                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHEILA A. MCNAIR,                               DOCKET NUMBER
                   Appellant,                        DC-0752-14-0385-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: September 16, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Sheila A. McNair, Calypso, North Carolina, pro se.

           Cliff Lockett, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant was employed as a Food Inspector for the agency. Initial
     Appeal File (IAF), Tab 7.       As an intermittent employee, the appellant was
     required to be available and to report to work as needed. IAF, Tab 5 at 51-52.
     The agency proposed the appellant’s removal based on seven specifications of
     unsatisfactory attendance. Id. at 30-31. In deciding to remove the appellant, the
     deciding official sustained five of the specifications. Id. The appellant filed an
     appeal challenging her removal. IAF, Tab 1. She asserted affirmative defenses
     of discrimination based on color and retaliation for making protected disclosures.
     Id.; see IAF, Tab 8 at 2. The appellant requested a hearing. IAF, Tab 3. At the
     hearing, the agency withdrew one of the five sustained specifications.          IAF,
     Tab 16, Hearing Compact Diskette (HCD). The administrative judge issued an
     initial decision sustaining the charge and the penalty and finding that the
     appellant had failed to establish either of her affirmative defenses. IAF, Tab 17,
     Initial Decision (ID).
                                                                                         3

¶3        The appellant has filed a petition for review rearguing defenses for each of
     the sustained specifications of unsatisfactory attendance and challenging the
     penalty. Petition for Review (PFR) File, Tab 1. The agency responds that the
     appellant merely reargues her case and has not shown any reason to disturb the
     initial decision. PFR File, Tab 3 at 7-8.
¶4        The agency bears the burden of establishing three things in order to
     withstand a challenge to an adverse action against an employee. First, the agency
     must prove, by a preponderance of the evidence, that the charged conduct
     occurred. 2 Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318,
     ¶ 11 (2010) (citing 5 U.S.C. § 7701(c)(1)(B)). Second, the agency must establish
     that there is a nexus between the conduct and the efficiency of the service. Id.
     (citing 5 U.S.C. § 7513(a)).     Finally, the agency must demonstrate that the
     penalty is reasonable. Id. (citing Douglas v. Veterans Administration, 5 M.S.P.R.
     280, 306-07 (1981)).
     The administrative judge correctly sustained the charge.

¶5        The administrative judge sustained the charge of unsatisfactory attendance,
     specifically sustaining specifications 1, 2, 6, and 7. ID at 3-9 (citing Miller v.
     U.S. Postal Service, 117 M.S.P.R. 557, ¶ 17 (2012) (where there is one charge
     with multiple factual specifications set out in support of the charge, proof of one
     or more, but not all of the supporting specifications is sufficient to sustain the
     charge)). In her decision, the administrative judge properly identified the factual
     questions in dispute, summarized the evidence, stated which version she believed,
     and explained why she found the version of events proffered by agency witnesses
     to be more credible than the appellant’s version of events. ID at 3-9; see Hillen v.
     Department of the Army, 35 M.S.P.R. 453, 458 (1987) (listing those factors to be
     considered by an administrative judge in resolving credibility issues). The Board

     2
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
                                                                                       4

     must give deference to an administrative judge’s credibility determinations when
     they are based, explicitly or implicitly, on the observation of the demeanor of
     witnesses testifying at a hearing; the Board may overturn such determinations
     only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
     of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).        Although the appellant
     disagrees with the administrative judge’s conclusions in favor of the agency, her
     petition has provided no reason for the Board to overturn the administrative
     judge’s credibility determinations and substitute its own, nor has she otherwise
     shown that the administrative judge erred in finding that the agency’s charge is
     supported by preponderant evidence.
¶6        On review, the appellant generally asserts that there was a lack of
     communication between her supervisors that led to the issues with her attendance,
     and she argues that she should therefore not be punished. PFR File, Tab 1 at 4.
     The appellant also argues that she was available with a working telephone and
     made appropriate arrangements as needed. Id. The administrative judge found,
     however, that the appellant’s assertions were not supported by the record. The
     administrative judge did not find that any of the arguments advanced by the
     appellant were credible or persuasive and we see no reason to disturb her
     findings.   See Haebe, 288 F.3d at 1301 (outlining the standard of deference
     afforded to an administrative judge’s findings based upon the credibility of
     witnesses). Accordingly, we find that the agency has met its burden of proving
     the charge of unsatisfactory attendance by the preponderance of the evidence.
     See Gonzalez, 114 M.S.P.R. 318, ¶ 11. We therefore affirm the administrative
     judge’s decision sustaining the charge.
     There is a nexus between the charged conduct and the efficiency of the service.

¶7        The administrative judge found that the appellant’s charged conduct directly
     involved her job duties because one of the primary purposes of her position was
     to provide emergency coverage for absent employees. ID at 13. We agree that
                                                                                      5

     there is a nexus between the agency’s discipline for the charged conduct and the
     efficiency of the service. See Gonzalez, 114 M.S.P.R. 318, ¶ 11. We therefore
     affirm the administrative judge’s conclusion in this regard.
     The removal penalty is within the tolerable bounds of reasonableness.

