                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHANNON L. BOPPRE,                              DOCKET NUMBER
                  Appellant,                         DE-0752-14-0386-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: October 11, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Shannon L. Boppre, Belcourt, North Dakota, pro se.

           Teresa M. Garrity, Esquire, Bloomington, Minnesota, 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 from Federal service. 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     administrative 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).
¶2         The appellant was formerly a GS-5 Telecommunications Equipment
     Operator for the Turtle Mountain Agency in the agency’s Bureau of Indian
     Affairs. Initial Appeal File (IAF), Tab 4 at 23. On April 8, 2014, the agency
     proposed to remove her based on four charges:         (1) misuse of a Government
     charge card (2 specifications); (2) failure to follow instructions (1 specification);
     (3) delinquency on a Government charge card (1 specification); and (4) off-duty
     criminal misconduct (5 specifications).       Id. at 39-46.     After hearing the
     appellant’s oral reply, id. at 35-37, the deciding official sustained all charges and
     imposed the penalty of removal, effective May 16, 2014, id. at 23, 25-33.
¶3         After holding the appellant’s requested hearing, the chief administrative
     judge found that the agency proved its charges by preponderant evidence and that
     it acted well within the bounds of reasonable management discretion in imposing
     the penalty of removal. IAF, Tab 17, Initial Decision (ID) at 9-17. He also found
     that the appellant failed to prove her affirmative defense of harmful
     error. ID at 17-18. The appellant petitions for review of the initial decision.
     Petition for Review (PFR) File, Tab 1.
¶4         The facts of the case, as the chief administrative judge found them, are as
     follows. The agency scheduled the appellant to go on temporary duty (TDY) to
     Standing Rock Agency from December 27, 2013, to January 7, 2014. Between
                                                                                         3

     December 21-24, 2013, the appellant made several cash withdrawals totaling
     $260 using her Government charge card, which she claimed were to buy things
     she needed for her trip, such as shampoo. Her withdrawals triggered an alert, and
     the agency’s finance department suspended her card. When the appellant was
     unable to reserve a hotel room, her supervisor, Chief L.N., had her card
     reinstated. She instructed the appellant that she was to use the card only for her
     hotel room and food; she was not to make any further cash withdrawals. Instead,
     the appellant would have to obtain reimbursement for any allowable out-of-
     pocket expenses by submitting a travel voucher. The appellant made daily cash
     withdrawals from January 2-5, 2013, in the total amount of $760. The appellant’s
     supervisor ended the appellant’s TDY because the agency’s finance department
     continued to report problems with the appellant’s charge card, whereupon it was
     determined    that   the   appellant   had   exceed   her   allowable   per diem   by
     approximately $600.
¶5        The appellant attempted to make a payment to the credit card company to
     cover the overage, but she did so with a bad check and her account went into
     delinquent status, which the agency discovered via a monthly report of agency
     employees with past due accounts.            Then the agency discovered that, on
     August 26, 2013, the appellant pled guilty to 5 misdemeanor counts of passing
     bad checks.
¶6        The agency’s first charge, misuse of a Government charge card, was for
     making $1,160 in cash withdrawals when the authorized meals and incidental
     expenses (M&IE) was only $46 per day, thereby exceeding her withdrawal limit
     by $631, and for using the card for $229.14 in purchases after she had withdrawn
     her maximum per diem. IAF, Tab 4 at 39-40, 49-113. The appellant admitted to
     making the cash withdrawals but claimed she did not exceed her per diem on
     purpose. The chief administrative judge correctly found that, because the charge
     did not require proof of intent, the appellant’s admission that she made the
     Government card charges was sufficient to sustain the specification. Baracker v.
                                                                                       4

