                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARY REID,                                      DOCKET NUMBER
                         Appellant,                  CH-0752-14-0849-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: April 5, 2016
                 Agency.



               THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Bobby Devadoss, Esquire, and Stephanie Bernstein, Esquire, Dallas, Texas,
             for the appellant.

           Loren H. Duffy, Esquire, Scott Air Force Base, Illinois, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review and the agency has filed a cross
     petition for review of the initial decision, which affirmed the agency’s removal
     action.   Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the 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. 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 DENY the
     petition for review and the cross petition for review. We AFFIRM the initial
     decision.
¶2         Effective September 19, 2014, the agency removed the appellant from her
     GS‑13 Supervisory Air Transportation Specialist position based on a single
     charge of inappropriate conduct and behavior unbecoming of a Federal
     supervisor. Initial Appeal File (IAF), Tab 5, Part A at 8‑9, 19‑20. The agency’s
     charge contained seven specifications, (a) through (g), alleging that the appellant
     made inappropriate comments of a sexual or sex‑based nature and touched an
     employee inappropriately on various occasions between October 2011 and
     April 2014. IAF, Tab 5, Part D at 24, Tab 7 at 6.
¶3         The appellant filed an appeal with the Board regarding the removal action.
     IAF, Tab 1. She argued that she did not commit any of the misconduct alleged
     and that her removal did not promote the efficiency of the service. Id. at 6. She
     also alleged that the agency violated her due process rights by failing to give her
     all of the information it relied upon in reaching its decision. IAF, Tab 18 at 1,
     Tab 21 at 2. She requested a hearing, but subsequently withdrew that request.
     IAF, Tab 1 at 2, Tab 17.
¶4         The administrative judge issued an initial decision, based on the written
     record, affirming the removal action. IAF, Tab 27, Initial Decision (ID). She
     found that the agency proved specifications (a), (b), (f), and (g) by preponderant
                                                                                          3

     evidence and that, therefore, its charge could be sustained. ID at 4‑7, 12‑15.
     She did not sustain specifications (c), (d), and (e). ID at 8‑12. She found that the
     agency established a nexus between the sustained misconduct and the appellant’s
     duties and that the penalty of removal was reasonable. ID at 15‑16, 18‑20. She
     also found that no due process violation or harmful error occurred. ID at 16‑17.
¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.    She argues that the administrative judge erred in sustaining
     specifications (a), (b), (f), and (g) and that, therefore, the penalty of removal
     should be reversed or mitigated. 2 Id. The agency filed a response in opposition
     to the petition for review, to which the appellant did not reply. PFR File, Tab 3
     at 6‑15.   The agency also filed a cross petition for review, arguing that the
     administrative judge should have sustained specification (d) of the charge. Id.
     at 4‑6. The appellant did not respond to the agency’s cross petition.
     The agency proved its charge by preponderant evidence.
¶6         The administrative judge sustained specifications (a), (b), (f), and (g) and
     thus found that the agency proved its charge by preponderant evidence.             See
     Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990)
     (holding that 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


     2
       The appellant also contends that statements the agency collected as part of its
     investigation of her alleged misconduct, IAF, Tab 5, were improperly obtained because
     she was not permitted to have an attorney present during her interview, whereas her
     accusers were allowed to have attorneys present, in violation of agency guidance,
     PFR File, Tab 1 at 17. She argues that, because of these violations, the administrative
     judge should not have relied upon these statements. Id. Although the appellant raised
     this argument before the agency, IAF, Tab 5, Part B at 7, she did not object to the
     admission of this evidence before the administrative judge. She thus is precluded from
     raising this objection now. See Hill v. Department of Health & Human Services,
     28 M.S.P.R. 91, 92‑93 (1985) (finding that the appellant’s failure to object to the
     admission of allegedly irrelevant evidence below precluded her from doing so on
     review).
                                                                                          4

