                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES PACKARD,                                  DOCKET NUMBER
                  Appellant,                         SF-0752-16-0031-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: September 1, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           James Packard, Pahrump, Nevada, pro se.

           Karen D. Glasgow, Esquire, San Francisco, California, 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 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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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, 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 held the position of Heavy Mobile Equipment Mechanic.
     Initial Appeal File (IAF), Tab 3, Subtab 4. His position required that he “possess,
     or be able to obtain within a reasonable amount of time, a valid Class A state
     Commercial Driver’s License (CDL) with endorsements for air brakes and
     tankers.” Id., Subtab 4j at 6. Between November 2014 and February 2015, the
     appellant’s first-line supervisor instructed him on five separate occasions that he
     had to obtain the CDL.     Id., Subtab 4f at 1-2.   In April 2015, the supervisor
     advised the appellant of a CDL training class he could attend at his own expense
     and ordered him to obtain a CDL by May 28, 2015. IAF, Tab 3, Subtab 4f at 2,
     Subtab 4h. In May 2015, the supervisor warned the appellant that if he did not
     obtain a CDL before the deadline, he would be disciplined with an action up to a
     removal. IAF, Tab 3, Subtab 4f at 2. The appellant responded, “[D]o what you
     got to do.” IAF, Tab 3, Subtab 4e at 1, Subtab 4f at 2. He did not take the class
     or obtain a CDL by the May 2015 deadline. However, he obtained a commercial
     driver’s permit on June 16, 2015. IAF, Tab 3, Subtab 4e. Effective September
     11, 2015, the agency removed the appellant based on the following two charges:
                                                                                               3

     (1) refusal to meet a condition of employment; 2 and (2) insubordination. IAF,
     Tab 3, Subtab 4, Subtab 4c at 1-3.
¶3         The appellant appealed his removal to the Board and did not request a
     hearing.    IAF, Tab 1 at 1-6.         He disputed the agency’s charges and the
     reasonableness of the penalty and claimed age discrimination. IAF, Tab 1 at 5-6,
     Tab 8. Specifically, he argued that the agency denied him a reasonable amount of
     time to obtain a CDL and that he had been trying to obtain a CDL in good faith.
     IAF, Tab 1 at 5-6, Tab 8. He also alleged that, during the 1-month “ultimatum,”
     he had the additional stress of “handling the workload” of three positions. IAF,
     Tab 8. He further alleged that the agency denied him the “drive time” necessary
     to obtain driving experience for the CDL. Id. The administrative judge apprised
     the appellant of his burden of proving an affirmative defense of age
     discrimination and ordered him to submit evidence and argument in support of
     this claim. IAF, Tab 4 at 3-8.
¶4         In an initial decision based on the written record, the administrative judge
     affirmed the removal action. IAF, Tab 11, Initial Decision (ID) at 1, 10. She
     sustained both charges, found a nexus between the sustained misconduct and the
     efficiency of the service, found that the agency considered the relevant Douglas
     factors, 3 and found the penalty of removal to be within the tolerable limits of
     reasonableness. ID at 5-10. She also denied the appellant’s affirmative defense
     of age discrimination because she found that he did present any evidence of age
     discrimination and failed to respond to the affirmative defense order. 4 ID at 10;
     IAF, Tab 4 at 3, 7-8.

     2
       The agency interchangeably used the terms “failure” and “refusal” in describing its
     charge. IAF, Tab 3, Subtab 4, Subtab 4c at 1-2, Subtab 4f at 1.
     3
       In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
     articulated a nonexhaustive list of 12 factors that are relevant in assessing the penalty to
     be imposed for an act of misconduct.
     4
      The appellant alleges on review that he did not raise an age discrimination claim.
     Petition for Review File, Tab 1 at 6. We find that the administrative judge properly
                                                                                            4

¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response. PFR File, Tab 4.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The agency proved its charge of failure to meet a condition of employment.
¶6         In order to prove a charge of failure to meet a condition of employment, an
     agency must establish the following two elements: (1) the requirement at issue is
     a condition of employment; and (2) the appellant failed to meet that condition.
     Gallegos v. Department of the Air Force, 121 M.S.P.R. 349, ¶ 6 (2014). Absent
     evidence of bad faith or patent unfairness, the Board defers to the agency’s
     requirements that must be fulfilled for an individual to qualify for appointment to,
     or to retain, a particular position. Id.
¶7         The administrative judge found that the agency proved its charge of failure
     to meet a condition of employment. ID at 5-6. Specifically, she found that the
     appellant was required to obtain, or be able to obtain within a reasonable amount
     of time, a CDL as a condition of employment as a Heavy Mobile Equipment
     Mechanic. ID at 5; IAF, Tab 3, Subtab 4j at 6. She further found that, despite
     receiving over 6 months to obtain a CDL, the appellant failed to obtain it by the
     May 2015 deadline, or even by the time he received the notice of proposed
     removal in August 2015. ID at 5-6; IAF, Tab 3, Subtab 4f at 6, Subtab 4h at 1.
¶8         In his petition for review, the appellant does not challenge the
     administrative judge’s findings that obtaining a CDL was a condition of his
     employment and that he failed to obtain one. PFR File, Tab 1 at 4-6. However,

     decided this issue after it was raised by the appellant. IAF, Tab 1 at 6, Tab 3,
     Subtab 4e; see Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 10 (2010) (stating that,
     when an appellant alleges facts that reasonably raise an affirmative defense, the
     administrative judge must address the affirmative defense in any close of record order
     or prehearing conference summary and order). The administrative judge identified this
     issue during the close of record conference. IAF, Tab 7 at 2. In the resulting order, she
     again identified the appellant’s age discrimination claim and provided the parties with
     an opportunity to object to the order. Id. The appellant did not object regarding this
     issue. IAF, Tab 8.
                                                                                        5

      he reasserts that the agency denied him a reasonable amount of time to obtain a
      CDL.      Id. at 4.   Specifically, he alleges that he had the additional stress of
      performing the work of three positions during the relevant time period. Id. He
      also asserts that it was the agency’s standard procedure to provide a truck and a
      driver for an employee’s CDL training. Id. at 6. He further contends that he
      spent the time prior to the May 2015 deadline waiting to see whether his
      supervisor, who was a CDL instructor, could provide him with CDL training. Id.
¶9            We find that the appellant received a reasonable amount of time to obtain a
      CDL. The appellant does not dispute his supervisor’s statement that they first
      discussed his need to obtain a CDL in November 2014. IAF, Tab 3, Subtab 4f
      at 1.    Thus, the appellant had over 6 months, from November 2014 to the
      May 2015 deadline, to obtain a CDL.           The appellant provided no specific
      evidence to support his claim that the agency had a standard procedure of
      providing employees with CDL training, or that the agency, including his
      supervisor, had an obligation to provide him with the necessary training.
      PFR File, Tab 1 at 6. In fact, he admits that a prior permit lapsed because the
      agency “didn’t give [him] the drive time,” which indicates that he was
      responsible for obtaining this training. IAF, Tab 8. Further, the appellant does
      not explain how the stress of an allegedly heavy workload precluded him from
      obtaining a CDL on his own time within 6 months.           Therefore, we find that
      6 months was a reasonable amount of time for the appellant to obtain a CDL.
¶10           The appellant also alleges that his supervisor had an “agenda” to remove
      him.     PFR File, Tab 1 at 4.     To the extent he is alleging that the agency’s
      application of the employment condition was patently unfair or based on bad
      faith, we find that he has not provided any supporting evidence. Thus, we find
      that the agency proved its charge of failure to meet a condition of employment.
      The agency proved its charge of insubordination.
¶11           Insubordination is the willful and intentional refusal to obey an authorized
      order of a superior officer that the officer is entitled to have obeyed. Parbs v.
                                                                                       6

