       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                   SHEILA MOTT,
                     Petitioner

                           v.

     DEPARTMENT OF VETERANS AFFAIRS,
                  Respondent
            ______________________

                      2017-1222
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. AT-0752-14-0451-I-1.
                ______________________

              Decided: January 26, 2018
               ______________________

   MICHAEL WILSON MACOMBER, Tully Rinckey PLLC,
Albany, NY, for petitioner. Also represented by NNENNE
AGBAI, Washington, DC.

   ELIZABETH ANNE SPECK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD, NATHANAEL YALE.
                ______________________
2                         MOTT   v. DEP’T OF VETERANS AFFAIRS



    Before MOORE, WALLACH, and STOLL, Circuit Judges.
WALLACH, Circuit Judge.
     Petitioner Sheila Mott appeals a final order of the
Merit Systems Protection Board (“MSPB”) sustaining the
initial decision of an administrative judge (“AJ”) mitigat-
ing the removal of Ms. Mott from her position with Re-
spondent Department of Veterans Affairs (“VA”) to a two-
grade demotion. See Mott v. Dep’t of Veterans Affairs
(Mott II), No. AT-0752-14-0451-I-1, 2016 WL 5070096, at
¶ 1 (M.S.P.B. Sept. 16, 2016) (MSPB Final Order); Mott v.
Dep’t of Veterans Affairs (Mott I), No. AT-0752-14-0451-I-1
(M.S.P.B. Apr. 15, 2016) (AJ Initial Decision) (J.A. 11–31).
    Because Ms. Mott has repeatedly stated she has
waived any claims of discrimination relating to her re-
moval, we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) (2012). We affirm-in-part, reverse-in-part,
and remand.
                       BACKGROUND
    The parties do not dispute the relevant factual back-
ground. Ms. Mott served for fifteen years at the James A.
Haley Veterans’ Hospital in Tampa, FL. See J.A. 37.
Before she was demoted, Ms. Mott served as a Superviso-
ry Medical Administration Specialist, J.A. 32, a role in
which her principal responsibilities were to: ensure that
all available clinical appointment slots were filled to the
maximum extent possible, which could be done “frequent-
ly, if not daily,” J.A. 14; distribute scheduled appoint-
ments among the assistants; and monitor and fill open
appointment slots, last minute cancelations, or no shows,
J.A. 13−14, 42. In November 2013, the VA proposed and
ultimately decided to remove Ms. Mott from this position
based on the following three charges, some with multiple
MOTT   v. DEP’T OF VETERANS AFFAIRS                       3



specifications: 1 (1) failure to properly perform duties
(eleven specifications) (“Charge A”); (2) failure to perform
supervisory duties (five specifications) (“Charge B”); and
(3) failure to perform duties in a timely manner (one
specification) (“Charge C”). J.A. 12, 32, 37, 40. Ms. Mott
subsequently appealed to the MSPB. J.A. 11.
    In Mott I, the AJ found that the VA failed to establish
ten of the eleven specifications of Charge A and any of the
specifications of Charge B. See J.A. 15−19. The AJ found
that the VA proved one specification of Charge A and the
only specification originally filed under Charge C.
J.A. 16, 20–21. The sustained specifications charged Ms.
Mott with: (1) canceling two clinics in September 2013
without her supervisor’s consent due to unfilled slots
(“Charge A Specification 8”), J.A. 33; and (2) failing to
ensure a patient’s Claim File (“C-File”) was timely
shipped from the hospital to a VA Regional Office, i.e.,
Charge C, J.A. 35. The AJ, inter alia, mitigated Ms.
Mott’s removal to a demotion to Medical Support Assis-
tant, a position which she held prior to her promotion to
supervisor, because it “was undisputed that [Ms. Mott]
has performed satisfactorily in lower-graded positions.”
J.A. 24. Ms. Mott appealed to the full MSPB. Mott II,
2016 WL 5070096, at ¶ 1.
     In Mott II, the MSPB affirmed the AJ’s decision. See
id. at ¶ 1, ¶ 12. In support of its conclusion upholding
Charge A Specification 8, the MSPB found that
“[a]lthough the [AJ] did not mention” that Ms. Mott was
out on sick leave when the clinics were canceled, “the
record reflects that [Ms. Mott] called in from home [while]


