                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NAJUAN DAVIS-COLEMAN,                           DOCKET NUMBER
                  Appellant,                         DE-0752-13-0783-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: June 11, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Keith E. Kendall, Esquire, Carlisle, Pennsylvania, for the appellant.

           Dora Malykin, Washington, D.C., for the agency.

           Kirk Bateman, Ft. Collins, Colorado, 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 her removal for improper conduct. 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                                       BACKGROUND
¶2         The agency removed the appellant from her Veterinary Medical Officer
     position based on the charge of improper conduct with two specifications:
     providing inaccurate information regarding inspection activities and reporting
     inaccurate information on her timesheets.         Initial Appeal File (IAF), Tab 7
     at 12-18 (decision letter), Tab 8 at 4-13 (proposal notice). The agency’s deciding
     official found that the appellant had engaged in a pattern of providing inaccurate
     reports of her inspection activities and failing to notify licensees/registrants of
     her findings. IAF, Tab 7 at 12-13. The deciding official noted that the appellant
     acknowledged misreporting her travel time on January 28, 2013, which she
     attributed to a delay in departure due to a family medical issue. Id. at 13. The
     deciding official conducted a written analysis of the Douglas 2 factors in assessing
     the appropriate penalty and found that removal was reasonable given, among


     2
       In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
     presented a nonexhuastive list of twelve relevant factors in determining a penalty for an
     act of misconduct.
                                                                                               3

     other things, the seriousness of the offense, the consistency of the penalty with
     that imposed on other employees for similar offenses, the detrimental impact to
     public confidence in the agency’s inspection reports, and violation of the trust of
     the regulated community and the public. Id. at 19-21.
¶3           The appellant appealed the removal, arguing that the agency could not meet
     its burden of proof supporting the removal and that the decision to remove her
     was not in accordance with law. IAF, Tab 1 at 6. She argued that the removal
     penalty was too severe given unspecified mitigating circumstances in her case.
     Id. She also claimed the affirmative defense of harmful procedural error, arguing
     that the agency had erred in treating her “performance problems as ‘misconduct.’”
     IAF, Tab 28 at 6, Tab 31 at 1.           Although the appellant did not contest the
     administrative judge’s order and summary of the telephonic prehearing
     conference finding only one alleged affirmative defense, see IAF, Tab 31 at 1, she
     argued during the hearing that the agency had retaliated against her for requesting
     a reasonable accommodation for a disability relating to her status as caregiver for
     her mother, Hearing Compact Disc (HCD). 3              In her deposition prior to the
     hearing, 4 the appellant testified that she “made some mistakes,” but asserted that
     none were deliberately done to hurt the government, and thus removal was an
     unreasonable penalty. IAF, Tab 45 at 30.
¶4           After holding the requested hearing, the administrative judge affirmed the
     removal action. IAF, Tab 50, Initial Decision (ID). Noting that proof of one
     specification supporting a charge may suffice to sustain it, the administrative
     judge focused on the allegations that the appellant provided inaccurate inspection
     reports on September 27, 2012, and December 14, 2012, because the deciding


     3
       In her initial appeal, the appellant generally alleged that the agency committed a
     prohibited personnel practice by removing her in retaliation for protected activity under
     5 U.S.C. § 2302(b)(1), but did not identify the alleged protected activity. See IAF,
     Tab 1 at 6.
     4
         The agency submitted a complete deposition transcript in its prehearing submission.
                                                                                       4