      U.S. Postal Service, 107 M.S.P.R. 559, ¶ 13 (2007), aff’d per curiam,
      301 F. App’x 923 (Fed. Cir. 2008). It requires proof of intent, which is a state of
      mind that is generally proven by circumstantial evidence in the context of an
      insubordination charge. Id. Circumstantial evidence is “based on inference and
      not on personal knowledge or observation.” Black’s Law Dictionary 636 (9th ed.
      2009). In considering whether the agency has proven intent, the Board must
      examine the totality of the circumstances. Parbs, 107 M.S.P.R. 559, ¶ 13.
¶12           The administrative judge found that the agency proved its charge of
      insubordination. ID at 6-7. Specifically, she found that the supervisor ordered
      the appellant to obtain a CDL by the May 2015 deadline and that the appellant
      was required to obey the order. ID at 6; IAF, Tab 3, Subtab 4h at 1. She further
      found that, based on the circumstantial evidence, the appellant acted willfully in
      failing to comply with the order. ID at 6.
¶13           On review, the appellant does not challenge the administrative judge’s
      finding that he was required to obey his supervisor’s order. PFR File, Tab 1
      at 4‑6. Instead, he argues that he did not intentionally disobey the order because
      he was “working in good faith” to obtain a CDL. Id. at 6. He asserts that the fact
      that he obtained his commercial driver’s permit demonstrates his good faith. Id.
      at 4.    He also alleges that he told his supervisor that he was not capable of
      obtaining a CDL before the deadline because it was not enough time, but that he
      would try to obtain it as soon as possible. Id. Further, he disputes the following
      pieces of circumstantial evidence that the administrative judge relied on in
      finding intent: (1) his statement that there were other employees who already had
      CDLs; and (2) the absence of evidence that he proposed a plan to his supervisor
      to obtain CDL training. Id. at 5; ID at 7.
¶14           We find that the circumstantial evidence establishes that the appellant
      understood his supervisor’s order to obtain a CDL by May 28, 2015, and that he
      refused to comply. IAF, Tab 3, Subtab 4h at 1. The appellant admitted to saying,
      “[D]o what you got to do,” in response to his supervisor’s warning that he would
                                                                                           7

      issue discipline up to a removal if the appellant did not take action to obtain a
      CDL.     IAF, Tab 3, Subtab 4e at 1, Subtab 4f at 2.          Thus, we find that he
      understood that he had to obtain a CDL before the deadline, or face discipline.
      He also stated that, at first he considered taking the recommended CDL training
      class, but when he found out the agency would not cover the cost, he told his
      supervisor that obtaining a CDL in a month “just couldn’t happen” and that he
      would “get it the standard way.”        IAF, Tab 3, Subtab 4e at 1.         Thus, the
      circumstantial evidence shows that the appellant understood his supervisor’s
      order and that he intentionally disobeyed it. See Blocker v. Department of the
      Army, 6 M.S.P.R. 467, 469-70 (1981) (finding that the agency established the
      requisite intent for an insubordination charge by showing that the appellant
      understood the order and refused to obey).
¶15          We disagree with the appellant that the fact that he obtained a commercial
      driver’s permit on June 16, 2015, over 2 weeks past the deadline, establishes that
      he lacked the intent to disobey the order. PFR File, Tab 1 at 4. Further, we find
      that the administrative judge properly relied on the appellant’s statement in
      response to the notice of proposed removal that there were other employees who
      already had CDLs, and the absence of evidence that the appellant proposed a plan
      to his supervisor to obtain CDL training, as valid circumstantial evidence
      supporting an inference that the appellant did not intend to obtain a CDL. IAF,
      Tab 3, Subtab 4e at 1.     For these reasons, we find that the agency proved its
      charge of insubordination.
¶16          Accordingly, we find that the administrative judge properly affirmed the
      agency’s removal action. 5



      5
        The appellant does not challenge, and we find no error in, the administrative judge’s
      findings that a nexus exists between the sustained misconduct and the efficiency of the
      service, the agency considered the relevant Douglas factors, and the penalty of removal
      is within the bounds of reasonableness. ID at 7-10.
                                                                                 8

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      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 U.S. 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 U.S. 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
                                                                                 9

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




FOR THE BOARD:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
