                     CORRECTED : AUGUST 5, 2010



       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

               CAROL A. MCGACHEY,
                    Petitioner,

                           v.
        DEPARTMENT OF THE AIR FORCE,
                Respondent.
              __________________________

                      2009-3304
              __________________________

   Petition for review of the Merit Systems Protection
Board in DA0752080356-I-1.
              ___________________________

                Decided: August 3, 2010
             ___________________________

    GLENN D. MANGUM, Law Offices of Glenn D. Mangum,
of San Antonio, Texas, argued for petitioner.

    JACOB A. SCHUNK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent. With
MCGACHEY   v. AIR FORCE                                 2


him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and REGINALD T.
BLADES, JR., Assistant Director.
               __________________________

  Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.
PER CURIAM.

    Carol A. McGachey petitions for review of a decision
by the Merit Systems Protection Board, which upheld a
decision by the Department of the Air Force to remove
Ms. McGachey from her position. We affirm.

                            I

   Ms. McGachey, a registered nurse, worked as a Nurse
Specialist in the Hauth Birthing Center at Lackland Air
Force Base from 2002 through April 3, 2008. The agency
proposed to remove her from her position based on three
charges of misconduct.

    The facts underlying the first charge were the follow-
ing: At 4:00 a.m. on December 14, 2007, Ms. McGachey
called her unit duty station to request sick leave for a
migraine headache; when she called, she reached the
night unit coordinator. Because Ms. McGachey’s element
leader was not on duty at that time, the night unit coor-
dinator told her that she needed to contact her element
leader to have her request approved. Ms. McGachey
responded that she did not believe she had to call her
element leader. Ms. McGachey then ended the call. She
did not leave her telephone number, nor did she call her
element leader or any other supervisor, either then or
later. Instead, Ms. McGachey took medication and fell
asleep for several hours. The agency treated those actions
3                                   MCGACHEY   v. AIR FORCE


as “failure to follow leave procedures and absent without
leave” (the “AWOL charge”).

    The facts underlying the second charge were the fol-
lowing: A fellow nurse reported to Ms. McGachey’s ele-
ment leader that Ms. McGachey had used a computer and
printer in the unit to print out an email relating to her
work as a union representative. In response, the element
leader initiated an investigation in which a systems
administrator discovered that on December 28, 2007, Ms.
McGachey had downloaded and modified union materials
on her computer profile. The agency concluded that Ms.
McGachey had violated the agency’s policy concerning the
use of government computers for non-official business.
The agency characterized Ms. McGachey’s use of the
agency’s computer system to access and store union
materials as a “misuse of government property.”

     The facts underlying the third charge were the follow-
ing: On January 26, 2008, the unit coordinator responsi-
ble for allocating patients to Ms. McGachey and other
nurses on duty told Ms. McGachey to start the admission
paperwork for a new patient. Ms. McGachey refused to
follow that instruction on the ground that she was moni-
toring a sick patient and felt that she could not take on
that additional duty and still provide adequate care to the
first patient. The agency concluded that Ms. McGachey’s
actions constituted a “refusal to carry out assigned du-
ties.”

     In the letter proposing her removal, the proposing of-
ficial noted that Ms. McGachey had previously received a
letter of reprimand for unauthorized absence (i.e., AWOL)
and discourteous conduct in 2006, and a ten-day suspen-
sion for sleeping on duty and failing to carry out assigned
duties in 2007. After Ms. McGachey was given an oppor-
MCGACHEY   v. AIR FORCE                                   4


tunity to respond to the charges, the deciding official
sustained all three charges and terminated Ms.
McGachey’s employment. The deciding official found that
the charges were “fully supported by the evidence” and
that Ms. McGachey’s removal was an appropriate pun-
ishment and was consistent with the penalty guidelines.
In the removal notice, the deciding official noted two
disciplinary actions that had been omitted from the
agency’s earlier notice: a verbal counseling in 2006 and a
letter of counseling in 2007.

    Ms. McGachey appealed the agency’s decision to the
Merit Systems Protection Board, challenging the evidence
supporting each of the three charges, as well as the rea-
sonableness of the penalty. The administrative judge who
was assigned to the case held that the agency had failed
to prove the charge of “refusal to carry out assigned
duties,” but that the remaining charges were supported
by preponderant evidence. With respect to the AWOL
charge, Ms. McGachey asserted that her actions were
consistent with Article 13, section 11, of the collective
bargaining agreement between the agency and her union
(“the CBA”) because that provision required only that she
“call the duty station [if the supervisor was not available]
and talk with whoever was at the duty station acting in
the supervisor’s place.” However, the administrative
judge found that both the unit policy and the CBA re-
quired Ms. McGachey to contact her supervisor. In addi-
tion, the administrative judge found that Ms. McGachey
did not leave her telephone number and did not call her
supervisor later in the day, and that those actions were
contrary to the sick leave protocol mandated by the CBA.
The administrative judge therefore sustained the agency’s
decision on that issue.
5                                     MCGACHEY   v. AIR FORCE