¶8        On review, the appellant argues that a lack of communication between
     supervisors caused some of her attendance issues and she should therefore not be
     punished. PFR File, Tab 1 at 4. The Board has recognized a number of relevant
     factors in determining whether a penalty is within the tolerable bounds of
     reasonableness. Douglas, 5 M.S.P.R. at 305-06. The appellant was put on notice
     regarding aggravating factors the agency would consider in determining the
     appropriate penalty, including the nature and seriousness of the appellant’s
     misconduct, and her supervisors’ loss of confidence. IAF, Tab 5 at 32. In the
     removal decision, the agency weighed relevant factors including the appellant’s
     approximately 2 years of service, lack of a prior disciplinary record, and
     otherwise acceptable performance, before finding that the mitigating factors did
     not outweigh the seriousness of her misconduct, particularly considering that her
     inability to report to work affected the agency’s ability to carry out its mission.
     Id. at 18-19. The administrative judge found that the agency considered relevant
     Douglas factors, and that the penalty imposed was within the bounds of
     reasonableness.   ID at 15.    Although the appellant generally asserts that she
     should not have been punished, we find no reason to disturb the administrative
     judge’s conclusion.
     The appellant has not established her affirmative defenses of discrimination based
     on color or retaliation for protected whistleblowing.
¶9        The appellant bears the burden of proving her affirmative defenses by
     preponderant evidence. 5 C.F.R. §1201.56(a)(2)(iii). She alleges that the agency
     discriminated against her based upon her color (Black) and retaliated against her
     for making a protected disclosure.
                                                                                        6

¶10        The appellant’s claim of disparate treatment based on color was grounded
      on her assertion that she was required to travel away from her home plant more
      than a Caucasian female coworker. IAF, Tab 10 at 3. To establish a prima facie
      case of discrimination based on disparate treatment, an appellant must prove that:
      (1) she is a member of a protected class; (2) she suffered an adverse employment
      action; and (3) the unfavorable action gives rise to an inference of discrimination.
      McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If an appellant
      establishes a prima facie case of prohibited employment discrimination, the
      burden of going forward then shifts to the agency to articulate a legitimate,
      nondiscriminatory reason for its action; and, finally, the employee must show that
      the agency’s stated reason is merely a pretext for prohibited discrimination. Id.
      at 802-04.   However, in a case like this, where the record is complete and a
      hearing has been held, the Board will proceed directly to the ultimate question of
      whether the appellant has demonstrated by a preponderance of the evidence that
      the agency’s reason for its actions was a pretext for discrimination. See Berry v.
      Department of Commerce, 105 M.S.P.R. 596, ¶ 10 (2007).               Applying this
      standard, the administrative judge found that the appellant had not met her burden
      of proving that she, as a Black woman, had to travel more than similarly-situated
      Caucasian employees. She noted that the appellant had not submitted travel logs
      of other employees. She also considered that the appellant’s allegation regarding
      travel had been corrected. Finally, the administrative judge considered that the
      appellant’s supervisor credibly testified both that his comparison of the
      appellant’s schedule with that of another employee showed that the appellant did
      not travel more than did the other employee, and that scheduling was random and
      done according to need.       ID at 9-11.     We see no reason to disturb the
      administrative judge’s finding that the appellant failed to prove disparate
      treatment discrimination.
¶11        Next, in order to establish reprisal for whistleblowing, the appellant must
      show by preponderant evidence that she engaged in whistleblowing activity by
                                                                                  7

making a protected disclosure and that the disclosure was a contributing factor in
the   agency’s    personnel   action.   Shannon     v.   Department    of   Veterans
Affairs, 121 M.S.P.R. 221, ¶ 21 (2014).     Protected disclosures under 5 U.S.C.
§ 2302(b)(8)(A) include disclosures that the employee reasonably believes
evidence “any violation of any law, rule, or regulation,” as well as disclosures
that she reasonably believes evidence “gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
or safety.” Certain disclosures to the Special Counsel or to the Inspector General
are also protected.   See 5 U.S.C. § 2302(b)(8)(B).      In this case, the appellant
alleges that she made a protected disclosure when she reported to a human
resources staff member that a supervisor was completing unemployment
compensation requests on behalf of employees. IAF, Tab 10. The administrative
judge found that the appellant’s disclosure was not protected because the
appellant failed to articulate a reasonable belief that her disclosure evidenced any
of the enumerated protected categories.           ID at 12.       Furthermore, the
administrative judge found that the appellant failed to demonstrate that anyone
who was involved in proposing or deciding her removal had either actual or
constructive knowledge of her disclosure. ID at 12. We see no reason to disturb
the administrative judge’s findings regarding the appellant’s whistleblower
reprisal claim.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
                                                                                    8

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
                                                                                       9

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.   42 U.S.C.   § 2000e-5(f)
and 29 U.S.C. § 794a.

Other Claims: Judicial Review
         If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
of appeals must receive your petition for review within 60 days after the date of
this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you
choose to file, be very careful to file on time.
         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 United States 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 United
States     Code,     at   our     website,     http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective            websites,            which           can       be         accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
                                                                             10

      If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal 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.
