                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BRYAN PIPES,                                    DOCKET NUMBER
                         Appellant,                  DE-0752-16-0111-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: December 9, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Marshall Heath, Junction City, Kansas, for the appellant.

           Eric L. Carter, Esquire, Fort Riley, Kansas, 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
     sustained his 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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).

                                      BACKGROUND
¶2        The appellant was employed as an industrial equipment mechanic. Initial
     Appeal File (IAF), Tab 13 at 27. The agency proposed his removal based upon
     one charge of failure to follow instructions supported by three specifications and
     one charge of absence without leave (AWOL) supported by five specifications.
     IAF, Tab 15 at 6-9. The appellant replied to the proposal. IAF, Tab 13 at 38-39.
     The agency sustained the charges and imposed the removal. Id. at 34-37.
¶3        The appellant filed the instant appeal challenging his removal , and he and
     requested a hearing. IAF, Tab 1. The administrative judge determined that the
     appellant was asserting the following affirmative defenses: (1) harmful
     procedural error; (2) violations of the collective bargaining agreement (CBA);
     (3) violations of certain provisions of title 5; and (4) a violation of his due
     process rights in the form of ex parte communications.        IAF, Tab 19.    After
     holding the requested hearing, the administrative judge issued an initial decision
     sustaining the removal. IAF, Tab 28, Initial Decision (ID).
¶4        The appellant has filed a petition for review, the agency has responded, and
     the appellant has replied. Petition for Review (PFR) File, Tabs 1, 4 -5.
                                                                                            3

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶5         The appellant asserts that the administrative judge erred in sustaining his
     removal because the failure to follow instructions charge was in conflict with the
     CBA and the charges were required to be consistent with the CBA . 2 PFR File,
     Tab 1 at 2-3. He also asserts that the agency violated certain statutory provisions
     of title 5. Id. at 2.
¶6         The administrative judge characterized these arguments as a claim of
     harmful procedural error and found that the appellant failed to prove this
     affirmative defense. ID at 7-12. Specifically, he found that the appellant failed
     to cite to any requirement that disciplinary documents must cite the CBA or any
     other requirement that supersedes the other requirements that the agency applied
     in removing him. ID at 9. Additionally, he found that the removal action did not
     violate the CBA because, although the CBA states that sick leave will not be
     denied based solely on a failure to follow procedures, it also states that failure to
     provide the medical documentation as required may result in the absence being
     charged as AWOL. ID at 11; IAF, Tab 20 at 8. The administrative judge also
     found and, based upon our review of the record and the testimony of the
     proposing official, we agree, that the appellant was on leave restriction and failed
     to provide proper medical documentation when using his sick leave. ID at 4-7;
     Hearing Compact Disc; IAF, Tab 15 at 61-65.            The administrative judge also

     2
       The appellant has not challenged the administrative judge’s finding of nexus between
     the sustained charges and the efficiency of the service, and we find no reason to disturb
     it. ID at 13. Also, we note that the administrative judge improperly stated that the
     agency proved the charges as alternative charges, ID at 3-6, despite the fact that the
     charge of failure to follow instructions was supported by three specifications from
     different dates than the dates supporting the specifications of the AWOL charge, cf.
     Jenkins v. Department of the Treasury, 104 M.S.P.R. 345, ¶¶ 5-6 (discussing an
     alternative charge in the Board’s finding that the agency was not required to prove
     willfulness because the proposing official also stated that she was charging the
     appellant “in the alternative” even if she had not acted willfully), aff’d, 244 F. App’x
     349 (Fed. Cir. 2007). Any error in this respect is harmless and does not provide a basis
     for disturbing the initial decision. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
     106 (1997).
                                                                                           4

     found that the appellant did not establish that the agency violated 5 U.S.C.
     § 7103(a)(10) and (11), or 5 U.S.C. § 7116(a)(1), (7), and (8) because these
     provisions were inapplicable. 3       ID at 8.      Accordingly, we find that the
     aforementioned arguments fail to provide a basis for disturbing the initial
     decision.
¶7         The appellant additionally asserts that, as a bargaining unit employee,
     charges that are brought under the CBA must be resolved through the grievance
     process. PFR File Tab 1 at 2-3. To the extent that the appellant is attempting to
     challenge his election of a Board appeal, the agency provided him with a
     document entitled “redress rights” with the removal decision.            IAF, Tab 13
     at 29-33. That document informed him of his right to file, among other things, a
     Board appeal or a grievance, but not both. Id. The appellant timely filed the
     instant Board appeal, IAF, Tab 1, thus waiving his right to file a grievance, see
     Johnson v. Department of Veterans Affairs, 121 M.S.P.R. 695, ¶ 5 (2014), aff’d,
     611 F. App’x 496 (10th Cir. 2015).        Accordingly, he elected to file a Board
     appeal and is therefore incorrect that his removal should have been resolved
     through the grievance process.
¶8         Next, the appellant argues that the Board should not sustain his removal
     because he had a successful performance rating.         PFR File, Tab 1 at 3.       The
     administrative judge found, and we agree that, in chapter 75 actions such as this
     one, the Board considers an employee’s performance in its analysis of the
     Douglas 4 factors to determine the appropriate penalty and not in determining

     3
       As the administrative judge stated, section 7103(a)(10) and (11) of title 5 provide
     definitions for “supervisor” and “management official.” ID at 8. The administrative
     judge also properly stated that 5 U.S.C. § 7116(a)(1) prohibits interference with rights
     under the chapter, 5 U.S.C. § 7116(a)(7) prohibits actions in conflict with the CBA, and
     5 U.S.C. § 7116(a)(8) requires the agency to “otherwise” comply with the chapter. ID
     at 8.
     4
       In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
     articulated a nonexhaustive list of factors relevant to the penalty determination in
     adverse actions.
                                                                                    5

whether to sustain the charges. ID at 12. To the extent that the appellant is
attempting to challenge the reasonableness of the penalty, we agree with the
administrative judge’s decision to defer to the agency’s penalty determination . 5
ID at 13-15; see McNab v. Department of the Army, 121 M.S.P.R. 661, ¶¶ 11-15
(2014) (stating that, where all of the agency’s charges are 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 and sustaining
the appellant’s removal for failure to follow leave restriction letter procedures
and AWOL).

                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 United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
5
 To the extent that the appellant has cited the Board’s December 1, 2009 study, “Fair
and Equitable Treatment: Progress Made and Challenges Remaining,” we find that this
does not provide a basis for disturbing the initial decision. PFR File, Tab 1 at 2 -3.
                                                                                  6

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 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 fo r 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.