   1    “Each independent specification constitutes a sep-
arate act or event that supports a charge.” Tartaglia v.
Dep’t of Veterans Affairs, 858 F.3d 1405, 1407 n.2 (Fed.
Cir. 2017) (internal quotation marks and citation omit-
ted).
4                         MOTT   v. DEP’T OF VETERANS AFFAIRS



on sick leave to cancel the clinics at issue.” Id. at ¶ 9; see
id. (“Moreover, in her contemporaneous response to her
supervisor’s admonition for canceling the clinics, [Ms.
Mott] acknowledged that she canceled the clinics and did
not fill the slots, as the [VA] alleged, and she questioned
the usefulness of the clinics.”). In support of its conclu-
sion upholding Charge C, the MSPB found that Ms.
Mott’s argument that she shipped the C-File after two
days such that it arrived on August 9, 2013, and not
September 24, 2013, as the VA alleged, lacked evidentiary
support. Id. at ¶ 7. In relevant part, the MSPB found
that, although Ms. Mott “did not anticipate” the United
Postal Service (“UPS”) tracking number she submitted as
evidence would be defunct when the AJ attempted to
review the information three years later, id. at ¶ 8, she
still “failed to exercise due diligence” because she could
not explain why she was unable to produce necessary
tracking information before filing her appeal and “there-
fore is responsible for the absence of evidence to support
her claims,” id. (citation omitted).
                        DISCUSSION
    There are two main issues on appeal. First, Ms. Mott
argues that substantial evidence does not support the
MSPB’s findings sustaining Charge A and Charge C.
Pet’r’s Br. 3; see id. at 18–26. Second, Ms. Mott argues
the MSPB erred by finding the maximum reasonable
penalty to be a demotion. Id. at 3; see id. at 26–29. After
setting forth the applicable framework, we address each
argument in turn.
                   I. Standard of Review
    We affirm an MSPB decision unless, inter alia, it con-
stitutes “an abuse of discretion.” 5 U.S.C. § 7703(c)(1)
(2012); see Ryan v. Dep’t of Homeland Sec., 793 F.3d 1368,
1371 (Fed. Cir. 2015). “The MSPB abuses its discretion
when the decision is based on an erroneous interpretation
of the law, on factual findings that are not supported by
MOTT   v. DEP’T OF VETERANS AFFAIRS                         5



substantial evidence, or represents an unreasonable
judgment in weighing relevant factors.” Tartaglia, 858
F.3d at 1407–08 (internal quotation marks and citation
omitted). Substantial evidence is “more than a mere
scintilla of evidence, but less than the weight of the
evidence.” Jones v. Dep’t of Health & Human Servs., 834
F.3d 1361, 1366 (Fed. Cir. 2016) (internal quotation
marks and citations omitted).
                    II. Charges A and C
                     A. Legal Standard
    The VA bears the burden of proving its charges in an
action based on unacceptable performance by substantial
evidence. See 5 C.F.R. § 1201.56(b)(1)(i) (2015). “[P]roof
of one or more, but not all, of the supporting specifications
is sufficient to sustain the charge.” Burroughs v. Dep’t of
Army, 918 F.2d 170, 172 (Fed. Cir. 1990). “The petitioner
bears the burden of establishing error in the [MSPB]’s
decision.” Harris v. Dep’t of Veterans Affairs, 142 F.3d
1463, 1467 (Fed. Cir. 1998).
B. The MSPB Did Not Abuse Its Discretion in Sustaining
                     Charge A
     Charge A Specification 8 charged Ms. Mott with fail-
ing to properly perform her duties when she canceled two
clinics scheduled for September 27 and 29, 2013, based on
unfilled slots without taking appropriate steps to fill the
slots and without her supervisor’s consent. J.A. 33. Ms.
Mott contends that the MSPB erred in sustaining the
specification because: (1) she was not directly responsible
for filling the clinic slots; and (2) even if she were respon-
sible for filling the slots, it was improper to hold her
accountable because she was on sick leave on the relevant
date. Pet’r’s Br. 19–22. We disagree.
     The MSPB appropriately determined that Ms. Mott
failed to properly perform her duties when she canceled
two clinics “in light of the indisputable importance of
6                         MOTT   v. DEP’T OF VETERANS AFFAIRS