     sufficient to sustain the charge). For the reasons set forth below, we agree with
     her findings. 3
              Specification (a)
¶7            Specification (a) alleged that in February 2012, the appellant approached an
     employee, R.W., who was bent over in a cubicle, touched her buttocks and said,
     “Gross, you don’t have panties on.” IAF, Tab 5, Part D at 24. R.W. declared
     under penalty of perjury that, while she was bent over helping another employee,
     K.S., in K.S.’ cubicle, the appellant approached her from behind, rubbed her
     buttocks, and said, “Gross you don’t have any panties on.” IAF, Tab 5, Part G
     at 11.     K.S. declared under penalty of perjury that she witnessed the incident
     when it occurred in her cubicle. Id. at 22.
¶8            Before filing the instant appeal, the appellant declared under penalty of
     perjury that she did not “really recall” this incident but that she “may have
     slapped [R.W.] on the rear end.” IAF, Tab 5, Part H at 4. She stated that she
     “may have said” to R.W., “You don’t wear underwear,” because it is common
     knowledge that R.W. does not wear underwear. Id.; see IAF, Tab 5, Part B at 24
     (the appellant admitting that during her interview with a criminal investigator,
     she stated, “I probably did say gross, no panties.”). She also “admit[ted] it is
     possible” that she touched R.W.’s buttocks in February 2012. Id. at 21. Yet, in
     affidavits created after she filed the instant Board appeal, she claimed that this
     incident “never took place” and “den[ied] ever saying such a vulgar,
     unprofessional comment.” IAF, Tab 23 at 17, Tab 25 at 6. She also stated that if
     she did touch R.W.’s buttocks, “it was a knee jerk reaction to move her out of the
     way.” IAF, Tab 23 at 17.
¶9            Presented with an issue of credibility as to whether the February 2012
     incident occurred as alleged, the administrative judge concluded that R.W. and


     3
       Neither party challenges the administrative judge’s findings as to specifications (c)
     and (e), and so we will not disturb them.
                                                                                             5

      K.S. were more credible than was the appellant. ID at 5‑6. She considered that
      the appellant’s statement submitted in support of her Board appeal was
      inconsistent with her previous statements wherein she did not expressly deny the
      misconduct and admitted that it may have occurred in some form. 4 ID at 6. She
      also found that R.W. and K.S. were disinterested witnesses and was not persuaded
      by the appellant’s claim that they were biased against her, possibly based on
      money or jealousy. Id.
¶10         On review, the appellant challenges the administrative judge’s credibility
      finding. She argues that the administrative judge did not give proper weight to a
      large number of affidavits from employees stating that they did not witness this
      incident and do not believe the appellant would engage in such conduct.
      PFR File, Tab 1 at 9‑11. We disagree. The appellant did present affidavits from
      several current and former agency employees who are of the opinion that she
      would not engage in inappropriate conduct. IAF, Tab 23 at 23‑50. 5 However,
      the appellant herself has admitted to engaging in inappropriate conduct similar to
      that alleged in this specification. See, e.g., IAF, Tab 5, Part B at 21 (“In the past,
      all the girls in the office would tap/slap each other on the buttocks.”), 22
      (admitting to showing R.W. and another employee the results of her breast
      reconstruction surgery and stating that she “should not have done this” and
      regrets doing so), Part H at 4 (“I may have given a pat on the butt, but that was
      just office horse play. . . . The girls in the office always play around.”), 7

      4
        In making her credibility findings, the administrative judge improperly considered the
      appellant’s testimony to be self-serving. ID at 6. Although it was error to reject the
      appellant’s testimony for this reason, the administrative judge’s credibility findings
      were otherwise consistent with Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
      (1987) (listing those factors to be considered in making credibility determinations), and
      therefore are sustained for the reasons discussed below. See Doe v. U.S. Postal Service,
      95 M.S.P.R. 493, ¶ 10 (2004) (sustaining credibility findings under similar
      circumstances).
      5
        The appellant does not cite to the record or identify by name the witnesses to whom
      she is referring. Thus, we can only assume she is referring to these witness statements.
                                                                                            6