     Department of the Interior, 70 M.S.P.R. 594, 602 (1996); ID at 10. He also found
     that the appellant understood the agency’s policy against using the card for
     purchases once the per diem limit had been met. ID at 10-11.
¶7         The second charge, failure to follow instructions, concerned the four cash
     withdrawals the appellant made in January after Chief L.N. expressly instructed
     her not to make any further cash withdrawals. The appellant contended that her
     supervisor instructed her to stop making withdrawals for a few days but had given
     her permission to use her card again by the time she resumed making
     withdrawals.     The chief administrative judge found that the appellant’s
     explanation was not supported by the documentary evidence and otherwise
     unsubstantiated, although the appellant could have called her supervisor as a
     witness if the appellant believed she would corroborate the appellant’s story. ID
     at 11-12.
¶8         The third charge, delinquency on a Government charge card, concerned the
     appellant’s appearance on the March 2014 delinquency list with a balance of $521
     more than 30 days past due. IAF, Tab 4 at 115-16. The appellant admitted that
     she was delinquent, and the chief administrative judge found that this was
     sufficient to sustain the charge. ID at 12.
¶9         The fourth charge, off-duty criminal misconduct, concerned the five
     misdemeanor convictions for passing bad checks.       IAF, Tab 4 at 118-27.     The
     appellant attempted to explain that the bad checks were the result of bank errors,
     not the result of her own criminal conduct, and were only misdemeanors and so
     not very serious.   The chief administrative judge found that the agency only
     charged her with pleading guilty to misdemeanors and that her attempts to blame
     her bank were unsubstantiated.          Cf. Alberto v. Department of Veterans
     Affairs, 98 M.S.P.R. 50, ¶ 10 (2004) (finding that the appellant’s attempt to shift
     the blame for his misconduct to others reflected poor potential for rehabilitation);
     ID at 12-13.
                                                                                           5

¶10           On review, the appellant reiterates her argument below that, if the agency
      had issued her a travel authorization in a timely manner, she would have known
      what her allowed per diem was and would not have exceeded it. PFR File, Tab 1
      at 1. It appears that the agency’s electronic travel system was down and it was
      difficult to find anyone available to issue a manual travel authorization because of
      the end-of-year holiday season so the appellant did not receive her travel
      authorization before she left. The appellant suggests that the lack of a travel
      authorization meant she did not know the limit on her per diem. It is fairly easy
      to discover Federal per diem rates by making a telephone call or conducting a
      simple internet search. Instead, the appellant contacted the issuing bank, which
      could only tell the appellant the maximum amount that the bank would authorize,
      not the amount allowed by the agency. We agree with the chief administrative
      judge    that   the absence   of   a   travel   authorization   does not   excuse   the
      appellant’s behavior.
¶11           The appellant contends for the first time on review that the agency removed
      her in retaliation for stating that the agency violated travel policy by sending her
      TDY without a travel authorization. Id. The appellant began making improper
      cash withdrawals days before she would have received a travel order, so it makes
      little sense that the agency would retaliate against her for making disclosures that
      did not begin until she already had commenced her course of misconduct. In any
      event, 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 made no such
      showing here.
¶12           The appellant claimed that the agency’s failure to provide her with a travel
      authorization prior to her departure constituted harmful error warranting reversal
      of the removal. The chief administrative judge found, and we agree, that the late
      arrival of the appellant’s travel authorization is not “harmful error in the
                                                                                                6

