                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                     2006-3296



                                DEBORAH STILLEY,

                                                           Petitioner,

                                          v.


                      DEPARTMENT OF VETERANS AFFAIRS,

                                                           Respondent.




        Daniel Minahan, Minahan and Shapiro, P.C., of Lakewood, Colorado, for
petitioner.

       Brian T. Edmunds, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Jeanne E. Davidson, Deputy Director. Of counsel was Marla T. Conneely.

Appealed from: Arbitrator Decision
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2006-3296

                                 DEBORAH STILLEY,

                                                              Petitioner,

                                           v.

                       DEPARTMENT OF VETERANS AFFAIRS,

                                                              Respondent.

                            __________________________

                              DECIDED: March 20, 2007
                            __________________________


Before PROST, Circuit Judge, PLAGER, Senior Circuit Judge, and MOORE, Circuit
Judge.

PER CURIAM.

      The Department of Veterans Affairs (“Department”) removed Deborah Stilley

from her employment as a nurse.           An arbitrator reversed the decision of the

Department, but ordered that she not receive back pay for the period of time she was

out of work. Because the arbitrator did not err in denying back pay, we affirm.

      Ms. Stilley is employed as a licensed practical nurse at the VA Medical Center in

Denver, Colorado.     After an investigation by the Department’s Office of Inspector

General (“OIG”), she was removed from her position based on charges of “authorizing

the use of government resources under false pretenses” by ordering laboratory tests for
herself and “providing improper and fraudulent documentation to excuse personal

absences from duty.” She filed a grievance, and her case proceeded to arbitration.

      The arbitrator concluded that any information obtained from Ms. Stilley during the

investigation could not be used to support Ms. Stilley’s removal because the OIG

investigators did not permit her to have a union representative present when they

questioned her, as provided in the applicable union agreement. Ms. Stilley, however,

conceded at the hearing before the arbitrator that she had ordered personal medical

tests at government expense. On the basis of the record, the arbitrator determined that

Ms. Stilley’s removal could not be sustained and ordered that she be restored to duty,

but without back pay during the period she was not working. She was deemed to have

been on a “disciplinary suspension” for that period of time, which was just over a year.

      On appeal, Ms. Stilley argues that a “time-served” suspension is an inappropriate

penalty. Under this court’s precedents, however, an arbitrator may mitigate a removal

penalty to a time-served disciplinary suspension without pay if the petitioner was “at

least in part responsible for the removal action” and “some personnel action was

justified.” Ollett v. Dep’t of the Air Force, 253 F.3d 692, 694 (Fed. Cir. 2001); see also

Am. Fed’n of Gov’t Employees, Local 2718 v. Dep’t of Justice, INS, 768 F.2d 348, 351

(Fed. Cir. 1985). Because Ms. Stilley admitted at least some of the misconduct on

which the initial removal action was based, the arbitrator acted within his discretion

when he imposed the suspension as a mitigated penalty.           Furthermore, while the

arbitrator did not identify specific mitigating factors under Douglas v. Veterans

Administration, 5 M.S.P.R. 280 (1981), he did consider in determining the appropriate

sanction factors such as her twenty-four years of exemplary and discipline-free service

2006-3296                                   2
and her willingness to admit her actions were wrong. Finally, to the extent decisions of

the Merit Systems Protection Board cited by Ms. Stilley, see, e.g., Fulks v. Dep’t of

Defense, 100 M.S.P.R. 228 (2005), may be seen as inconsistent with the governing law

of this circuit, they of course do not affect the outcome of the case.       Under the

circumstances presented by this case, we cannot say that the arbitrator’s decision was

unsupported by substantial evidence or was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law. See 5 U.S.C. § 7703(c); Ollett, 253

F.3d at 693.




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