      (“[R.W.] would talk about things that would not be appropriate for the office and
      we all got wrapped up in it”), 8 (the appellant stating that R.W. skinny dipped at
      the appellant’s house “with all the girls”). Thus, the appellant’s witnesses’ belief
      that she would never engage in such conduct is in conflict with the appellant’s
      own statements.       We therefore discern no basis to conclude that the
      administrative judge should have given their statements more weight. See Hillen
      v. Department of the Army, 35 M.S.P.R. 453, 460 (1987) (contradictory evidence
      is a factor to be considered in assessing witness credibility).
¶11         The appellant also argues that the administrative judge improperly ignored
      the statement of a criminal investigator, S.T., who questioned R.W.’s credibility
      based on his observation of her while investigating the matter as a sexual assault.
      PFR File, Tab 1 at 10; IAF, Tab 5, Part I at 10.          Again, we disagree.      The
      administrative judge did not accord S.T.’s statement any weight because it is
      unsigned. 6   ID at 10.      The appellant has not shown any error with this
      determination and we discern no basis to disturb it. S.T.’s unsigned statement is
      not entitled to more weight than R.W.’s and K.S.’ sworn statements. See Social
      Security Administration v. Whittlesey, 59 M.S.P.R. 684, 692 (1993) (explaining
      that a sworn statement carries greater weight than one that is unsworn), aff’d,
      39 F.3d 1197 (Fed. Cir. 1994) (Table). Further, S.T.’s statement is not specific to
      the February 2012 incident and expresses no opinion as to whether that particular
      incident occurred.

      6
        The administrative judge stated that she could not accord S.T.’s statement any weight
      because of this deficiency, ID at 10, which is not accurate. An agency investigator
      signed a statement swearing that S.T.’s statement was an accurate summary of S.T.’s
      testimony during the agency’s investigation. IAF, Tab 5, Part I at 10. Thus, the
      administrative judge should have analyzed the probative value of this hearsay evidence.
      See generally Borninkhof v. Department of Justice, 5 M.S.P.R. 77 (1981). We discern
      no harm, however, because we find that S.T.’s statement does not outweigh the other
      evidence upon which the administrative judge relied. See Panter v. Department of the
      Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
      prejudicial to a party’s substantive rights provides no basis for reversal of an initial
      decision).
                                                                                           7

¶12         We also note that another agency employee, S.S., declared under penalty of
      perjury that while riding in a car with R.W. and K.S. sometime in Spring 2012, he
      heard them discuss that the appellant had recently groped R.W.’s rear end while
      they were in K.S.’ cubicle. IAF, Tab 5, Part H at 23; see Wright v. Department of
      Transportation, 24 M.S.P.R. 550, 553 (1984) (finding the appellant’s recollection
      of events to be more credible because it was based on his contemporaneous notes
      as to what occurred).     Also, in July 2012, R.W. sent an email to a coworker
      stating that her supervisor had “rubbed on [her] butt one day” and “said she
      doesn’t have any underwear one [sic].”        IAF, Tab 5, Part J at 25; see Wright,
      24 M.S.P.R. at 553. Most importantly, although the appellant now vehemently
      denies this misconduct, she twice stated that she could not recall whether it
      occurred and conceded that it may have occurred.            Even when denying the
      misconduct, though, she left open the possibility that she may have touched
      R.W.’s buttocks as a “knee jerk reaction.” Based on the foregoing, we agree with
      the administrative judge that the agency proved this specification by preponderant
      evidence.
            Specification (b)
¶13         Specification (b) alleged that the appellant touched R.W.’s buttocks in
      July 2012. IAF, Tab 5, Part D at 24, Tab 7 at 6. R.W. declared under penalty of
      perjury that this incident occurred. 7    IAF, Tab 5, Part G at 11.      Her claim is
      corroborated by an email she sent to a coworker on July 24, 2012, wherein she
      reported that her supervisor had “smacked [her] on [her] butt” in front of one of
      the contractors that morning.        IAF, Tab 5, Part J at 25.         Based on the
      aforementioned evidence, and a finding that the appellant admitted to sometimes
      touching R.W.’s buttocks over at least a 2‑year period, the administrative judge
      sustained this specification. ID at 7.

