                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FANNIE M. EVANS,                                DOCKET NUMBER
                   Appellant,                        DC-0752-13-6505-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: September 9, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Matthew E. Hughes, Esquire, Washington, D.C., for the appellant.

           Jeremiah Crowley, Joint Base Andrews, Maryland, 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
     affirmed her removal. 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 or regulation or the
     erroneous application of the law to the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 appellant filed an appeal of the agency’s action removing her from the
     position of Medical Support Assistant, GS-05. Initial Appeal File (IAF), Tab 1.
     The agency proposed the appellant’s removal based on the following charges:
     (1) conduct unbecoming a Federal employee (two specifications); and (2) failure
     to follow leave procedures resulting in absence without leave (AWOL) (two
     specifications). IAF, Tab 5 at 56. After receiving the appellant’s replies to the
     proposed action, the agency issued a decision that sustained both specifications of
     the conduct unbecoming charge and the first specification of the AWOL charge.
     Thus, the agency found that the charges were supported and that the penalty of
     removal was warranted.     Id. at 24-56.   The appellant was removed effective
     September 11, 2013.    Id. at 24.   She filed an appeal challenging the charged
     misconduct, but she did not raise any affirmative defenses. IAF, Tab 1.
¶3        After holding a hearing, the administrative judge sustained the first
     specification of the conduct unbecoming charge, finding that the agency
     established that the appellant misinformed a patient regarding the need for lab
     work, which resulted in inconvenience to the patient and poor customer service.
     IAF, Tab 28, Initial Decision (ID) at 3-11.       The administrative judge also
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     sustained the second specification, finding that the agency established by
     preponderant evidence that the appellant failed to ensure that a patient was timely
     seen by the physician and, as a result, the patient’s appointment was
     unnecessarily delayed, which resulted in poor customer service.                 Thus, the
     administrative judge sustained the conduct unbecoming charge.
¶4           Further, the administrative judge sustained the AWOL charge, finding that
     the agency proved that the appellant was absent without authorization from
     May 7-10, 2013. Specifically, the administrative judge found that the appellant
     was provided notification of the medical documentation required to support her
     leave    request,   that   the   appellant   did   not   provide   sufficient     medical
     documentation, and that, because the appellant failed to follow those leave
     procedures, the agency properly charged her with AWOL.                ID at 15.      The
     administrative judge concluded that the agency-imposed penalty of removal
     promoted the efficiency of the service and was reasonable under the
     circumstances of this case. ID at 18‑19.