     As for the “misuse of government property” charge,
Ms. McGachey admitted that she accessed union materi-
als using the agency’s email system and that she stored
those materials in her agency profile. Nevertheless, Ms.
McGachey maintained that the CBA authorized her
actions. The administrative judge disagreed. While
recognizing that the CBA permits email correspondence
between union officials and employee members, the
administrative judge also found that the CBA does not
“authorize[] the Union to use the agency’s email and
computer system to transmit Union documents to Union
officials, or to store Union documents on the agency’s
computer system.” Because Ms. McGachey used the
agency’s computer system to access and store union
documents, contrary to a policy that restricted use to
“official Government Business or a use Authorized by
[the] Commander,” the administrative judge sustained
the agency’s charge.

    The administrative judge next discussed the agency’s
penalty choice and held that Ms. McGachey’s removal was
not unreasonable in light of the sustained charges. The
administrative judge noted that the deciding official
should not have listed the two disciplinary actions that
were not included in the proposed removal letter, but
accepted the deciding official’s statement that she relied
only on the letter of counseling and that she would have
taken the same action even if the letter of counseling had
not been considered. The administrative judge also
credited the deciding official’s testimony that Ms.
McGachey’s removal was warranted, even if only one or
two of the charges were sustained. In upholding the
agency’s decision, the administrative judge focused on the
AWOL charge and found (1) that Ms. McGachey was
“clearly on notice” of the sick leave policy, (2) that “one of
[her] prior disciplinary actions involved a charge of
MCGACHEY   v. AIR FORCE                                  6


AWOL,” and (3) that her “conduct was intentional and
raises a question concerning her potential for rehabilita-
tion.” As a result, the administrative judge determined
that Ms. McGachey’s “removal is not beyond the bounds of
reasonableness.” The full Board denied review of the
administrative judge’s decision, and Ms. McGachey now
petitions for review by this court.

                            II

    Ms. McGachey asserts that the Board erred in uphold-
ing the agency’s decision with respect to the AWOL
charge because her request for leave was in compliance
with the CBA. Specifically, Ms. McGachey argues that
because her supervisor was not on duty, the CBA required
only that she make her request “to the person designated
to act in the supervisor’s place” and that the night unit
coordinator was acting in the supervisor’s place when she
made her request. We disagree. The record shows that
the night unit coordinator was not designated to act in the
supervisor’s place, and that unit coordinators do not have
the authority to approve sick leave. Moreover, Ms.
McGachey made no effort to contact the other element
leader who was on duty and was acting as the designated
alternate under the CBA. Ms. McGachey also admits that
she did not leave her telephone number, as required by
the CBA. Ms. McGachey argues that leaving her tele-
phone number was unnecessary because that number was
already listed on the recall roster. But regardless of
whether she considered that step as necessary, the policy
required Ms. McGachey to provide her telephone number
and she failed to do so. In addition, contrary to the sick
leave protocol under the CBA, the evidence showed that
Ms. McGachey failed to contact her supervisor “as soon as
feasible.” Instead, she apparently decided that the call
she had made was sufficient and that she did not need to
7                                   MCGACHEY   v. AIR FORCE


follow the other steps required to request sick leave.
There is substantial evidence supporting the Board’s
conclusion that, after the night unit coordinator reminded
Ms. McGachey of her responsibility to call her supervisor,
Ms. McGachey intentionally disregarded the sick leave
policy.

    Ms. McGachey also asserts that the Board erred in
upholding the charge of misusing government property.
Specifically, she contests the sufficiency of the evidence
offered by the agency and the Board’s conclusion that her
use was unauthorized. However, the systems administra-
tor who investigated Ms. McGachey’s profile provided
documentary and testimonial evidence that Ms.
McGachey’s profile contained union materials modified on
December 28, 2007, and Ms. McGachey admits to storing
those materials on her profile. In addition, substantial
evidence supports the Board’s determination that the
CBA permits union officials to use the agency’s computer
system only for certain purposes, and that her act of
receiving the materials in question and then storing and
modifying those materials on the agency’s system was not
the type of communication “between the Union officials to
employee members” permitted by the CBA. The CBA
required the agency to provide two computers and a
printer for union use, which were located outside Ms.
McGachey’s unit. However, Ms. McGachey admitted that
she used computers in the unit to access and store the
union materials, rather than the resources provided for
union business under the CBA. Substantial evidence
therefore supports the charge of misusing government
property.
MCGACHEY   v. AIR FORCE                                  8