      7
       R.W. stated that this incident occurred on July 24, 2013. IAF, Tab 5, Part G at 11.
      We agree with the administrative judge that, based on R.W.’s contemporaneous email
      documenting the incident, she clearly meant that it occurred on July 24, 2012. ID at 7.
                                                                                          8

¶14           The appellant argues that the administrative judge erred in sustaining this
      specification because she relied primarily on her finding that the appellant
      admitted to sometimes touching R.W.’s buttocks over at least a 2‑year period,
      which was based on a misinterpretation of one of the appellant’s statements. PFR
      File, Tab 1 at 11‑12.       Specifically, the administrative judge relied on the
      following statement: “One wonders why an active participant would wait two
      years to complain or why they simply didn’t just say they no longer wanted their
      buttocks touched. It would have stopped there.” IAF, Tab 5, Part B at 22; ID
      at 7.
¶15           Through her counsel, the appellant claims that this statement was not an
      admission, but rather, that she was simply raising a question as to R.W.’s
      credibility. PFR File, Tab 1 at 12. However, we need not rely on the appellant’s
      counsel’s interpretation of her statement, as the statements of a party’s
      representative in a pleading do not constitute evidence.           See Hendricks v.
      Department of the Navy, 69 M.S.P.R. 163, 168 (1995). Even if the administrative
      judge misinterpreted the particular statement at issue, we discern no harm
      because, as discussed at length above, the appellant has clearly admitted to
      engaging in such behavior as part of so‑called office horseplay. See Panter v.
      Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). Further, we find that
      R.W.’s account of this incident, bolstered by her contemporaneous record of it,
      constitutes preponderant evidence sufficient to prove this specification.         See
      Wright, 24 M.S.P.R. at 553.
¶16           The appellant claims that, even if she did engage in this behavior, it did not
      constitute sexual harassment because such conduct commonly occurred in her
      office environment and was not unwelcome.            PFR File, Tab 1 at 11.      This
      argument is wholly irrelevant to whether the agency proved this specification
      because the appellant was not charged with sexual harassment. See Morrison v.
      National Aeronautics & Space Administration, 65 M.S.P.R. 348, 356‑57 (1994).
                                                                                       9

      Based on the above, we agree with the administrative judge that the agency
      proved this specification.
            Specification (f)
¶17         Specification (f) alleged that in October 2011, the appellant told an
      employee, J.S., that her breasts were too small to produce milk and asked her if
      she produced chocolate milk. IAF, Tab 5, Part D at 24, Tab 7 at 6. J.S. declared
      under penalty of perjury that when she returned to work in October 2011, after
      giving birth, she was on her way to the lactation room and the appellant stated to
      her in front of R.W. that her breasts were too small to produce milk. IAF, Tab 5,
      Part G at 19.    J.S. then explained to the appellant that breast size does not
      determine the amount of milk that a woman can produce. Id. The appellant then
      asked J.S. whether she produced chocolate milk. Id. The appellant apparently
      was alluding to J.S.’ skin color, as J.S. then had to explain to her that a woman’s
      skin color does not affect the type of milk she produces. Id.
¶18         R.W. corroborated J.S.’ claims. She stated under penalty of perjury that in
      the fall of 2011, while J.S. was heading to the lactation room, the appellant asked
      J.S. how she could breastfeed with small breasts. Id. at 12. R.W. then explained
      to the appellant that a woman’s breast size does not affect her ability to produce
      milk for her baby, and the appellant thereafter asked J.S. whether she produced
      chocolate milk. Id. The appellant conceded that she participated in a discussion
      regarding lactation with “a group of ladies” at work, including R.W., but denied
      making the aforementioned statements. IAF, Tab 5, Part H at 6, Tab 24 at 3.
¶19         The administrative judge credited J.S.’ claims over the appellant’s denials.
      ID at 12‑13.    She noted that R.W. corroborated J.S.’ allegations and that the
      appellant failed to establish any reason why R.W. would be motivated to lie about
      witnessing this event as J.S. described. ID at 12‑13.
¶20         The appellant challenges this credibility finding on review. She argues that
      J.S. was biased against her because she was partially responsible for J.S.’
                                                                                     10