getting veterans to open clinic slots to the fulfillment of
the [VA’s] mission.” Mott II, 2016 WL 5070096, at ¶ 9. In
particular, Ms. Mott’s supervisor testified that Ms. Mott’s
“primary responsibilities” were to “maximize clinic utili-
zation and maintain clinic utilization at 85% or better.”
J.A. 157. Yet, Ms. Mott failed to perform those duties by
going to the “extreme” of “cancel[ing] a clinic twice that
was available against [her supervisor’s] specific instruc-
tions and then fail[ing] to make any effort to have the
clinic filled.” J.A. 158. We agree that Charge A Specifica-
tion 8 is directly related to the responsibilities in Ms.
Mott’s position description. See J.A. 107 (stating a super-
visor is required to “[m]onitor[] timeliness of scheduling
veterans’ compensation and pension appointments” and
“[s]upervise[] the activities of over 50 fee basis physicians
to ensure adequate coverage for subspecialty examina-
tions for the Compensation and Pension Program”), 115
(stating the position requires “[o]versight of multiple
clinics throughout the week and weekends[,] . . . main-
taining adequate staffing levels to meet fluctuating de-
mands[,] . . . [and] monitor[ing] the scheduling of
approximately 55 fee basis physicians”). Although Ms.
Mott claims that she was not “directly responsible for
manually filling [available patient] slots,” Pet’r’s Br. 20
(internal quotation marks omitted), given her oversight
and scheduling responsibilities, as supervisor, it was her
responsibility to ensure that clinics were appropriately
scheduled and filled, see J.A. 107, 115.
    We find unpersuasive Ms. Mott’s contention that she
should have been excused from filling the available slots
because “[she] was on leave” during the dates the clinics
were initially canceled. Pet’r’s Br. 20. The MSPB noted
that the AJ had not specifically acknowledged this fact in
his Initial Decision, but concluded that it did not require
reversal. Mott II, 2016 WL 5070096, at ¶ 9. We agree
that this does not change the analysis. The record
demonstrates that, after Ms. Mott returned to work, she
MOTT   v. DEP’T OF VETERANS AFFAIRS                       7



again canceled one of the two clinics without consent, did
not otherwise make arrangements to fill the slots, and
voiced disagreement with her supervisor’s decision to
reopen the clinics. See J.A. 186–87 (providing email from
Ms. Mott’s supervisor to Ms. Mott after she returned from
sick leave stating “[t]he [September 29] clinic was reo-
pened, and you canceled the clinic again this [m]orning [of
September 27], and again without consulting me”).
Further, Ms. Mott has not provided evidence to rebut her
supervisor’s statements that it was improper to cancel the
clinics so far in advance and without his permission. See
J.A. 186−87.
     Finally, Ms. Mott argues that she could not have filled
the clinic slots as quickly as her supervisor claims she
should have. See Pet’r’s Br. 20–21 (contesting the super-
visor’s statement that he was able to fill the slots in
twenty minutes). However, Ms. Mott has presented no
evidence indicating that she attempted to fill the slots.
See generally Pet’r’s Br. Consequently, her speculation
regarding whether she would have had the same success
is irrelevant. See Harvin v. Merit Sys. Prot. Bd., 666 F.
App’x. 914, 917 (Fed. Cir. 2016) (“Unsubstantiated allega-
tions do not equal evidence.”). Therefore, we affirm the
MSPB’s finding because substantial evidence supports its
decision regarding Charge A Specification 8.
    C. The MSPB Abused Its Discretion in Sustaining
                     Charge C
    Ms. Mott alleges that the MSPB abused its discretion
in sustaining Charge C because, inter alia, the AJ:
(1) made improper assumptions based on a delay in email
communication; and (2) considered extra-record evidence
in the form of the UPS website’s number tracking service
to confirm whether the C-File had been delivered. Pet’r’s
Br. 22–26. We agree with Ms. Mott.
  To sustain a charge for administrative penalty, the
MSPB must support its conclusions with substantial
8                         MOTT   v. DEP’T OF VETERANS AFFAIRS



