                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LAMONTE L. PURIFOY,                             DOCKET NUMBER
                  Appellant,                         CH-0752-14-0185-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: June 11, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lamonte L. Purifoy, Milwaukee, Wisconsin, pro se.

           Erin Buck Kaiser, Esquire, Milwaukee, Wisconsin, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     mitigated the appellant’s removal to a 40-day suspension.            For the reasons
     discussed below, we GRANT the petition for review. We AFFIRM the initial



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     decision to the extent that it sustained the charges and found nexus.           We
     REVERSE the administrative judge’s decision to mitigate the penalty.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The agency hired the appellant as a housekeeping aid. Initial Appeal File
     (IAF), Tab 10 at 101. Due to a prior criminal conviction, the appellant was on
     parole and therefore supervised by a probation and parole agent at the time of his
     employment. Hearing Transcript (HT) at 5-7. The appellant sought in-patient
     treatment at an agency facility. IAF, Tab 10 at 39. Prior to this treatment, the
     appellant had committed several probation violations; he also missed meetings
     with his probation and parole agent while he was in treatment. IAF, Tab 35 at 29.
     Due to these parole violations, a warrant was issued for the appellant’s arrest. HT
     at 7-9. After hearing of the arrest warrant, the appellant discharged himself from
     the agency facility, turned himself in to authorities, and entered a state facility.
     HT at 10. Prior to the appellant’s entrance into the state facility, his third-level
     supervisor told the appellant that he had to request leave for his absence, but the
     appellant did not do so. HT at 109-10.
¶3        Sometime after the appellant entered the state facility, he also entered a
     treatment program within the facility. IAF, Tab 9 at 6-7. He was later discharged
     from the treatment program, though, due to misconduct.         IAF, Tab 35 at 24.
     While the appellant was in the state facility, the agency sent him a duty status
     letter directing him to return to work and/or to provide medical documentation,
     IAF, Tab 10 at 81, but he did not respond. The appellant briefly returned to work
     approximately 2 months later, after leaving the state facility. Id. at 80. However,
     the agency subsequently proposed the appellant’s removal based upon his
     unexcused and continued absence from work, including the time he was receiving
     treatment at the agency facility. Id. at 74-76. The agency revised the proposal to
     include two charges of unauthorized absences, which excluded the time that the
     appellant was receiving treatment at the agency facility.            Id. at 57-58.
                                                                                      3

     Specifically, as to the second charge, the agency charged the appellant with an
     extended period of unauthorized absences from approximately May 7, 2013, until
     the date of the proposed removal. Id. at 27-29, 57-58. The agency stated that,
     during some or all of that time, the appellant was incarcerated and had not
     reported to work. Id. at 57.
¶4        The appellant filed an appeal of this removal. IAF, Tab 1. After holding a
     hearing, the administrative judge found that the agency proved both charges, but
     determined that the second charge should be sustained for a shorter time period
     than alleged. IAF, Tab 40, Initial Decision (ID) at 6-10. In particular, she found
     that the agency did not dispute that it had authorized the appellant to receive
     treatment for an indefinite time period and that this treatment initially was
     provided in an agency facility. ID at 6. The administrative judge next found that,
     subsequent to his treatment in the agency facility, the appellant was in a state
     facility with the primary purpose of receiving treatment. ID at 9. However, she
     found that the appellant was incarcerated for 38 days after being terminated from
     the treatment program and therefore sustained the charge for 38 days. Id. The
     administrative judge sustained the second charge based upon the shorter time
     period and, after considering the relevant Douglas factors, mitigated the penalty
     to a 40-day suspension. ID at 11-13.
¶5        The agency has timely petitioned for review asserting that the appellant’s
     removal should be sustained. Petition for Review (PFR) File, Tab 1. The agency
     argues that, after the appellant voluntarily left the agency treatment facility, he
     was incarcerated beginning from his entrance into the state facility until leaving
     the state facility. Id. at 9-10. The appellant has filed a response, PFR File, Tab
     3, and the agency has filed a reply, PFR File, Tab 4.
¶6        The administrative judge’s decision not to sustain the second unauthorized
     absence charge for the entire time period and instead to only sustain the charge
     for 38 days was, in effect, a determination that the agency did not prove all
     specifications of that charge.         See Young v. Department of Veterans
                                                                                      4

     Affairs, 83 M.S.P.R. 187, ¶¶ 18-19 (1999). Where more than one event or factual
     specification supports a single charge, proof of one or more, but not all, of the
     supporting specifications is sufficient to sustain the charge.       Burroughs v.
     Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990). The agency argues
     on review that the administrative judge should have sustained the second charge
     in full. PFR File, Tab 1 at 10-11. We need not address that argument because,
     for the reasons set forth below, we find that the penalty of removal was
     appropriate even if the second charge was proven only in part.
¶7        In Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), the Board
     set forth a nonexhaustive list of twelve factors that are relevant in assessing the
     penalty to be imposed for an act of misconduct.       Where, as here, all of the
     agency’s charges are sustained, but some of the underlying specifications are not
     sustained, the agency’s penalty determination is entitled to deference and should
     be reviewed only to determine whether it is within the parameters of
     reasonableness. Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 29
     (2009).   In determining whether the selected penalty is reasonable, the Board
     gives due deference to the agency’s discretion in exercising its managerial
     function of maintaining employee discipline and efficiency.           Woebcke v.
     Department of Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010). The Board
     recognizes that its function is not to displace management’s responsibility or to
     decide what penalty it would impose, but to assure that management judgment has
     been properly exercised and that the agency’s selected penalty does not exceed
     the maximum limits of reasonableness.       Id.   Thus, the Board will modify a
     penalty only when it finds that the agency failed to weigh the relevant factors or
     that the penalty the agency imposed clearly exceeded the bounds of
     reasonableness. Id.
¶8        The administrative judge found that the agency based its penalty
     determination on the severity of the misconduct and the appellant’s past
     disciplinary record, but she found these factors weighed in favor of mitigation
                                                                                        5

