                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     KATHLEEN HANSEN,                                DOCKET NUMBER
                 Appellant,                          PH-0752-14-0008-I-2

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: March 13, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Kathleen Hansen, Whiting, New Jersey, pro se.

           Kurt W. Perhach, Picatinny Arsenal, New Jersey, 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 judge’s rulings

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.

                                     BACKGROUND
¶2         The agency removed the appellant from her Contract Specialist position.
     Initial Appeal File (IAF), Tab 3, Subtab 4b. She timely appealed the removal,
     IAF, Tab 1, and following a dismissal without prejudice, IAF, Tab 8, timely
     refiled the appeal, Refiled Appeal File (RAF), Tab 1.        After a hearing, the
     administrative judge affirmed the removal. RAF, Tab 14, Initial Decision (ID).
¶3         The appellant has filed a timely petition for review in which she asserts,
     inter alia, that: the deciding official did not consider her written response; her
     prior discipline was improperly considered; the administrative judge improperly
     excluded some of her proposed witnesses; the charges against her were
     improperly reclassified and improperly sustained; and the administrative judge
     was biased. Petition for Review (PFR) File, Tab 1 at 5-12. The appellant also
     asserts that the administrative judge erred in finding that she failed to establish
     her affirmative defense of equal employment opportunity (EEO) retaliation in
     particular because he incorrectly found that the deciding official was unaware that
     she had filed an EEO complaint.       Id. at 10-11.   Additionally, the appellant
     reasserts that her removal was a violation of her First Amendment rights and
     argues, for the first time on review, that the constant “rehashing” of her past
                                                                                        3

     disciplinary record is a violation of the Fifth Amendment in that it constitutes
     double jeopardy. 2 Id. at 12. The agency responds in opposition to the petition.
     PFR File, Tab 5.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4        When taking an adverse action against an employee, an agency must
     establish that: (1) the charged conduct occurred; (2) a nexus exists between the
     conduct and the efficiency of the service; and (3) the particular penalty imposed
     is reasonable. Crawford-Graham v. Department of Veterans Affairs, 99 M.S.P.R.
     389, ¶ 16 (2005) (citing 5 U.S.C. §§ 7701(c)(1)(B), 7513(a)). For a charge to be
     sustained, an agency must prove all of the elements of the charge by a
     preponderance of the evidence. 3      Crawford-Graham, 99 M.S.P.R. 389, ¶ 17
     (citing Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.
     1990)).

     The administrative judge properly sustained the charges of disrespectful conduct
     towards a supervisor and insubordination.
¶5        The appellant was removed based upon six specifications of disrespectful
     conduct towards a supervisor and one specification of insubordination. IAF, Tab
     3, Subtab 4b. The administrative judge found, based upon the record as a whole,
     including the hearing testimony and the content of the emails supporting the
     specifications, that the agency proved all six specifications of disrespectful
     conduct towards a supervisor. ID at 5-6; see RAF, Tab 9, Exhibits 1-7. With
     regard to a charge of disrespectful conduct, the Board considers the context in
     which comments are made to determine whether misconduct occurred. Daigle v.


     2
       Although the appellant has submitted evidence on review, PFR File, Tab 2, we have
     not considered it because she has not shown that this evidence is new and material.
     5 C.F.R. § 1201.115.
     3
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, wou ld accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
                                                                                          4

     Department of Veterans Affairs, 84 M.S.P.R. 625, ¶ 6 (1999).                We have
     considered the content and context of the emails at issue in the specifications, as
     well as the evidence and testimony concerning the appellant’s refusal to attend a
     meeting as directed by the proposing official and her second-line supervisor, the
     appellant’s communications during meetings, and the appellant’s interactions
     with both the proposing official and her second-line supervisor. See IAF, Tab 3,
     Subtab 4c; RAF, Tab 9; Hearing Compact Disc (HCD). Based upon this review,
     we find no reason to disturb the administrative judge’s finding sustaining all six
     specifications of disrespectful conduct.
¶6        The administrative judge also sustained the insubordination charge, finding
     that the appellant did not dispute the factual assertions in the specification, that
     the appellant’s second-line supervisor issued her a valid order to listen and
     remain in a meeting, and that the appellant willfully refused to obey the order
     when she abruptly left the meeting. ID at 6-7. Insubordination is the willful and
     intentional refusal to obey an authorized order of a superior officer which the
     officer is entitled to have obeyed. Parbs v. U.S. Postal Service, 107 M.S.P.R.
     559, ¶ 13 (2007), aff’d, 301 F. App’x 923 (Fed. Cir. 2008). The record reflects
     that the appellant’s second-line supervisor was entitled to order and did order the
     appellant to remain in the meeting, but she willfully and intentionally left the
     meeting.   See IAF, Tab 3, Subtab 4c; HCD.          Therefore, we see no reason to
     disturb the administrative judge’s findings sustaining this charge. 4