      removal. PFR File, Tab 1 at 12‑13. However, even if J.S. were biased against
      her, the fact remains that R.W. witnessed the incident and supports J.S.’ claim.
      The appellant suggests that R.W. also is biased against her, but we are not
      persuaded by that claim. As evidence of bias, the appellant expresses her belief
      that R.W., K.S. and another employee, S.M., “corroborated stories and filed
      [equal employment opportunity (EEO)] complaints, each resulting in a substantial
      settlement.” Id. at 12. The appellant does not explain why any actions R.W. took
      with respect to complaints K.S. and S.M. may have filed have any bearing on her
      account of the incident that occurred between J.S. and the appellant. She also has
      not explained why R.W.’s filing of an EEO complaint would motivate her to lie
      about something that happened to J.S.         We further find it significant that,
      although the appellant now denies making the statement regarding J.S.’ breast
      size and ability to produce milk, she previously stated that she could “neither
      deny nor confirm” whether she made that statement. IAF, Tab 5, Part C at 17; see
      Hillen, 35 M.S.P.R. at 459 (determining that a prior inconsistent statement raises
      doubt as to its truthfulness).   Accordingly, we discern no basis to disturb the
      administrative judge’s credibility finding.      As a result, we agree with the
      administrative judge’s decision to sustain specification (f).
            Specification (g)
¶21         Specification (g) alleged that in or around March 2014, while S.S. was
      introducing her to a new team member, the appellant stated that she runs the “hot
      and horny hen house.” IAF, Tab 5, Part D at 24. On the one hand, the appellant
      denied making this statement, but stated that her office branch was often referred
      to as the “Hormonal Hen House.” IAF, Tab 24 at 3. On the other hand, S.S.
      declared under penalty of perjury that the appellant made this statement. IAF,
      Tab 5, Part H at 23. The appellant also submitted an unsworn statement from S.S.
      wherein he again confirmed that she made this statement. IAF, Tab 23 at 44. The
                                                                                             11

      administrative judge credited S.S.’ account over the appellant’s. 8 ID at 13. She
      noted S.S.’ consistency in affirming that the appellant made this remark. 9 Id.
      Further, she noted that the appellant apparently did not consider S.S. to be biased
      against her, given that she proffered a statement she gathered from him as
      evidence in support of her appeal. Id.
¶22         On review, the appellant contends that she made a reference to the
      “hormonal hen house,” not the “hot and horny hen house,” and surmises that S.S.
      “must have misheard her” because these two statements “may have sounded
      similar.” PFR File, Tab 1 at 13‑14. The appellant raised this argument below
      and the administrative judge apparently did not find it persuasive.             ID at 13
      (citing IAF, Tab 24 at 3). Her mere disagreement with the administrative judge’s
      resolution of this factual dispute provides no basis for review. See Broughton v.
      Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987). In any
      event, we find it inherently improbable that one could mistake the word
      “hormonal” for the words “hot and horny.” See Hillen, 35 M.S.P.R. at 461 (the
      likelihood of an event occurring in the manner described is a factor to be
      considered in assessing credibility). Therefore, we find that the administrative
      judge correctly sustained specification (g).
      The penalty of removal was reasonable.
¶23         Where, as here, the agency’s charge has been sustained, the Board will
      review an agency‑imposed penalty only to determine if the agency considered all

