
      recommendation to enroll in a residential treatment program and her failure to
      attend meetings scheduled to work out the details of her admission to residential
      treatment. 0240 ID at 8. Although these series of events occurred sequentially,
      they are distinguishable, independent, and separable. See Walker, 102 M.S.P.R.
      474, ¶ 7; cf., e.g., Chauvin v. Department of the Navy, 38 F.3d 563, 565 (Fed. Cir.
                                                                                        6

      1994) (finding that unauthorized possession of a metal plate and attempted
      removal of the plate from a shipyard were independent and separable acts). The
      appellant’s counselors could have reasonably terminated their efforts to assist her
      based on her repeated nonattendance during outpatient treatment. They need not
      have extended an offer to help her to enroll in an inpatient treatment program.
      Further, the meetings that she failed to attend during outpatient treatment—group
      therapy sessions and 12-step program meetings—differ functionally from the
      office appointments she missed when her counselors were seeking to enroll her in
      suitable inpatient treatment.   Outpatient and inpatient programs are also two
      distinct types of treatment for substance abuse.
¶12        The agency argues that the administrative judge should have sustained the
      first specification of the charge because the appellant was out of compliance long
      before her primary counselor notified the agency of her failure to comply. PFR
      File, Tab 1 at 10-11, 13-14. We agree. Under Executive Order 12,564, the legal
      authority upon which the agency relied:
               (d) Agencies shall initiate action to remove from the service any
               employee who is found to use illegal drugs and:
                   (1) Refuses to obtain counseling or rehabilitation through an
                   Employee Assistance Program; or
                   (2) Does not thereafter refrain from using illegal drugs.
      Drug-Free Federal Workplace, Exec. Order No. 12,564 § 5(d), 51 Fed. Reg.
      32,889, 32,891 (Sept. 15, 1986). The agency’s implementing procedures require
      that employees mandatorily referred to EAP owing to drug use or possession
      “remain compliant with requirements related to rehabilitation/treatment . . . in
      order to be considered successful.” 0240 IAF, Tab 6, Subtab 4jj at 8. Under the
      applicable procedures, the agency “will initiate action to remove the employee” if
      “appropriate medical officials within the EAP structure report, in writing, that the
      employee is non-compliant during rehabilitation/treatment.” Id.
¶13        The agency’s EAP services provider, Magellan Health Services, referred the
      appellant to Anita Canepa, a Licensed Marriage and Family Therapist, to develop
                                                                                               7

      and monitor her treatment plan and to evaluate her compliance with the plan.
      0240 IAF, Tab 30 at 12. Ms. Canepa developed a 36-week plan for outpatient
      treatment that required the appellant to attend three 1-hour therapy sessions per
      week at St. Joseph’s Behavioral Health Center and five 12-step or recovery
      support program meetings per week.            Id. at 1-2.    After the appellant missed
      several meetings, the appellant’s substance abuse counselor discharged her from
      the outpatient treatment program, recommending that she would be best served by
      entering an inpatient treatment facility. Id. at 3. The appellant failed to enroll in
      inpatient treatment, and Ms. Canepa informed her by a letter dated June 4, 2012,
      that she was closing her case file for lack of compliance with the agreed-upon
      attendance schedule. 0240 IAF, Tab 6, Subtab 4g. This is the letter upon which
      the agency relied in proposing to remove the appellant. See id., Subtab 4f at 1.
¶14         The administrative judge explained that the agency’s decision to remove the
      appellant was based solely on the June 4, 2012 letter. 0240 ID at 9. The agency
      lacked   access      to   the   appellant’s   treatment     program   records   until   the
      administrative judge ordered Ms. Canepa to produce them at the hearing.
      0240 ID at 9; see 0240 IAF, Tab 17 at 4-5, Tabs 29-30. The agency thus did not
      learn the full details of the appellant’s noncompliance until after removing her.
      0240 ID at 9-10, 12, 17. The administrative judge explained that the appellant’s
      compliance, or lack thereof, “is a status which must be assessed by the
      appropriate medical personnel under the agency’s DFWP program” because “a
      plain reading of the agency’s rules . . . states that the agency will initiate
      disciplinary action ‘if appropriate medical officials within the EAP structure
      report, in writing, that the employee is noncompliant.’” 0240 ID at 17 (quoting
      0240 IAF, Tab 6, Subtab 4jj at 8).            She found that the June 4, 2012 letter
      constituted a writing by an “appropriate medical official[ ] within the EAP
      structure”    that        the    appellant    had     been      noncompliant      “during
      rehabilitation/treatment” but that the date of the finding of noncompliance,
      June 4, 2012, did not support the agency’s assertion that she was noncompliant
                                                                                         8

      from January through March 2012.           0240 ID at 17; see 0240 IAF, Tab 6,
      Subtab 4g, Subtab 4jj at 8.       Because the appellant was removed from federal
      service effective May 5, 2012, she explained, “the agency was without authority
      to require the appellant to attend the EAP program as a condition of her
      employment after that date.” 7 0240 ID at 17. She thus concluded that the agency
      failed to meet its burden of proof that the appellant was noncompliant with the
      DFWP at any time prior to her removal. 0240 ID at 17.
¶15         The administrative judge’s analysis is flawed.       The June 4, 2012 letter
      specifically documents the appellant’s noncompliance during January, February,
      and March 2012. For example, regarding the month of February, the letter states,
      “Mr. [Don] Sims again reported you none-compliant [sic] stating you attended
      [Intensive Out-Patient] treatment sessions only twice in this month on 2/9/12 &
                  8
      2/10/12.”       0240 IAF, Tab 6, Subtab 4g. That the letter was issued subsequent to
      the appellant’s May 5, 2012 removal is immaterial. In the September 20, 2012
      initial decision that became the final decision of the Board, the administrative
      judge ordered the agency to cancel her removal and retroactively restore her
      effective May 5, 2012. 0556 ID at 12. In our assessment, the agency would not
      have lacked the authority to require the appellant to attend the EAP-sanctioned
      drug treatment program. Cf. Cooper v. Department of the Navy, 108 F.3d 324,
      326 (Fed. Cir. 1997) (finding that the agency’s cancellation of removal action and
      expungement of all references from the personnel file “eliminated all the
      consequences of that action” and thus rendered the appeal moot). Accordingly,
      we conclude that the agency met its burden of proof regarding the first
      specification of the charge.