                                           ANALYSIS
¶5           On review, the appellant challenges the administrative judge’s findings and
     determinations on each of the charges. Petition for Review (PFR) File, Tab 1. As
     to the conduct unbecoming charge, the appellant contends that the agency failed
     to prove that she provided misinformation to a patient about scheduled lab work,
     which resulted in an inconvenience to the patient and poor customer service; that
     she failed to ensure that a patient was timely seen by a doctor; and that she
     further failed to notify a medical technician that the patient was waiting to be
     seen by a doctor, resulting in the patient waiting an additional 30-40 minutes.
     PFR File, Tab 1 at 5-12. The appellant asserts that the agency must prove each
     specification of the conduct unbecoming charge by preponderant evidence and
     that the agency failed to do so.
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¶6        However, a charge of conduct unbecoming has no specific elements of
     proof; the agency establishes the charge by proving the appellant committed the
     acts alleged under this broad label.               Canada v. Department of Homeland
     Security, 113 M.S.P.R. 509, ¶ 9 (2010). Such a charge typically involves conduct
     that is improper, unsuitable, or otherwise detracts from one’s character or
     reputation.     Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 42
     (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011).                  Rude, discourteous, and
     unprofessional behavior in the workplace is outside the accepted standards of
     conduct reasonably expected by agencies and can be the subject of discipline.
     See Holland v. Department of Defense, 83 M.S.P.R. 317, ¶¶ 10‑12 (1999)
     (sustaining a removal for rude and discourteous behavior); Wilson v. Department
     of Justice, 68 M.S.P.R. 303, 309-10 (1995) (sustaining a removal for disrespectful
     conduct and the use of insulting, abusive language); Peters v. Federal Deposit
     Insurance Corporation, 23 M.S.P.R. 526, 529 (1984) (sustaining a removal for
     discourteous and unprofessional conduct), aff’d, 770 F.2d 182 (Fed. Cir. 1985)
     (Table). Further, and contrary to the appellant’s assertion, an agency is required
     to prove only the essence of its charge and need not prove each factual
     specification    supporting     the      charge.       Hicks v.    Department     of   the
     Treasury,     62 M.S.P.R.     71,   74    (1994),    aff’d,   48 F.3d   1235   (Fed.   Cir.
     1995) (Table).
¶7        The appellant did not deny the alleged misconduct in her reply to the
     agency’s proposal notice. IAF, Tab 5 at 52. Rather, she argued that the agency
     failed to tell her either in writing or verbally that her behavior was an issue.
     Further, the appellant never addressed this incident during the hearing and she
     offered nothing to refute the testimony offered by agency witnesses, either below
     or on review. Thus, to the extent the appellant now argues that the administrative
     judge improperly credited the veracity of the patient’s accusation over her
     testimony, and that the administrative judge accorded no weight to the possibility
     that the patient miscomprehended the information that was allegedly provided to
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     her by the appellant, the appellant’s arguments are mere disagreement with the
     administrative judge’s credibility determinations and provide no basis for review.
     See Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
     (1987) (observing that mere reargument of factual issues already raised and
     properly resolved by the administrative judge below do not establish a basis
     for review).
¶8        The appellant also argues on review that the agency failed to prove
     specification 2 of the conduct unbecoming charge. We disagree. The agency
     utilized two different electronic record-keeping systems to check in patients.
     AHLTA was the more reliable system and the CHCHS-1 system was more
     user-friendly. The appellant testified below that she used the CHCHS-1 system
     because the AHLTA system was down, but she failed to provide any witnesses to
     support her claim. IAF, Tab 26, Hearing Compact Disc (HCD). In contrast, two
     agency witnesses testified that they had used the AHLTA system throughout the
     date in question and that the system was fully functional and that no other
     employees had checked patients in on the CHCHS‑1 system that day. Id. On
     review, the appellant does not reassert her claim that she used the CHCHA‑1
     system because the AHLTA system was down, but instead argues for the first
     time that she should not be disciplined because the agency did not have a blanket
     policy requiring the AHLTA system to be used.          PFR File, Tab 4 at 9-12.
     However, the Board will not consider an argument raised for the first time in a
     petition for review absent a showing that it is based on new and material evidence
     not previously available despite the party’s due diligence. Banks v. Department
     of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has failed to make
     such a showing here.
¶9        The appellant also argues that the administrative judge failed to accord any
     weight to the facts showing that she made multiple attempts to timely notify the
     physician that her patient had arrived, including both calling and walking back to
                                                                                       6

      notify the technician. PFR File, Tab 4 at 9. The administrative judge considered
      the appellant’s testimony regarding the incident. ID at 9-10. However, she found
      that it was inconsistent with the appellant’s written reply to the proposed removal
      and with the testimony of agency witnesses. Id. We discern no reason to reweigh
      the evidence or substitute our assessment of the record evidence for that of the
      administrative judge.   Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06
      (1997) (finding no reason to disturb the administrative judge’s findings when she
      considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions); Broughton, 33 M.S.P.R. at 359 (same); see Haebe v.
      Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (finding that the
      Board may overturn credibility determinations that are implicitly or explicitly
      based on demeanor only when it has “sufficiently sound” reasons for doing so).
      Here, even though the administrative judge did not explicitly cite to Hillen v.
      Department of the Army, 35 M.S.P.R. 453, 458 (1987), in making her credibility
      determinations, the administrative judge did perform a proper Hillen-type
      analysis regarding the witnesses, and we find no reason to disturb her
      determination that the agency proved by preponderant evidence the charge of
      conduct unbecoming a Federal employee. ID at 3-15.
¶10        Concerning the charge of failure to follow leave procedures resulting in
      AWOL, the appellant argues that the agency improperly conflated two charges
      into one when it charged her with “[f]ailure to follow leave procedures resulting
      in AWOL.” PFR File, Tab 4 at 12; IAF, Tab 5 at 56. However, while AWOL and
      failure to follow leave procedures are typically considered as distinct charges
      with different elements, in this case they are based on the same conduct and we
      find no error by the agency in charging her with a single charge.              See
      Valenzuela v. Department of the Army, 107 M.S.P.R. 549, 553 n.* (2007);
      Jones v. Department of Justice, 98 M.S.P.R. 86, ¶ 16 (2004) (merging the charge
      of AWOL into the charge of failure to follow instructions, when both charges
      were based on the same underlying facts, i.e., the appellant’s failure to follow
                                                                                         7