      8
        The administrative judge also considered the appellant’s self‑interest in denying the
      allegation. ID at 13. As discussed above, we find that this error does not detract from
      the administrative judge’s otherwise well‑founded credibility determinations. See
      supra ¶ 9 n.4.
      9
        The administrative judge stated that S.S. reaffirmed his recollection of this incident
      three times. ID at 13. However, it appears that she relied twice on the same April 2015
      unsworn statement, which appears more than once in the record. Compare IAF, Tab 23
      at 43‑44, with IAF, Tab 24 at 28‑29. Even if S.S. only confirmed twice, as opposed to
      three times, that this incident occurred, it would not warrant a different outcome in this
      appeal. See Panter, 22 M.S.P.R. at 282.
                                                                                            12

      of the relevant factors and exercised management discretion within tolerable
      limits       of     reasonableness. 10          Archerda    v.       Department        of
      Defense, 121 M.S.P.R. 314, ¶ 25 (2014).         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.       Id. 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
      penalty selected by the agency 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.
¶24            The administrative judge affirmed the agency’s removal action, finding that
      the agency considered the appropriate factors under Douglas v. Veterans
      Administration, 5 M.S.P.R. 280, 305‑06 (1981), and that the penalty of removal
      was reasonable. ID at 18‑20. As she observed, the deciding official considered
      the appellant’s lengthy Federal service and her past work record. IAF, Tab 5,
      Part A at 11, 17, 19. However, he also considered that: (1) the nature of the
      charged misconduct was serious; (2) the appellant was a supervisor and, thus,
      held to a higher standard of conduct, see Bowman v. Small Business
      Administration, 122 M.S.P.R. 217, ¶ 12 (2015); (3) the appellant was on notice,
      based on training she received, that such conduct was not acceptable; (4) the
      appellant’s misconduct negatively affected the work environment and caused
      agency management to lose trust and confidence in her ability to treat employees
      appropriately;      and   (5) the   appellant   demonstrated     little   potential   for
      rehabilitation, given her failure to take responsibility for her misconduct and her

      10
         The appellant does not dispute, and we will not disturb, the administrative judge’s
      finding that there is a nexus between the sustained misconduct and her job duties. ID
      at 15-16.
                                                                                         13

      assertion that the inappropriate conduct to which she did admit was merely
      normal office horseplay. IAF, Tab 5, Part A at 10, 12, 14, 19‑20.
¶25        The appellant argues that the penalty of removal is unreasonable and should
      be mitigated because: (1) she had 31 years of Federal service with no history of
      discipline; and (2) three of the agency’s specifications were not sustained. 11
      PFR File, Tab 1 at 14‑16. We are not persuaded by these arguments and will not
      disturb the agency’s penalty determination.           The agency considered the
      appellant’s length of service and work history, but found that those factors did
      not outweigh the aggravating factors it also considered.               We find that
      determination reasonable. Further, although some of the agency’s specifications
      have not been sustained, the sustained misconduct is extremely serious.           The
      Board has upheld the penalty of removal in similar cases involving a supervisor
      engaging in inappropriate behavior of a sexual nature, including touching. See
      Batten v. U.S. Postal Service, 101 M.S.P.R. 222, ¶ 14 (stating that “[t]he Board
      has held that removal is a proper penalty when a supervisor makes inappropriate
      comments    of   a   sexual   nature   to   co-workers”),   aff’d,   208 F. App’x 868
      (Fed. Cir. 2006); Luongo v. Department of Justice, 95 M.S.P.R. 643, ¶¶ 2‑3,
      13-16 (2004).    Accordingly, we agree with the administrative judge that the
      penalty of removal is within the bounds of reasonableness.
      The agency has not established a basis for review.
¶26        The agency has filed a cross petition for review, arguing that the
      administrative judge erred in failing to sustain specification (d). PFR File, Tab 3
      at 4‑6. Based upon specifications (a), (b), (f), and (g), the administrative judge
      found that the agency proved its charge by preponderant evidence and affirmed
      the agency’s removal action.     ID at 13‑16, 18‑20.        As previously stated, we
      11
         She also argues that the penalty of removal should be reversed because the agency
      failed to prove its charge by preponderant evidence. PFR File, Tab 1 at 6‑7. We reject
      this argument based on our finding that the agency indeed proved its charge by
      preponderant evidence.
                                                                                 14

discern no basis to disturb her decision. We therefore deny the agency’s cross
petition for review.

                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 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
                                                                               15

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.