evidence. See Jones, 834 F.3d at 1366. While the AJ
noted that Ms. Mott’s supervisors repeatedly requested
email confirmation of the C-File’s shipment, the AJ
wrongly concluded that Ms. Mott “failure[d] to answer”
said inquiries to support a finding that Ms. Mott “more
likely than not” did not timely mail the patient’s C-File.
J.A. 20−21 (stating only that, “[w]hile the evidence on
which the [VA] relies is sparse, given the fact that both
[supervisors] sen[t] numerous emails asking for infor-
mation on the status of the C-File, [Ms. Mott’s] failure to
answer them” in part supported the VA’s assertion that
“this vital C-File” was not timely shipped). The AJ failed
to acknowledge evidence that on August 13, 2013, four
days after receiving the email from her supervisor, Ms.
Mott did respond to her supervisor’s questions, stating
that the C-File “ha[d] already been returned” and “was
received by S. Clement” of the Regional Office. J.A. 121;
see J.A. 121–24. Contrary to the VA’s assertion, see
Resp’t’s Br. 29, the record actually shows that Ms. Mott’s
August 13, 2013 email constitutes unrebutted evidence
that she responded to her supervisors’ questions, and is
thus sufficient to demonstrate that she returned the C-
File in a timely manner, see J.A. 121.
     The AJ also improperly relied on extra-record evi-
dence when he manually “entered the [UPS] tracking
number contained in [Ms. Mott’s] response” into UPS’s
website to assess whether the C-File was mailed on time
and made inferences against Ms. Mott because the report
tied to the tracking number “could not be found” by him.
J.A. 20; see J.A. 21 (concluding, in part, that because “the
tracking number provided was not active[,] . . . the [VA]
has shown it to be more likely than not that [Ms. Mott]
failed to timely ensure [the C-File] was timely shipped”).
Without more, including at least an adequate evidentiary
foundation, the absence of a tracking number on a website
does not substantiate the VA’s charge against Ms. Mott,
as such evidence was outside the record and is not proper
MOTT   v. DEP’T OF VETERANS AFFAIRS                       9



for an AJ’s consideration. See Cruz v. Dep’t of the Navy,
934 F.2d 1240, 1245 n.6 (Fed. Cir. 1991) (refusing to
consider evidence that was not before the MSPB); cf. Kyhn
v. Shinseki, 716 F.3d 572, 574−76 (Fed. Cir. 2013) (finding
error where a court reviewing a veteran’s claim sua
sponte sought new evidence to supplement the record).
The VA maintains the burden to prove the charge as
alleged. See 5 C.F.R. § 1201.56(b)(1)(i). The VA points to
no additional evidence beyond that which we have shown
to be insufficient here to support its charge. See generally
Resp’t’s Br. Because the VA has not proven the charge
here with substantial evidence, the MSPB abused its
discretion in sustaining Charge C. Accordingly, we re-
verse the decision of the MSPB on Charge C.
           III. The Maximum Reasonable Penalty
     “In a situation where not all charges brought against
an employee are upheld, any previous penalty may be
called into question.” Hathaway v. Dep’t of Justice, 384
F.3d 1342, 1353 (Fed. Cir. 2004). Where, as here, the
agency “gave no indication that it would have imposed a
lesser penalty” if fewer than all charges were sustained,
id., it is our responsibility to consider “the number and
seriousness of the charges sustained as compared
to . . . those that have not been sustained,” Guise v. Dep’t
of Justice, 330 F.3d 1376, 1381 (Fed. Cir. 2003). Because
half of the charges have now been invalidated, see supra
Section II.C, we find a remand necessary to reconsider
whether a penalty less than a two-grade demotion should
apply, see Hathaway, 384 F.3d at 1353 (collecting cases
remanding to the MSPB); see also Lachance v. Devall, 178
F.3d 1246, 1258 (Fed. Cir. 1999) (stating remand to the
MSPB, rather than the agency, is the correct course of
action where the agency does not indicate it desires a
lesser penalty to be imposed on fewer charges). Although
the MSPB cannot “independently institute a new penal-
ty,” it may, under its authority, “mitigate to the maximum
reasonable penalty.” Lachance, 178 F.3d at 1259, 1260.
10                         MOTT   v. DEP’T OF VETERANS AFFAIRS



                          CONCLUSION
    We have considered the parties’ remaining arguments
and find them unpersuasive. Accordingly, the Final
Order of the Merit Systems Protection Board is affirmed-
in-part and reversed-in-part. The case is remanded to the
MSPB for consideration of the appropriate penalty to be
imposed.
 AFFIRMED-IN-PART, REVERSED-IN-PART, AND
               REMANDED
                            COSTS
     Costs to Ms. Mott.
