                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TONIA J. BIBBY,                                 DOCKET NUMBER
                         Appellant,                  SF-0752-13-0266-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: August 29, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lesa L. Donnelly, Anderson, California, for the appellant.

           Suzanne K. Roten, Esquire, San Diego, California, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                           BACKGROUND
¶2              Effective January 23, 2013, the agency removed the appellant from federal
          service based on two charges: (1) unauthorized removal of government property
          on December 12, 20, and 26, 2011, and January 8, 2012; and (2) making false
          statements. Initial Appeal File (IAF), Tab 6 at 39, 87. The appellant appealed
          her removal to the Board and requested a hearing. IAF, Tab 1 at 2, 3. She argued
          that the penalty of removal was unreasonable given certain mitigating factors, the
          agency committed harmful procedural error in effecting the removal, and the
          agency treated her disparately compared to another employee who engaged in
          similar conduct. Id. at 4, 5.
     ¶3         After holding the requested hearing, the administrative judge issued an
          initial decision affirming the removal action. IAF, Tab 28, Initial Decision (ID)
          at 1. She sustained both charges, found a nexus between the sustained conduct
          and the efficiency of the service, and determined that the penalty was within the
          bounds of reasonableness.       ID at 5-12.      She additionally found that the
          appellant’s harmful procedural error and disparate penalties claims were without
          merit. ID at 6-7, 12-16.
                                                                                      3

¶4        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.   On review, she primarily challenges the administrative judge’s
     findings regarding nexus and the reasonableness of the penalty, including her
     claim of disparate penalties.     Id. at 7-18.      The agency has responded in
     opposition. PFR File, Tab 3.

                    DISCUSSION OF ARGUMENTS ON REVIEW
¶5        On review, the appellant argues that the agency failed to establish a nexus
     between her misconduct and the efficiency of the service.          PFR File, Tab 1
     at 9-10. The nexus requirement, for purposes of whether an agency has shown
     that its action promotes the efficiency of the service, means there must be a clear
     and direct relationship between the articulated grounds for an adverse action and
     either the employee’s ability to accomplish her duties satisfactorily or some
     other legitimate government interest.         Scheffler v. Department of the
     Army, 117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013).
     The Board has found there is sufficient nexus between an employee’s conduct
     and the efficiency of the service where the sustained conduct: (1) occurred in
     part at work, Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir.
     1987); (2) involved misuse of government property, Els v. Department of the
     Army, 82 M.S.P.R. 27, ¶ 11 (1999); and (3) concerned an employee’s lack of
     candor   during   an   administrative    inquiry,    Ludlum   v.   Department    of
     Justice, 87 M.S.P.R. 56, ¶¶ 2, 25, 28 (2000), aff’d, 278 F.3d 1280 (Fed. Cir.
     2002).
¶6        As the administrative judge properly noted, although the appellant’s actions
     concerning charge (1) took place while she was off duty, they occurred on
     government property and involved taking government property. ID at 7; IAF,
     Tab 6 at 28-33, 39.    In addition, concerning charge (2), the appellant’s false
     statements were made at work to an agency law enforcement officer. ID at 7;
     IAF, Tab 6 at 21, 39. Under the circumstances, the administrative judge properly
                                                                                           4

     found that the agency established nexus.           See Parker, 819 F.2d at 1116;
     Els, 82 M.S.P.R. 27, ¶ 11; Ludlum, 87 M.S.P.R. 56, ¶ 28. Although the appellant
     argues that the administrative judge failed to take into consideration certain
     factors, e.g., her superior performance, her remorse, her former supervisor’s and
     coworkers’ support, PFR File, Tab 1 at 10, the record shows that the deciding
     official appropriately considered these factors during the penalty analysis, IAF,
     Tab 6 at 35-37; Hearing Compact Disc (CD) at 2:00:20-2:18:30 (testimony of
     deciding official).
¶7         The appellant also argues that the penalty of removal was too harsh under
     the circumstances. PFR File, Tab 1 at 10-18. Where the agency’s charges are
     sustained, the Board will review an agency-imposed penalty only to determine if
     the agency considered all of the relevant factors and exercised management
     discretion within tolerable limits of reasonableness. Woebcke v. Department of
     Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010).             Here, the administrative
     judge found that the deciding official properly weighed the Douglas factors and
     concluded that her removal promoted the efficiency of the service. ID at 9-12.
     The administrative judge noted that the deciding official considered several
     mitigating factors, including the appellant’s lengthy, discipline-free service, her
     superior performance even after the misconduct, her remorse, her former
     supervisor’s continued trust in her, 2 and her potential for rehabilitation, but
     found that they did not outweigh the seriousness of the offense, which resulted in
     a criminal conviction, and the nature of the appellant’s position, which included
     gathering and forwarding the logs for the gas pumps at issue in the appeal as