     official testified that this alleged misconduct was his primary focus. ID at 5. In
     her notice of proposed removal, the appellant’s supervisor alleged that she issued
     an inspection report on these two occasions without first conducting the required
     inspection. IAF, Tab 8 at 5. The supervisor found that the appellant did not visit
     the first facility in question and issued a report in the second instance after
     merely speaking to the facility director via telephone and not conducting an
     investigation of his report. Id. The administrative judge sustained the improper
     conduct charge, finding that the agency proved the specification of submitting
     inaccurate inspection reports by preponderant evidence.         ID at 4-11.     The
     administrative judge found that the agency proved a nexus between the
     misconduct and the efficiency of the service, and that the penalty of removal was
     reasonable because the record showed that the agency weighed the relevant
     factors and exercised management discretion within tolerable limits of
     reasonableness. ID at 11-14. Finally, the administrative judge found that the
     appellant failed to prove her affirmative defenses of reprisal for requesting a
     reasonable accommodation for a disability and harmful error. ID at 14-18.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        On review, the appellant argues that the agency’s application of its Guide
     for Disciplinary Penalties, which grants the agency “unfettered and purely
     subjective discretion,” constituted harmful error. Petition for Review (PFR) File,
     Tab 3 at 6. She argues that the agency’s misapplication of the Douglas factors
     was a decision not in accordance with law under 5 U.S.C. § 7702(c)(2)(C),
     because the deciding official identified four mitigating factors but allegedly
     implied that he only considered a single mitigating factor at the penalty phase by
     using the singular term “that factor.” Id. at 6-7, 10-22. The appellant asserts that
     the agency and the administrative judge did not consider the inadequate 3-day
     training provided by the agency when she started in September 2010, which
                                                                                         5

     included only 2.5 hours of training concerning inspections and reports, and argues
     that her mistake was therefore the “equivalent of excusable neglect.” Id. at 7-9.
¶6         The agency responds that the appellant failed to show that the initial
     decision contains erroneous findings of material fact or conclusions based on
     erroneous interpretation of a statute or regulation. PFR File, Tab 6 at 9-21. The
     agency argues that the administrative judge gave appropriate weight to the
     deciding official’s testimony that he considered the relevant Douglas factors, and
     correctly found the removal penalty within the reasonable bounds of management
     discretion. Id. at 11-16. Moreover, the agency argues that the appellant did not
     raise her training argument below and that, even if it were properly before the
     Board on review, the record evidence demonstrates that this argument does not
     provide a basis for reversing the initial decision. Id. at 21-22.
¶7         The administrative judge properly sustained the charge of improper
     conduct. On review, the appellant does not deny that she submitted inaccurate
     inspection reports and she does not contest the administrative judge’s findings on
     this issue. See PFR File, Tab 3. Rather, she asserts that her inaccurate reports
     should be “characterized as no more than excusable neglect” and do not justify
     her removal.    Id. at 11.   The appellant does not appear to challenge, and we
     discern no reason to disturb, the administrative judge’s finding on nexus. See
     PFR File, Tab 3; see also ID at 11-12.
¶8         We    find   unpersuasive     the   appellant’s   arguments   regarding   the
     reasonableness of the penalty and the alleged incorrect and unlawful weighing of
     the Douglas factors by the deciding official. PFR File, Tab 3 at 7-9. 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 she considered the evidence as a whole,
     drew appropriate inferences, and made reasoned conclusions); see also Broughton
     v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
                                                                                       6

     Where the sole agency charge is sustained, the Board will review the
     agency-imposed penalty only to determine whether the agency considered the
     relevant Douglas factors and exercised management discretion within the
     tolerable limits of reasonableness.       See Ellis v. Department of Defense,
     114 M.S.P.R. 407, ¶ 11 (2010).
¶9        The administrative judge found the deciding official’s testimony concerning
     his thorough analysis of the Douglas factors persuasive, and the appellant has not
     presented sufficiently sound reasons on review to overturn the administrative
     judge’s findings concerning the reasonableness of the penalty.       See Haebe v.
     Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the Board must
     defer to an administrative judge’s credibility determinations when they are based,
     explicitly or implicitly, on the direct observation of the witnesses’ demeanor). As
     noted in the initial decision, the deciding official testified that the appellant’s
     high level of unsupervised contact with the public and his inability to trust her
     after the misconduct weighed heavily in his decision to remove her. ID at 14. On
     review, the appellant argues that the deciding official considered only the
     mitigating factor of her mother’s illness, despite his written findings and
     testimony to the contrary. PFR File, Tab 3 at 6-7; IAF, Tab 7 at 12-21; see HCD.
     We disagree. In his letter of decision, the deciding official specifically noted the
     mitigating factors of the appellant’s length of federal service, lack of prior
     discipline, satisfactory approval ratings, and the “major mitigating factor” of her
     mother’s health, but found that the misconduct was severe enough to warrant
     removal. IAF, Tab 7 at 15. In addition, the record demonstrates that the deciding
     official considered and specifically addressed each of the twelve Douglas factors
     prior to the removal decision. Id. at 19-21. We have considered the appellant’s
     arguments regarding the penalty analysis but conclude that they constitute mere
     disagreement with the administrative judge’s findings based on the hearing
     testimony and the written record. See PFR File, Tab 3 at 10-22. Although the
     appellant argues for the first time on review that she received inadequate training
                                                                                             7

