       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

              CHRISTIE Y. HERBERT,
                    Petitioner,

                           v.

     DEPARTMENT OF HEALTH AND HUMAN
                 SERVICES,
                 Respondent.
            ______________________

                      2014-3011
                ______________________

   Petition for review of the Merit Systems Protection
Board in Nos. AT0752120776-I-1.
                ______________________

                Decided: April 14, 2014
                ______________________

    CHRISTIE Y. HERBERT, of Winston-Salem, North Caro-
lina, pro se.

    ROBERT C. BIGLER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and FRANKLIN
E. WHITE, JR., Assistant Director.
                 ______________________
2                                          HERBERT   v. HHS




    Before LOURIE, SCHALL, and MOORE, Circuit Judges.
PER CURIAM
    Christine Y. Herbert petitions for review of the final
decision of the Merit Systems Protection Board (“Board”)
that sustained the action of the Department of Health and
Human Services (“HHS” or “agency”) removing her from
her position as a Health Insurance Specialist with the
agency’s Atlanta, Georgia, Division of Medicare Health
Plans Operations. Herbert v. Dep’t of Health and Human
Servs., No. AT-0752-12-0776-I-1 (M.S.P.B. Sept. 6, 2013)
(“Final Decision”). We affirm.
                       DISCUSSION
                            I.
    Ms. Herbert began working for HHS as a Health In-
surance Specialist in Atlanta in April of 2010. While
employed at the agency, she was allowed to work “episodic
or scheduled flexiplace,” so long as her performance was
at an acceptable level and she was not the subject of any
disciplinary actions. Ms. Herbert was approved for flex-
iplace approximately 35 times prior to November of 2011.
On November 8, 2011, however, she was issued a leave
warning letter, which was considered a disciplinary action
for purposes of denial of flexiplace requests. On January
17, 2012, Ms. Herbert relocated her residence from Atlan-
ta to Winston-Salem, North Carolina, and after that date
she did not report to work.
    Ms. Herbert was issued a leave-restriction letter on
March 1, 2012, and on April 9, 2012, she was issued a
proposed 14-day suspension for being absent without
leave (“AWOL”) for approximately 600 hours. The AWOL
charge was sustained, and Ms. Herbert was suspended
from work. The suspension ended on June 7, 2012.
HERBERT   v. HHS                                        3



    Ms. Herbert did not return to work at the conclusion
of her suspension. Instead, she began requesting leave
without pay (“LWOP”) on a daily basis on account of what
she described as “insufficient annual leave balance, which
has been adversely affected by unresolved work challeng-
es and ongoing concerns.” Dr. Teresa Kries, Ms. Herbert’s
supervisor, denied the LWOP requests, each time inform-
ing Ms. Herbert that she was needed at work and that her
failure to report for work would be charged to AWOL. Dr.
Kries also informed Ms. Herbert of the possibility of
requesting Family Medical Leave Act (“FMLA”) leave and
of the requirements for doing so. Ms. Herbert responded,
however, that FMLA leave was not appropriate for her
request.
    On June 14, 2012, Dr. Kries sent Ms. Herbert a letter
offering her a medical examination. The letter also in-
formed Ms. Herbert that HHS would pay the cost of the
examination, as well as any travel expenses related to the
examination. Ms. Herbert declined the offer, stating that
her leave request was “not related to any medical needs or
requirements.”
    On July 3, 2012, the agency issued Ms. Herbert a no-
tice of proposed removal, charging her with 150 hours of
AWOL from June 7 to July 2, 2012. Ms. Herbert waived
her right to submit an oral response to the proposed
removal. In a written response, though, she stated that
she “did not want to grieve” the proposed removal inter-
nally. On August 15, 2012, Gloria Parker, HHS’s Associ-
ate Regional Administrator, issued a letter sustaining the
AWOL charge and removing Ms. Herbert from her posi-
tion, effective August 20, 2012.
    Ms. Herbert appealed her removal to the Board. Fol-
lowing a hearing, the administrative judge (“AJ”) to whom
the appeal was assigned rendered an initial decision in
which he affirmed HHS’s action removing Ms. Herbert
from her position. Herbert v. Dep’t of Health and Human
4                                           HERBERT   v. HHS



Servs., No. AT-0752-12-0776-I-1 (M.S.P.B. Nov. 15, 2012)
(“Initial Decision”). The AJ found that the agency had
established the AWOL charge by a preponderance of the
evidence. Initial Decision at 7. The evidence showed
that, as noted above, when Ms. Herbert requested LWOP,
Dr. Kries each time responded with an email denying the
LWOP and informing her that she was being charged
with AWOL. Id. at 6. Although the record also showed
that AWOL was not accurately reflected in Ms. Herbert’s
master leave history or in her leave and earnings state-
ments, the AJ found that she knew those statements were
inaccurate and thus could not have reasonably relied on
them. The AJ also found that the agency had established
a nexus between Ms. Herbert’s conduct (being AWOL) and
the efficiency of the service. Id. at 7. Finally, he deter-
mined that, in imposing the penalty of removal, the
agency had properly considered the relevant Douglas
factors, see Douglas v. Veterans Admin., 5 M.S.P.R. 280
(1981), and that it had demonstrated that the penalty was
reasonable. Initial Decision at 8–9. Ms. Herbert peti-
tioned the Board for review of the Initial Decision, which
the Board affirmed in its Final Decision. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
                            II.
    Our scope of review in an appeal from a decision of
the Board is limited. We must affirm the Board’s decision
unless we find it to be (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); Kewley v. Dep’t
of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.
1998).
HERBERT   v. HHS                                           5