      7
        “The Federal Government has a compelling proprietary interest in establishing
      reasonable conditions of employment. Prohibiting employee use of illegal drugs is one
      such condition.” 0240 IAF, Tab 6, Subtab 4jj at 1.
      8
       Mr. Sims was the appellant’s substance abuse counselor at St. Joseph’s Behavioral
      Health Center. See 0240 IAF, Tab 30 at 3.
                                                                                         9

¶16        The agency argues that the administrative judge improperly failed to sustain
      the second specification as well. See PFR File, Tab 1 at 11-13. We need not
      address those arguments. If a charge is supported by multiple specifications, then
      proof of one or more, but not all, of the supporting specifications is sufficient to
      sustain the charge. Burroughs, 918 F.2d at 172. We thus sustain the charge of
      failure to comply with the DFWP.
¶17        Likewise, we need not delve into the agency’s arguments regarding the
      administrative judge’s failure to sustain the second charge, disruption in the
      workplace, including the agency’s assertions that she abused her discretion by
      excluding or discounting some of the testimony. See PFR File, Tab 1 at 14-16.
      The sustained charge alone is sufficient to warrant the appellant’s removal. Cf.
      Luciano v. Department of the Treasury, 88 M.S.P.R. 335, ¶ 10 (2001) (declining
      to address agency’s arguments regarding unsustained specifications where the
      sustained specifications and other sustained charge supported removal), aff’d,
      30 F. App’x 973 (Fed. Cir. 2002); see Alvarado v. Department of the Air
      Force, 103 M.S.P.R. 1, ¶ 29 (2006) (determining that, although the administrative
      judge’s rulings prevented the agency from presenting some evidence, remand was
      unnecessary because the sustained charge supported the penalty determination),
      aff’d, 626 F. Supp. 2d 1140 (D.N.M. May 4, 2009), aff’d, 490 F. App’x 932
      (10th Cir. 2012).
¶18        The record shows that the appellant occupied a testing-designated position
      subject to random drug testing, and, further, the agency had reasonable cause to
      drug test her because she had been involved in the forklift accident. 0240 IAF,
      Tab 6, Subtabs 4k, 4kk. The agency thus established nexus.         See Burkwist v.
      Department of Transportation, 26 M.S.P.R. 427, 428-30 (1985) (sustaining a
      90-day suspension for violating rules of a private drug rehabilitation program
      during off-duty hours, citing safety requirements for the appellant’s position).
¶19        As for the penalty, the Board will review an agency-imposed penalty only
      to determine if the agency considered all the relevant factors and exercised
                                                                                        10

      management discretion within tolerable limits of reasonableness.         Douglas v.
      Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (listing twelve factors
      relevant to the reasonableness of an agency’s chosen penalty). When not all of
      the charges are sustained, the Board will consider carefully whether the sustained
      charges merited the penalty imposed by the agency. Id. at 308. When the Board
      sustains fewer than all of the agency’s charges, the Board may mitigate the
      agency’s penalty to the maximum reasonable penalty so long as the agency has
      not indicated in either its final decision or in proceedings before the Board that it
      desires that a lesser penalty be imposed on fewer charges.             Lachance v.
      Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).
¶20         Here, the agency has not indicated that it desires a lesser penalty to be
      imposed, and we find removal to be the maximum reasonable penalty for the
      sustained charge.    Drug offenses are considered to be serious offenses and
      agencies have a primary responsibility in ensuring a drug-free workplace. See
      generally Exec. Order No. 12,564. The Board has affirmed removals for a first
      drug-related offense, even when the employee has a long record of federal
      service. See, e.g., Lazenby v. Department of the Air Force, 66 M.S.P.R. 514,
      520-21 (1995) (17-year employee’s use of cocaine during self-referred
      rehabilitation program was sufficiently serious to warrant initiation of removal
      procedures). In contrast, the appellant has a relatively short history of federal
      service that includes a significant disciplinary record calling into question her
      reliability as an employee.   She knew that she was subject to drug testing by
      virtue of her position, and that she had specific obligations under the agency’s
      DFWP and her treatment program.        0240 IAF, Tab 6, Subtabs 4h-4i, 4kk-4ll,
      Tab 30 at 1-2, 7, 9, 20, 42. She also knew that she was not in compliance with
      the program. See 0240 IAF, Tab 30 at 7-8, 10. She failed to achieve compliance
      even after the EAP providers repeatedly warned her about noncompliance and
      offered her several opportunities to change her behavior.       Id. at 2, 7-10, 20,
      23-24, 26-30, 36, 38-41. The record shows that the appellant experienced
                                                                                       11

      significant personal difficulties during the treatment program. For example, her
      intake forms indicate she may have suffered from clinical depression, and she
      self-reported that she was experiencing financial difficulties and lived with an
      abusive domestic partner who also used drugs. Id. at 36, 38, 40-41, 52-53, 57-58.
      We find that, while these are mitigating factors, they would not bode well for her
      rehabilitation potential.
¶21         Accordingly, the agency’s petition for review is GRANTED, the initial
      decision is REVERSED, and the appellant’s removal is SUSTAINED.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            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
      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
                                                                           12

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.