      application     of   the    agency’s   procedures     in   arriving    at   such   decision”
      under 5 U.S.C. § 7701(c)(2)(A). Boatman v. Department of Justice, 66 M.S.P.R.
      58, 63 (1994); ID at 17-18.         Instead, it is an alleged error that concerns the
      circumstances under which the charged misconduct occurred and relates, if at all,
      to the merits or the penalty. Boatman, 66 M.S.P.R. at 63.
¶13            Turning to the penalty, when all of the agency’s charges are sustained, the
      Board will review the agency-imposed penalty only to determine if the agency
      considered all the relevant factors and exercised management discretion within
      the      tolerable   limits    of   reasonableness.         Ellis     v.    Department    of
      Defense, 114 M.S.P.R. 407, ¶ 11 (2010). In making this determination, the Board
      must give due weight to the agency’s primary discretion in maintaining employee
      discipline and efficiency, recognizing that the Board’s function is not to displace
      management’s responsibility, but to ensure that managerial judgment has been
      properly exercised. Id. The Board will modify or mitigate an agency-imposed
      penalty only when it finds the agency failed to weigh the relevant factors or the
      penalty clearly exceeds the bounds of reasonableness. Id.
¶14            The nature and seriousness of the appellant’s offense is the most significant
      factor in a penalty determination.          Hamilton v. Department of Homeland
      Security, 117 M.S.P.R. 384, ¶ 11 (2012). Here, as to the penalty determination,
      the deciding official prepared an extensive Douglas 2 analysis as part of the
      removal notice. IAF, Tab 4 at 28-32. He considered the appellant’s misconduct
      to be very serious because it showed a blatant disregard for her supervisor’s
      instructions and of the agency’s charge policies despite specific notice of the
      rules.     Id. at 29.      The deciding official found that the delinquency on the
      appellant’s charge card account and her misdemeanor convictions showed, “you
      did not merely fail to pay your debts, you attempted to pay them from non-
      existent accounts, which demonstrates financial irresponsibility and a lack of

      2
          Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
                                                                                        7

      integrity.”      Id.   He considered that the appellant’s position was with a law
      enforcement organization and required frequent travel and, necessarily, frequent
      use of the Government charge card and that her misconduct called her honesty
      and integrity into doubt. Id. at 30.
¶15         The appellant has a prior 14-day suspension in August 2012 for
      9 specifications of misuse of a Government credit card (in which she made
      unauthorized cash withdrawals while not in a travel status), and 1 specification of
      failure to pay a Government credit card on time. Id. at 31, 129, 131-36. By that
      point in time, the appellant had clear notice of the policies and rules surrounding
      the use of Government charge cards. However, within less than 4 months from
      her return to duty following the suspension, the appellant again began to misuse
      her charge card. Even after her supervisor gave the appellant specific instructions
      to stop taking cash advances from the charge card, the appellant continued to do
      so. The deciding official found these circumstances to reflect poor potential for
      rehabilitation. Id. at 31. He remarked that the appellant claimed during her oral
      reply that she had learned her lesson after the suspension, but she clearly had not.
      Id. at 31, 36.
¶16         The deciding official also considered that removal was consistent with the
      agency’s table of penalties and with the penalties imposed on others for similar
      offenses. Id. at 30. He considered the appellant’s more than 13 years of service,
      her good performance record, and reputation for dependability. Id.
¶17         On review, the appellant asserts generally that the deciding official did not
      know her well enough to make judgments about her work ethic and character.
      PFR File, Tab 1 at 1. She also alleges that the misdemeanor convictions did not
      involve dishonesty because if she had wanted to be dishonest, she would not have
      reported them to her supervisor as soon as she had notice from the court. Id. In
      her oral reply, she said she informed her supervisor, not that she was facing
      charges for passing bad checks, but about problems with her bank. IAF, Tab 4
      at 36-37. However, a coworker saw a newspaper article about the appellant’s
                                                                                        8

      convictions and showed it to the appellant’s supervisor. Id. The notes of the oral
      reply state, “[The appellant] expressed disappointment that some co-workers felt
      compelled to be involved in other employees’ personal affairs.” Id. at 37. The
      appellant’s statements in her oral reply are at odds with her claim on review that
      she informed her supervisor about her legal trouble.
¶18        The chief administrative judge found, and we agree, that the deciding
      official properly considered the aggravating and mitigating factors most relevant
      to the case. He further found, and we agree, that the penalty of removal is well
      within the bounds of reasonableness, and there is no basis here to interfere with
      the agency’s legitimate exercise of management discretion.
¶19        Accordingly, we find that the chief administrative judge correctly affirmed
      the agency’s removal action.

                      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
                                                                                 9

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.
      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.