                            III

    Ms. McGachey also contends that the Board erred in
upholding her removal because it was an unreasonable
penalty. See Pope v. U. S. Postal Serv., 114 F.3d 1144,
1147 (Fed. Cir. 1997). We have stated that “[i]t is a well-
established rule of civil service law that the penalty for
employee misconduct is left to the sound discretion of the
agency.” Lachance v. Devall, 178 F.3d 1246, 1251 (Fed.
Cir. 1999). For that reason, when reviewing penalties
imposed by an agency for a particular offense we “will not
disturb a choice of penalty within the agency’s discretion
unless the severity of the agency’s action appears totally
unwarranted in light of all factors.” Id.

     Ms. McGachey asserts that her removal constitutes
an abuse of discretion because the agency’s penalty guide-
lines suggest a much lower penalty for a second AWOL
offense (cause action 4), a second failure to request leave
(cause action 5), or a first unauthorized use of property
offense (cause action 21a). However, the agency classified
each charge as a “cause action 20,” a category for which
the guidelines suggest removal as the maximum penalty.
We have some doubt as to whether Ms. McGachey’s
actions were properly classified as a “cause action 20,”
especially with respect to the misuse of government
property charge. That category is for offenses such as
“[i]nsubordinate defiance of authority, refusal to comply
with proper orders, [or] wanton disregard of directives or
insolence,” and that language appears to describe scenar-
ios more extreme than in this case. The employing
agency is principally responsible for interpreting its own
penalty guidelines, however, and we decline to override
the agency’s decision to interpret those guidelines to
9                                    MCGACHEY   v. AIR FORCE


permit flexibility in the way the agency categorizes par-
ticular charges. Because the agency’s application of its
guidelines was not irrational, we cannot overturn the
penalty chosen by the agency on the ground that it was
based on a misapplication of those guidelines.

    We regard the penalty imposed in this case to be quite
harsh for the conduct at issue, particularly in light of the
administrative judge’s dismissal of the charge of refusal
to carry out assigned duties. Nonetheless, we are con-
strained by the very narrow scope of our review of agency
penalty decisions. Under the governing standard, when
the agency makes clear, as it did here, that it would have
imposed the same penalty based only on those charges
that were upheld, we cannot overturn the agency’s choice
of penalty unless we conclude that the penalty was “to-
tally unwarranted in light of all factors,” Lachance, 178
F.3d at 1251, or “so harsh and unconscionably dispropor-
tionate to the offense that it amounts to an abuse of
discretion,” O'Neill v. Dep’t of Hous. & Urban Dev., 220
F.3d 1354, 1365 (Fed. Cir. 2000). Notwithstanding our
discomfort with the harshness of the result in this case,
we are not able to conclude that the penalty is so exces-
sive as to satisfy that exacting standard, particularly with
regard to the AWOL charge. There is substantial evi-
dence supporting the Board’s finding that Ms. McGachey
intentionally violated the sick leave policy; moreover, she
had been disciplined for an AWOL charge on a previous
occasion. Both of those facts constitute aggravating
factors under the circumstances. Therefore, despite our
reservations about the severity of the penalty imposed in
this case, we decline to overturn the Board’s decision
upholding the agency’s removal decision.

                       AFFIRMED
       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               __________________________

                CAROL A. MCGACHEY,
                     Petitioner,

                            v.
        DEPARTMENT OF THE AIR FORCE,
                Respondent.
               __________________________

                       2009-3304
               __________________________

   Petition for review of the Merit Systems Protection
Board in DA0752080356-I-1.
              __________________________

GAJARSA, Circuit Judge, additional views.

    I am in complete agreement with the conclusions and
the judgment reached in this case and join the opinion. I
must, however, note and emphasize the reservation
expressed in the opinion. I am concerned about the
severity of the penalty and the fact that each of the
charges were classified as a “cause of action 20,” with a
penalty range of reprimand to removal even for the first
offense. This seems to indicate that more than a mere
personnel action was the underlying focus of this proceed-
ing. The reasons for this classification were not developed
or clearly stated. It is important for an agency not to be
MCGACHEY   v. AIR FORCE                                  2


biased towards its personnel or allow unstated reasons to
be the cause and purpose of the removal action. But this
court may not substitute its opinion in personnel matters
of an administrative agency even if some might consider
the action egregious. United States Postal Service v.
Gregory, 534 U.S. 1, 6-7 (2001) (stating that the scope of
review of administrative decisions under the arbitrary
and capricious standard is narrow and the Board has
wide latitude in fulfilling its obligation to review agency
disciplinary actions).
