                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2006-3356


                                SANDRA J. ROBERTS,

                                                             Petitioner,

                                           v.


                           DEPARTMENT OF COMMERCE,

                                                             Respondent.




      Sandra J. Roberts, of Honolulu, Hawaii, pro se.

       Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Jeanne E. Davidson, Deputy Director. Of counsel was Bryant G. Snee, Assistant
Director. Of counsel on the brief was William J. Monahan, Attorney, Office of General
Counsel, Bureau of Census, United States Department of Commerce, of Washington,
DC.

Appealed from: United States Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                         2006-3356




                                  SANDRA J. ROBERTS,

                                                                 Petitioner,

                                              v.

                             DEPARTMENT OF COMMERCE,

                                                                 Respondent.



                             __________________________

                             DECIDED: March 5, 2007
                             __________________________



Before NEWMAN, RADER, and DYK, Circuit Judges.

PER CURIAM.



         Ms. Sandra Roberts seeks review of the decision of the Merit Systems Protections

Board affirming her removal from employment by the Bureau of the Census.1 Ms. Roberts

states that the Board overlooked certain factual and evidentiary issues and applied the

incorrect statute, and that the totality of facts and the application of the correct statute do


         1     Roberts v. Dep't of Commerce, No. SF0752050605-I-1 (M.S.P.B., June 21,
2006).
not support the removal action. On review of the issues and arguments, we affirm the

Board's decision.

                                      DISCUSSION

       Ms. Roberts was employed in the excepted service as a Field Representative in the

Los Angeles Regional Office of the Census Bureau of the Department of Commerce, with

an intermittent schedule. She was assigned to work on the American Community Survey

(ACS) and Demographic Area Address Listing (DAAL) in Honolulu, Hawaii.               Field

Representatives who are conducting the ACS are provided with a confidential list of

addresses and interview survey questions, and are required to go to the listed addresses

and interview the respondents using the survey questions. A Field Representative is

expected to conduct each monthly ACS survey in the month of issuance, and is required to

transmit certain percentages of completed work results to the Census Bureau headquarters

on the 7th, 14th, and 21st of the month.

       Four employment issues were the basis of the four counts of the agency's removal

action. Count one was based on Ms. Roberts' failure to provide her current street address

to her supervisors so that the agency could send equipment and confidential work

assignments to a valid street address. The agency charged Ms. Roberts with "failure to

follow supervisory directives" for her failure to provide her current address. This charge

was sustained by the Board, as a reasonable and necessary requirement. On this appeal

Ms. Roberts argues that she could not follow the directive concerning her address because

her second level supervisor Ms. Julie Lam Ly failed to give her such a directive. The Board

found that even if Ms. Lam Ly did not explicitly order Ms. Roberts to provide her street

address, this directive was communicated by her first level supervisor Ms. Mai Nguyen at


2006-3356                                   2
Ms. Lam Ly's direction. Ms. Roberts does not dispute that this directive was communicated

by her first level supervisor, and that she failed to follow it. The Board's finding as to count

one must be sustained.

       On count two, the agency charged Ms. Roberts with "failure to follow interview

procedures" because for a certain facility, Ms. Roberts completed the assignment without

having interviewed the respondents at that facility. The Board found in favor of Ms. Roberts

on this count, reasoning that although Ms. Roberts did not interview these respondents, the

agency did not carry its burden of showing that interview procedures were violated.

       The third charge was that Ms. Roberts did not meet the agency's required weekly

ACS transmittal rates over a three-month period. Ms. Roberts does not dispute that she

did not meet these requirements. She instead argues that the Board erred by applying 5

U.S.C. '7501 et seq. (Chapter 75) rather than 5 U.S.C. '4301 et seq. (Chapter 43) to this

count, and that the Board should have analyzed count three based on the "poor

performance of a particular duty" standard of Chapter 43. She argues that Chapter 75,

which states that an adverse personnel action can be taken "only for such cause as will

promote the efficiency of the service," requires persistent employee failure to meet

expectations. However, as explained in Guillebeau v. Dep't of the Navy, 362 F.3d 1329

(Fed. Cir. 2004), Chapter 75 does not prohibit reliance on performance standards to show

that the employee has not met the agency's requirements. The Board did not err by

analyzing the undisputed facts under Chapter 75; substantial evidence supported the

finding of failure of compliance.

       The fourth charge was based on an event at the Honolulu Municipal Building, where

Ms. Roberts refused to adhere to building security requirements, leading to the agency's


2006-3356                                      3
charge of "conduct unbecoming a federal employee." The Board found that Ms. Roberts

acted unprofessionally when she refused to follow the procedure required by the security

personnel, and that Ms. Roberts' confrontation with the security guard was improper and

unsuitable for a federal employee. Ms. Roberts does not dispute that she refused to follow

the procedure, requested by security personnel, that she surrender a recognized

government identification in order to obtain a pass to enter the Municipal Building. Her

behavior was described as "ranting" and "raving" by the security guard. Ms. Roberts states

that the incident was "devoid of conflict" and does not constitute "conduct unbecoming."

The Board ruled that "[e]ven assuming, without deciding, that the building's policy was not

reasonable, that the appellant had the right to object to it to the guards, and that she was

given no alternative to surrendering her identification, her behavior as described by Ogawa

was not justified or reasonable under the circumstances." Ms. Roberts argues that the

Board erred by refusing to consider evidence to show that the incident was civil and devoid

of conflict, including a letter from Mr. Ogawa's supervisor and the findings of an

unemployment hearing officer. The Board held that Ms. Roberts had not provided a

reasonable explanation as to why these documents were not presented or could not have

been presented at the hearing before the administrative judge. We conclude that the Board

did not abuse its discretion in declining to reopen the appeal in order to receive this

proffered evidence.

       The Board found that Ms. Roberts' job as a Field Representative involved public

contact, and that her conduct at the Municipal Building indicated that she could not be

relied upon to act in a professional manner and to protect the agency's image. We




2006-3356                                    4
conclude that the Board's findings were supported by substantial evidence, and must be

sustained.

      Ms. Roberts also raises various procedural and due process issues. We have

reviewed her arguments, and discern no reversible error in the Board's procedures and in

the analysis by the administrative judge.

      The Board found that the criteria for removal under Chapter 75 were met, in that the

agency had shown that the charged conduct in counts one, three and four occurred, that

there is a nexus between the charged conduct and the efficiency of the service, and that

the penalty was appropriate to the circumstances. Ms. Roberts has not shown that the

Board's decision was arbitrary, capricious, an abuse of discretion, unsupported by

substantial evidence, or otherwise not in accordance with law. The decision must be

affirmed.

      No costs.




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