                            III.
    On appeal, Ms. Herbert does not dispute that she was
absent from work. Rather, she argues (1) that she was
subjected to unfair labor practices, representing multiple
violations of collective bargaining regulations; and (2)
that the penalty of removal was too severe. We address
these contentions in turn.
                             A.
    Regarding the first point, Ms. Herbert states in her
opening brief that HHS’s “internal records and other
additional evidence” support her claim that she “was
aggrieved by the agency.” However, in her opening brief
she fails to point to any specific record evidence to support
these allegations. Apparently recognizing the deficiency
in her opening brief, Ms. Herbert filed a reply brief and
moved to supplement the record before us with additional
exhibits. Although it is unclear which of the additional
exhibits were before the Board, we granted the motion to
supplement the record, recognizing that Ms. Herbert is a
pro se litigant.
    We have carefully considered both of Ms. Herbert’s
briefs and the exhibit material before us. Having done so,
we conclude that Ms. Herbert has failed to demonstrate
that HHS’s action removing her for AWOL was somehow
tainted by improper agency action. Specifically, Ms.
Herbert has failed to connect points 2–25 in her reply
brief to any agency impropriety in connection with her
removal. Point 1 (“The Master Leave Records of respond-
ent on behalf of petitioner, as well as Leave and Earnings
statements for the Petitioner, neither reflect, nor support,
AWOL status for the petitioner, as asserted by the agen-
cy, relative to the adverse employment action taken.”) is
the only point actually touching on her removal. We have
considered the evidence Ms. Herbert relies on for this
point, but agree with the Board and the AJ that any
ambiguity from these records was resolved by Dr. Kries’s
6                                          HERBERT   v. HHS



responses to Ms. Herbert’s leave requests, making it clear
that Ms. Herbert was deemed to be AWOL. Accordingly,
we see no error in the Board’s conclusion as to the AWOL
charge, and see nothing supporting Ms. Herbert’s allega-
tion of unfair labor practices.
                           B.
    In claiming that the penalty of removal was too se-
vere, Ms. Herbert makes two main arguments: (1) that
the agency took no action to resolve the “concerns” that
she alleged led her to be absent from work; and (2) that
there were extenuating circumstances that excused her
absences. As far as (1) is concerned, Ms. Herbert appears
to be referring to the “unresolved work challenges and
ongoing concerns” that she raised when she did not return
to work at the end of her 14-day suspension. She also
appears to be referring to certain matters that arose in
connection with employee-assistance counseling she
received. As best as we can understand it, (2) is based on
the following statement in Ms. Herbert’s opening brief:
“There were also extenuating personal complaint issues of
petitioner unrelated to petitioner’s employment with the
agency, which were related factors in the circumstances
leading to the adverse action taken by the agency, due to
petitioner exercising her personal right to hold a private
individual accountable for dishonest, disingenuous, mali-
cious, unethical, unprofessional behavior.”
    We reject Ms. Herbert’s argument that the penalty of
removal was unreasonable. First, as noted above, when
Ms. Herbert refused to return to work after the comple-
tion of her suspension, Dr. Kries made efforts to accom-
modate what she believed to be Ms. Herbert’s concerns.
Dr. Kries informed Ms. Herbert of the option of requesting
FMLA leave, and she offered a medical examination at
agency expense, with any travel expenses related to the
examination to be borne by the agency. Ms. Herbert
rejected these offers, however. Second, in imposing the
HERBERT   v. HHS                                          7



penalty of removal, Ms. Parker considered what she
believed to be the pertinent factors on which to base the
agency’s decision: (1) the nature and seriousness of the
offense; (2) the adverse impact of Ms. Herbert’s conduct
on the efficiency of the agency; (3) Ms. Herbert’s two years
of past service; (4) Ms. Herbert’s past disciplinary record,
including her 14-day suspension for being AWOL; (5) the
nature of Ms. Herbert’s position of Health Insurance
Specialist; and (6) Ms. Herbert’s potential for rehabilita-
tion. These factors support the conclusion that the penal-
ty of removal was reasonable.
    To the extent that Ms. Herbert urges that her removal
was unreasonable on account of “ongoing concerns” and
extenuating circumstances, her claim, which we have
described above, amounts to nothing more than a vague,
unsupported assertion. As such, it does not provide any
reason to call into question the decision of the Board as to
the reasonableness of the penalty. Finally, as far as the
factors considered by Ms. Parker in the removal action
are concerned, Ms. Herbert argues that her two years of
tenure was an inappropriate factor to consider. This
contention is without merit. Douglas expressly lists “the
employee’s past work record, including length of service”
as an appropriate factor to consider. See Douglas, 5
M.S.P.R. at 305.
                            IV.
   For the foregoing reasons, the final decision of the
Board is affirmed.
                       AFFIRMED
   No costs.
