                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CYNTHIA M. MCCRAY,                              DOCKET NUMBER
                  Appellant,                         AT-0752-14-0810-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: February 9, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Cynthia M. McCray, Memphis, Tennessee, pro se.

           Bradley Flippin, Nashville, Tennessee, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     sustained the appellant’s 21-calendar day suspension.           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

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the 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, and based on the following
     points and authorities, 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 filed an appeal of the agency’s action suspending her for 21
     calendar days from her position as a GS-07 Purchasing Agent within the agency’s
     Prosthetics Treatment Center.    Initial Appeal File (IAF), Tab 1.     The agency
     based its action on the following two charges: (1) failure to follow supervisor
     instructions (two specifications); and (2) failure to answer and respond to
     telephone calls and/or emails from customers (two specifications). IAF, Tab 4,
     Subtab 4d. On appeal, the administrative judge sustained the first charge, finding
     that the agency proved both specifications. IAF, Tab 18, Initial Decision (ID) at
     6. Regarding the second charge, the administrative judge did not sustain the first
     specification, finding that the agency did not prove that the appellant failed to
     answer telephone calls on December 9, 2013.         The administrative judge did,
     however, sustain the second specification, finding that the agency proved by
     preponderant evidence that the appellant failed to answer emails and telephone
     calls from a customer on January 31, 2014, and, thus, sustained the second
     charge. To the extent that the appellant raised the affirmative defenses of a due
     process violation and harmful error in the application of the agency’s procedures,
     the administrative judge found that the appellant failed to meet her burden of
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     proof.   The administrative judge concluded that the penalty of a 21-day
     suspension was not excessive and, thus, affirmed the agency’s action.
¶3        On review, the appellant accuses the administrative judge of bias.           In
     making a claim of bias or prejudice against an administrative judge, a party must
     overcome    the   presumption    of   honesty   and   integrity   that   accompanies
     administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
     382, 386 (1980). Here, the appellant asserts that the administrative judge showed
     bias by finding that she had committed insubordination—a level of misconduct
     more serious than what the agency charged. Petition for Review (PFR) File, Tab
     1 at 3. She also asserts that the administrative judge showed bias by finding her
     testimony “VAGUE AND EVASIVE AND UNWORTHY OF BELIEF.”                            Id.
     (capitals in original). An administrative judge’s conduct during the course of a
     Board proceeding warrants a new adjudication only if the administrative judge’s
     comments or actions evidence “a deep-seated favoritism or antagonism that would
     make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
     1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
     555 (1994)). Further, an allegation of bias by an administrative judge must be
     raised as soon as practicable after a party has reasonable cause to believe that
     grounds for disqualification exist and must be supported by an affidavit. Lee v.
     U.S. Postal Service, 48 M.S.P.R. 274, 280-82 (1991).
¶4        Here, the appellant has failed to support her claim with an affidavit and
     there is nothing in the record to support a finding of bias by the administrative
     judge.   Rather, the record reflects that the appellant is dissatisfied with the
     administrative judge’s adjudicatory rulings and credibility determinations. This
     does not establish bias.        Moreover, while the appellant challenges the
     administrative judge’s determination that her actions constitute insubordination,
     which could properly be relied on as an enhancement factor in the penalty
     determination, his finding is correct. If an agency proves that the employee’s
     failure to follow instructions was intentional rather than merely negligent, then it
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     is free to use the fact as an aggravating factor in the penalty section.        See
     Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 556 (1996).
¶5        The appellant also appears to challenge the administrative judge’s
     determinations regarding the sustained specifications.     In this connection, the
     appellant appears to reassert her claim that, in the interest of privacy and patient
     care, she was justified in her actions. PFR File, Tab 1 at 4. The appellant has
     failed to provide any evidence, however, to support her claim.            We have
     considered the appellant’s arguments on review concerning the administrative
     judge’s weighing of the evidence, and find that the applicable law and the record
     evidence support the administrative judge’s findings that the agency proved by
     preponderant evidence the charged misconduct of failure to follow supervisory
     instructions and failure to answer and respond to telephone calls and/or emails
     from customers. Thus, we discern no reason to reweigh the evidence or substitute
     our assessment of the record evidence for that of the administrative judge. See
     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 the administrative judge
     considered the evidence as a whole, drew appropriate inferences, and made
     reasoned conclusions); Broughton v. Department of Health & Human Services,
     33 M.S.P.R. 357, 359 (1987) (same).
¶6        Specifically, the administrative judge thoroughly addressed the record
     evidence, as well as the hearing testimony and found that the appellant admitted
     that she intentionally refused to comply with her supervisor’s order on
     December 4, 2013, to generate a quote for patient supplies, and she testified that,
     because she did not agree with her second-level supervisor’s instructions on
     January 31, 2014, she refused to comply with the direct order to reprint a
     vendor’s payment information and to discuss it with the vendor’s representative.
     ID at 3-5.   The administrative judge found further that the appellant did not
     dispute that on January 31, 2014, she told her second-level supervisor that she
     refused to comply with the order and that she could “do what you have to do.” ID
                                                                                           5

     at 5.    Consequently, the administrative judge determined that the appellant’s
     failure to comply with her supervisor’s orders was intentional. ID at 6. While
     the administrative judge did not sustain the first specification of the second
     charge, finding that the agency did not prove that the appellant failed to answer
     telephone calls on December 9, 2013, the administrative judge did, however,
     sustain the second specification, finding that the agency proved by preponderant
     evidence that the appellant failed to answer emails and telephone calls from a
     customer on January 31, 2014, and, as a result, he sustained the second charge.
     ID at 7-9. 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).    Thus, while the appellant disagrees with the administrative judge’s
     findings, her bare assertions are insufficient to warrant disturbing the
     administrative judge’s reasoned conclusions.
¶7           In addition, the appellant argues that the deciding official failed to consider
     all of the Douglas 2 factors. However, it is well settled that not all of the factors
     are pertinent in every case.         See Luna v. Social Security Administration,
     85 M.S.P.R. 301, ¶ 16 (2000). Further, an agency need not demonstrate that it
     considered all mitigating factors in determining the penalty; similarly, the
     administrative judge need not contemplate mitigating factors not identified by the
     appellant as significant. See Yeschick v. Department of Transportation, 801 F.2d
     383, 385 (Fed. Cir. 1986).       In this case, the deciding official considered the
     appellant’s years of service, the seriousness of the charged misconduct and the
     ineffectiveness of lesser discipline (including two recent shorter suspensions) for
     similar conduct in the past, and whether there were mitigating circumstances that


     2
       The Board will review an agency-imposed penalty only to determine if the agency
     considered all the relevant factors and exercised management discretion within tolerable
     limits of reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306
     (1981).
                                                                                   6

would warrant mitigation of the penalty. IAF, Tab 4, Subtab 4a, Tab 16, Hearing
CD (testimony of the deciding official). Thus, the record shows that the deciding
official properly considered the relevant Douglas factors. Moreover, the record
reflects   that    the   administrative   judge   also   thoroughly   addressed   the
reasonableness of the penalty. ID at 11-13. In doing so, the administrative judge
considered the relevant Douglas factors and the seriousness of the penalty and
found the 21-calendar day suspension reasonable.               Under all of these
circumstances and after carefully weighing the Douglas factors, we find no
justification 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 United
States 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 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.
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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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providin g pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