      instructions by refusing to provide the necessary medical documentation to
      substantiate his alleged inability to work).
¶11         As to the merits of the AWOL charge, the appellant claims that she
      submitted medical documentation, which her supervisor, the proposing official,
      found to be insufficient, and that, while she was provided a 69-page regulation to
      review, her supervisor never explained what additional documentation was
      required.   PFR File, Tab 4 at 12-15.     The appellant contends that there is no
      evidence that her supervisor ever advised her of what constituted “sufficient
      medical documentation.” Id. at 14.
¶12         It is undisputed that the medical documentation the appellant provided
      consisted of a note from a physician stating only that she needed to be excused
      from work from May 6-13, 2013. The documentation provided no reason for the
      appellant’s absence, and the note was stamped and not personally signed by any
      medical professional. IAF, Tab 6 at 5. The record also reflects that the appellant
      met with her supervisor concerning the documentation she submitted and that her
      supervisor provided her a deadline of 14 days to submit additional documentation.
      Her supervisor subsequently emailed her on the date it was due to see if she had
      obtained the necessary medical documentation. Id. at 30. The appellant did not
      submit any additional medical documentation to support her leave request. In
      addition, the record evidence reflects that the appellant previously was counseled
      regarding proper leave procedures. Id. at 25-28, 68, 72, 76, 81, 83.
¶13         During the hearing, the appellant and her supervisor both testified that the
      appellant refused to meet with her supervisor for any reason without a union
      official present. IAF, Tab 26, HCD. The appellant also testified that, when she
      and her union representatives met with her supervisor concerning her leave
      request, she was never advised of what was necessary to constitute sufficient
      medical documentation. Id. She testified further that, when she asked in the
      meeting what specific medical documentation was needed, her supervisor refused
      to tell her. Id. In contrast, the appellant’s supervisor testified that, when she and
                                                                                        8

      the Squadron Operations Officer met with the appellant and two union
      representatives, the supervisor explained to the appellant that her medical note
      required a diagnosis and her physician’s signature. Id. The supervisor testified
      further that she told the appellant that she had to provide this information for her
      leave to be approved and provided her 14 days within which to submit it. Id.
¶14        The hearing testimony of both the appellant and her supervisor reflects that
      the appellant had two union representatives present at this meeting. Id. Thus, the
      appellant could have called either or both of these witnesses to testify on her
      behalf about what transpired during the meeting. The appellant failed to do so.
      Nor did she provide any other evidence to support her claim that her supervisor
      refused to tell her what was necessary to constitute sufficient medical
      documentation.    To the extent the appellant is challenging the administrative
      judge’s determination that the appellant’s supervisor was more credible than the
      appellant, she has provided no basis upon which to disturb this determination.
      See Haebe, 288 F.3d at 1302.      Accordingly, we find no basis upon which to
      disturb the administrative judge’s determination that the agency proved by
      preponderant evidence that the appellant failed to provide the necessary medical
      documentation to substantiate her leave request, and thus, that she failed to
      follow leave procedures that resulted in her properly being charged AWOL.
¶15        The appellant additionally asserts that the agency failed to show nexus, and
      that the penalty of removal is too harsh. PFR File, Tab 4 at 15-17. However,
      “the nexus between the charged offense and the efficiency of the service is
      automatic when the charged offense is AWOL.”           Bryant v. National Science
      Foundation, 105 F.3d 1414, l417 (Fed. Cir. 1997).         Similarly, inappropriate
      conduct is disruptive to the workplace and undermines the efficiency of the
      service. Murray v. Department of the Army, 40 M.S.P.R. 250, 255 (1989).
¶16        Finally, the deciding official’s hearing testimony indicates that he
      considered the appellant’s written response to the charged misconduct and applied
      the relevant Douglas factors appropriately when assessing which penalty to
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impose.   IAF, Tab 26, HCD; Tab 5 at 28-37.         Furthermore, the administrative
judge found no evidence that the appellant had any remorse for her conduct and
that she did not accept any responsibility for her actions. ID at 18. Therefore, we
discern no error with the administrative judge’s finding that the penalty of
removal was reasonable. ID at 6. Accordingly, the appellant has provided no
basis upon which to disturb the initial decision.

                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:
                          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 U.S. 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.
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      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 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.