     2
       The appellant argues on review that the administrative judge failed to give sufficient
     weight to her former supervisor’s testimony. PFR File, Tab 1 at 7-8. For the reasons
     explained in the initial decision, we agree with the administrative judge that the
     deciding official’s diminished trust in the appellant—and not her former supervisor’s
     continued trust—is the more appropriate consideration when analyzing the Douglas
     factor concerning loss of trust and confidence. ID at 11 n.8.
                                                                                             5

     well as handling money for permits on occasion.              ID at 10-11; IAF, Tab 6
     at 35-37; Hearing CD at 2:00:20-2:18:30 (testimony of deciding official). While
     the appellant generally disagrees with the analysis of the Douglas factors, her
     disagreement provides no reason to disturb the administrative judge’s explained
     and reasoned finding that removal was within the tolerable limits of
     reasonableness under the circumstances.          See PFR File, Tab 1 at 10-12; ID
     at 9-12; Woebcke, 114 M.S.P.R. 100, ¶ 7.
¶8         Concerning the appellant’s disparate treatment argument, we find it
     similarly unpersuasive.      See PFR File, Tab 1 at 12-18.         She alleges that the
     administrative judge erred in finding that the agency did not impose a disparate
     penalty when it chose to suspend C.V., a Supervisory Forestry Technician, rather
     than remove him. 3 Id. at 13-14. As accurately explained by the administrative
     judge, however, unlike the appellant, C.V. engaged in the unauthorized removal
     of government property only once, his actions were not caught on camera, he
     did not make false statements to a Special Agent, and the U.S. Attorney General
     declined to prosecute him.         ID at 14-15.      Under these circumstances, the
     administrative judge properly found that the appellant did not show that there
     was enough similarity between the circumstances surrounding the appellant’s
     charged behavior and C.V.’s charged behavior to establish that they were
     substantially similar for disparate penalty purposes and, even if she had, the
     agency offered a sufficient explanation for the harsher penalty given to the



     3
       The appellant argues on review that the administrative judge erred in denying her
     request to call alleged comparator, C.V., as a witness. PFR File, Tab 1 at 6-7. The
     appellant did not raise this objection below, however, and her failure to do so precludes
     her from raising this objection on review. See Tarpley v. U.S. Postal Service,
     37 M.S.P.R. 579, 581 (1988). In any event, the administrative judge informed the
     appellant that, if appropriate, she could request C.V.’s testimony as rebuttal to evidence
     offered by the agency at hearing. IAF, Tab 19. The record does not reflect that the
     appellant made any such request.
                                                                                      6

     appellant.      ID   at   15;   see   Figueroa   v.   Department    of   Homeland
     Security, 119 M.S.P.R. 422, ¶ 10 (2013).
¶9        The appellant additionally argues that the facts of her case are “nearly
     identical” to those presented in Portner v. Department of Justice, 119 M.S.P.R.
     365 (2013), in which the Board mitigated the employee’s removal to a 45-day
     suspension.   PFR File, Tab 1 at 14-17.     In Portner, the Board found that the
     deciding official erred in finding that the appellant lacked remorse for his
     misconduct and, as a result, failed to properly weigh the relevant Douglas
     factors. 119 M.S.P.R. 365, ¶¶ 11, 15. Consequently, upon its own analysis of the
     Douglas factors, the Board determined that a 45-day suspension was the
     maximum reasonable penalty under the circumstances.         Id., ¶ 22.   Here, the
     administrative judge accurately concluded that the deciding official properly
     weighed the Douglas factors, including the appellant’s rehabilitative potential and
     remorse for her actions. ID at 8-12. Because the agency considered all of the
     relevant Douglas factors, unlike in Portner, the Board must defer to the agency’s
     penalty determination if it is within the bounds of reasonableness.            See
     Woebcke, 114 M.S.P.R. 100, ¶ 7.        Accordingly, as the administrative judge
     properly found, the penalty of removal is within the tolerable limits of
     reasonableness under the circumstances. ID at 9-12.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the
     United States Court of Appeals for the Federal Circuit. You must submit your
     request to the court at the following address:
                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439
                                                                                  7

      The court must receive your request for review no later than 60 calendar
days after the date of this order.    See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      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 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.
      If you are interested in securing pro bono representation for your court
appeal, 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 court. 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.