      when she started her position in 2010, she has neither established a reason for the
      Board to consider this new argument, see 5 C.F.R. § 1201.115(d), nor alleged
      facts supporting a finding that her alleged lack of training contributed to her
      improper conduct, see PFR File, Tab 3 at 7-9; see also IAF, Tab 8 at 18-20.
¶10         The appellant does not contest the administrative judge’s finding that she
      failed to prove her affirmative defense of reprisal for requesting a reasonable
      accommodation for a disability, and we see no reason to disturb this finding. See
      PFR File, Tab 3. Although discussed in the context of the Douglas factors, the
      appellant repeats her assertion that her alleged misconduct was actually akin to
      performance issues. Id. at 9. She does not directly challenge the administrative
      judge’s finding that the agency’s treatment of her actions as misconduct, rather
      than as performance-based, did not constitute harmful procedural error, and she
      merely repeats the assertion made during hearing testimony.           Id.; see HCD.
      Moreover, her bare assertion fails to support any argument of harmful procedural
      error. As a result, we find no reason to disturb the initial decision on this point.
¶11         On review, the appellant also raises a new harmful error argument, alleging
      that the agency’s Guide for Disciplinary Penalties gives the agency “unfettered
      discretion to remove an employee for all acts of alleged misconduct except for the
      most innocuous.” PFR File, Tab 3 at 16. She argues that such discretion violates
      her right to adequate notice of the offense to which she was charged and the
      potential penalty for the violation. Id. The Board generally will not consider an
      argument raised for the first time on review absent a showing that it is based on
      new and material evidence not previously available despite the party’s due
      diligence.   See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
      (1980); see also 5 C.F.R § 1201.115(d). The appellant has not shown that she
      was unable to raise this argument below.
¶12         Even if the appellant had raised this argument below, it does not warrant a
      different outcome. In contrast to the appellant’s argument that the penalty guide
      is itself in error because it gives unfettered discretion to the agency, see PFR File,
                                                                                   8

Tab 3 at 16, the agency must prove that the removal promotes the efficiency of
the service, including that it properly exercised its discretion in imposing a
reasonable penalty, see 5 U.S.C. § 7513(a); see also Ellis, 114 M.S.P.R. 407,
¶¶ 8, 11. Further, the appellant mischaracterizes the penalty guide in stating that
it directs “other (non-disciplinary) action should be taken” for unintentional false
statements or incorrect official documents. PFR File, Tab 3 at 16-17. The record
shows that the cited guidance pertains to unintentionally inaccurate entries on an
application for employment or personal history record. Id.; IAF, Tab 13 at 50. In
contrast, the guide states that the penalty for a first offense of misrepresentation
or falsification of documents in connection with an official matter ranges from a
letter of reprimand to removal.     IAF, Tab 13 at 51.      Thus, we find that the
deciding official consistently applied the penalty guide when upholding the
appellant’s removal for intentionally submitting inaccurate inspection reports. 5
To the extent that the appellant alleges a due process violation, we note that the
record evidence shows that she substantively responded in writing to the notice of
proposed removal, and that both she and her supervisor testified to their in-person
meetings regarding the misconduct and subsequent agency action. IAF, Tab 7
at 24-29; see HCD. Thus, the record indicates that the appellant had a meaningful
opportunity to respond to the proposed removal and she was not denied due
process. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546
(1985) (the process due a tenured public employee prior to removal includes oral
or written notice of the charge against her, an explanation of the employer’s
evidence, and an opportunity to present her side of the story).

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
     You have the right to request further review of this final decision.


5
  The administrative judge found that the record proved by preponderant evidence that
the appellant’s actions and false inspection reports were intentional. ID at 6-11.
                                                                                    9

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

      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,
                                                                             10

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
prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




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