     The appellant has not established her affirmative defense of EEO retaliation.
¶7        On review, the appellant argues that the administrative judge erred in
     finding that she did not establish her affirmative defense of EEO retaliation, in

     4
       The appellant challenges the administrative judge’s finding sustaining the charges
     against her, stating that there never was any insubordination or disrespectful conduct.
     PFR File, Tab 1 at 6. We find that the appellant’s arguments provide no basis for us to
     disturb the initial decision because the appellant’s mere disagreement with the
     administrative judge’s conclusions does not provide a basis for Board review. See
     Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133–34 (1980).
                                                                                       5

     particular because the administrative judge incorrectly found that the deciding
     official did not have knowledge of her EEO activity prior to removing her. PFR
     File, Tab 1 at 10-11. The appellant points to an email that she sent prior to her
     removal to several individuals, including the deciding official, in which she stated
     that she had filed an EEO complaint. Id.; see IAF, Tab 3, Subtab 4c.
¶8          Where, as here, the record is complete on the issue of retaliation, the
     Board’s inquiry proceeds to the ultimate question of whether, upon weighing the
     evidence presented by both parties, the appellant has met her overall burden of
     proving retaliation by preponderant evidence. Dwyer v. Department of Veterans
     Affairs, 107 M.S.P.R. 632, ¶ 7 (2008). In his initial decision, the administrative
     judge considered the deciding official’s testimony that she only became aware of
     the appellant’s EEO complaint after she rendered the removal decision. ID at
     8-9.    However, the administrative judge also found that the appellant failed to
     demonstrate a genuine nexus between her prior EEO activity and her removal,
     that the agency had a legitimate nondiscriminatory and nonretaliatory reason for
     removing the appellant in that she had repeated charges of misconduct, and that
     the appellant presented no evidence that the agency’s stated reason was
     pretextual. ID at 9-10. Based upon our review of the record as a whole, we find
     that, regardless of whether the deciding official knew about the appellant’s EEO
     activity prior to removing her, the appellant failed to establish her affirmative
     defense of EEO retaliation. See Keller v. Department of the Army, 113 M.S.P.R.
     557, ¶ 12 (2010) (even assuming that the appellant engaged in protected EEO
     activity of which the proposing official was aware and that retaliation could have
     been the motive for the removal action, the appellant failed to establish a genuine
     nexus between the protected activity and the removal).

     The administrative judge properly determined that the appellant did not prove her
     affirmative defense of harmful procedural error.
¶9          On review, the appellant argues that the agency committed harmful
     procedural error when the deciding official considered her prior discipline and
                                                                                        6

      that the administrative judge erred in excluding witnesses who would have
      testified as to issues concerning her prior discipline. PFR File, Tab 1 at 5-6. She
      also asserts that the discipline that was the subject of pending EEO proceedings
      should not have been considered. Id. at 11-12. An agency may consider prior
      discipline as an aggravating factor in a current misconduct case if the employee
      was informed of the prior action in writing, the action was a matter of record, and
      the employee was permitted to dispute the charges before a higher level of
      authority other than the one that imposed the discipline. Bolling v. Department of
      the Air Force, 9 M.S.P.R. 335, 339-40 (1981). Here, the appellant was informed
      of the prior actions in proposed decisions, she was given the opportunity to
      dispute the charges, and the actions were imposed by a deciding official who was
      different from the proposing official. IAF, Tab 3, Subtabs 4e-4i. The appellant
      was informed in the proposal to remove her that the agency would be relying on
      the prior discipline in imposing the penalty.      IAF, Tab 3, Subtab 4d.       We
      therefore find that the appellant has not shown error by the agency as to its
      consideration of the prior discipline and that the administrative judge properly
      excluded witnesses concerning the prior discipline because the discipline was not
      at issue in the current case. Additionally, we find no error in the consideration of
      a disciplinary action that was the subject of an EEO complaint because our
      reviewing court has held that a prior disciplinary action that is being challenged
      through the EEO process may still be considered in assessing a proper penalty.
      Blank v. Department of the Army, 247 F.3d 1225, 1230 (Fed. Cir. 2001).

      The administrative judge properly determined that the appellant’s removal did not
      violate the First Amendment.
¶10        We also find unpersuasive the appellant’s argument that her removal
      violated the First Amendment. PFR File, Tab 1 at 12. In order to determine
      whether speech is protected by the First Amendment, the Board must determine:
      (1) whether the speech addressed a matter of public concern and, if so,
      (2) whether the agency’s interest in promoting the efficiency of the service
                                                                                      7

      outweighs the employee’s interest as a citizen.        Smith v. Department of
      Transportation, 106 M.S.P.R. 59, ¶ 46 (2007).          Here, we find that the
      administrative judge correctly determined that the appellant was not addressing a
      matter of public concern and that her removal therefore did not violate the First
      Amendment. ID at 11-12.