      because the total 40-day period of unauthorized absence that the agency
      ultimately proved was less severe than the conduct that the agency originally had
      charged; she also noted that this was the appellant’s first offense. ID at 11-12;
      see IAF, Tab 10 at 35-36.       Although the administrative judge sustained the
      unauthorized absence charge for fewer days than originally charged, we disagree
      that the lesser sustained 40-day absence served as a significantly mitigating factor
      because an unauthorized absence charge of 40 days remains a serious charge. See
      Thom v. Department of the Army, 114 M.S.P.R. 169, ¶ 7 (2010) (citing Foreman
      v. U.S. Postal Service, 89 M.S.P.R. 328, ¶ 17 (2001) (being absent without leave
      (AWOL) for 16 days is serious)). In addition, we note that the deciding official
      testified that he had to supplement staffing due to the appellant’s lengthy absence.
      HT at 62. Therefore, although the appellant’s lack of a disciplinary record was a
      mitigating factor that the deciding official properly considered, we find that the
      appellant’s extended absence weighs against mitigation.             See Leach v.
      Department of Veterans Affairs, 107 M.S.P.R. 229, ¶¶ 14-15 (2007) (sustaining a
      removal where mitigating factors were outweighed by the appellant’s extended
      absence that placed additional workload on his coworkers).
¶9         The administrative judge also found that the appellant was not on clear
      notice that his continued absence from work would result in severe discipline
      because the agency had told the appellant that he could be away from work to
      obtain treatment. ID at 12. We disagree. The appellant’s third-level supervisor
      testified that he told the appellant that he was required to request leave for the
      time period he was in the state facility. HT at 111-13.
¶10        Additionally, the administrative judge found that a 40-day suspension was
      consistent with the agency’s table of penalties, noting that the agency considered
      the appellant’s absence as a third offense because his continuing and extended
      absence was classified as more than one offense under agency guidance. ID at
      12; see IAF, Tab 10 at 142, 144. However, pursuant to the agency’s table of
      penalties, the penalty for a third offense of unexcused or unauthorized absence is
                                                                                            6

      a 14-day suspension to removal. IAF, Tab 10 at 144. Therefore, we find that the
      agency’s chosen penalty, which is entitled to deference, is also consistent with
      the table of penalties.
¶11         As to mitigating factors, the administrative judge found that the appellant
      cared about his job and had a good work history. ID at 12. The deciding official
      considered the appellant’s service and work performance, particularly his
      exceptional rating in certain critical elements on his performance review. HT at
      54, 63-65; see IAF, Tab 10 at 35, 37.            We see no reason to disturb the
      administrative judge’s finding concerning the appellant’s brief, but good, work
      history.   IAF, Tab 10 at 121-28.         We also note that the deciding official
      considered as a mitigating factor that the appellant was seeking treatment for a
      disabling condition. HT at 65; IAF, Tab 10 at 37. However, he found that this
      factor was not significantly mitigating as the appellant was not fully pursuing
      rehabilitation for his problem. HT at 65. We find that the deciding official’s
      consideration of the appellant’s condition was appropriate.              See Tate v.
      Department of Defense, 57 M.S.P.R. 180, 190 (1993) (considering in the penalty
      analysis the appellant’s lack of rehabilitation potential due to his refusal to seek
      treatment); see also Bishopp v. Department of the Air Force, 75 M.S.P.R. 33, 41
      (1997) (noting that the appellant’s failure to bring her mental health condition to
      the agency’s attention and the fact that she initially did not cooperate in seeking
      treatment could indicate a lack of rehabilitative potential).
¶12         We conclude that the deciding official considered the relevant Douglas
      factors and that the penalty of removal falls within the tolerable limits of
      reasonableness. 2 See Maddux v. Department of the Air Force, 68 M.S.P.R. 644,
      645-46 (1995) (removal is a reasonable penalty for approximately 2 weeks of


      2
        The administrative judge provided mixed-case appeal rights in the initial decision. ID
      at 15-20. Because the appellant has not raised a discrimination claim, however, we find
      that these rights were provided in error and instead provide the correct notice below.
      Harrison v. Department of Veterans Affairs, 96 M.S.P.R. 571, ¶ 3 nn.1-2 (2004).
                                                                                  7

AWOL despite the fact that there were mitigating factors, including the
employee’s length of service and his personal problems).          Accordingly, we
REVERSE the administrative judge’s decision to mitigate the penalty and we
SUSTAIN the appellant’s removal.

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
     The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. 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 website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
                                                                                 8

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 appeal to
the 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:                              ______________________________
                                            William D. Spencer
                                            Clerk of the Board
Washington, D.C.