      The appellant’s remaining affirmative defenses do not provide a basis for
      disturbing the initial decision.
¶11        The appellant asserts for the first time on review that her removal violates
      the constitutional prohibition against double jeopardy and that she did not have a
      meaningful opportunity to respond to her proposed removal. PFR File, Tab 1 at
      11-12. 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. Even if we did consider these arguments, however, we find that
      they are not supported by the record.     In particular, the appellant did indeed
      respond to the proposed removal and the removal decision specifically addressed
      her response.   IAF, Tab 3, Subtabs 4b-4c.     We therefore find that she had a
      meaningful opportunity to respond to the proposal letter. We also find that the
      appellant’s argument regarding double jeopardy is without merit because there is
      no evidence that she was disciplined twice for the same misconduct. Cooper v.
      Department of Veterans Affairs, 117 M.S.P.R. 611, ¶ 5 (2012) (although the
      constitutional prohibition against double jeopardy applies only to defendants in
      criminal cases, and not to petitioners in administrative proceedings before the
      Board, an agency cannot impose a disciplinary or adverse action more than once
      for the same misconduct), aff’d, 515 F. App’x 897 (Fed. Cir. 2013); see Frederick
      v. Department of Homeland Security, 2015 MSPB 11, ¶ 6 (an agency cannot rely
      upon employee misconduct that formed the basis of a prior disciplinary or adverse
      action when imposing a subsequent disciplinary or adverse action).
                                                                                                   8

      The administrative judge correctly determined that there is a nexus between the
      charged misconduct and the efficiency of the service.
¶12         Next, we find that the administrative judge properly found a nexus between
      the appellant’s charged misconduct and the efficiency of the service. ID at 12.
      The Board has held that disrespect toward supervisors seriously undermines the
      capacity of management to maintain employee efficiency and discipline. Fonville
      v. Department of Health & Human Services, 30 M.S.P.R. 351, 354-55 (1986).
      Thus, we agree with the administrative judge that there is a nexus between both
      the   appellant’s     disrespectful    conduct    towards       a     supervisor    and     her
      insubordination and the efficiency of the service. See Beaudoin v. Department of
      Veterans   Affairs,    99   M.S.P.R.    489,     ¶¶ 10,   17,       aff’d   as   modified   on
      recons., 100 M.S.P.R. 507 (2005), aff’d, 202 F. App’x 460 (Fed. Cir. 2006).

      The administrative judge properly determined that the penalty was reasonable.
¶13         Where, as here, all of the agency’s charges have been sustained, the Board
      will review the agency-imposed penalty only to determine if the agency
      considered all of the relevant Douglas factors and exercised management
      discretion within the tolerable limits of reasonableness. 5 Woebcke v. Department
      of Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010).                   The deciding official
      credibly testified that she considered all of the Douglas factors but that she
      highlighted the most important factors in her decision. HCD. She testified as to
      the most significant Douglas factors, including that: the appellant’s offense of
      “storming out of a meeting” was very serious; the offenses were repeated; the
      offenses were intentional; the appellant demonstrated no regret or remorse; there
      were no mitigating circumstances; and the appellant did not have rehabilitative
      potential as there had been previous discipline. HCD; see IAF, Tab 3, Subtab 4b.
      The deciding official also testified that she considered the agency’s table of

      5
        In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
      articulated a nonexhaustive list of twelve factors that are relevant in assessing the
      penalty to be imposed for an act of misconduct.
                                                                                        9

      penalties and the appellant’s past service and performance. HCD; see IAF, Tab 3,
      Subtab 4b. Considering the record as a whole, we find that the agency considered
      all of the relevant Douglas factors and exercised management discretion within
      the tolerable limits of reasonableness. Therefore, we do not disturb the
      administrative judge’s finding that the removal penalty was warranted in this
      case.

      The appellant has not shown that the administrative judge was biased.
¶14           On review, the appellant asserts that the administrative judge was biased in
      favor of the agency. PFR File, Tab 1 at 7. The appellant has not set forth any
      evidence or argument to overcome the presumption of honesty and integrity that
      accompanies      administrative   adjudicators.    Fox    v.   Department   of   the
      Army, 120 M.S.P.R. 529, ¶ 46 (2014). We therefore find that the appellant has
      not shown bias. We also have considered the appellant’s remaining arguments.
      However, we find that they do not present a basis for disturbing the
      administrative judge’s initial decision.

                       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 further review of this final decision.

      Discrimination Claims: Administrative Review
              You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                 Office of Federal Operations
                          Equal Employment Opportunity Commission
                                       P.O. Box 77960
                                  Washington, D.C. 20013
                                                                                   10

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                      11

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                      ______________________________
                                    William D. Spencer
                                    Clerk of the Board
Washington, D.C.
