Case: 19-2183   Document: 31     Page: 1   Filed: 04/08/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                   TINA M. NOFFKE,
                       Petitioner

                            v.

            DEPARTMENT OF DEFENSE,
                     Respondent
               ______________________

                       2019-2183
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. CH-0752-18-0540-I-1.
                 ______________________

                  Decided: April 8, 2020
                 ______________________

     DARRIN WAYNE GIBBONS, Gibbons Law Firm PLC,
 Richmond, VA, for petitioner.

     DOMENIQUE GRACE KIRCHNER, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for respondent. Also represented by
 JOSEPH H. HUNT, REGINALD THOMAS BLADES, JR., ROBERT
 EDWARD KIRSCHMAN, JR.
                  ______________________

    Before DYK, SCHALL, and O’MALLEY, Circuit Judges.
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 2                                           NOFFKE   v. DEFENSE



 DYK, Circuit Judge.
     Tina M. Noffke seeks review of a decision from the
 Merit Systems Protection Board (“Board”). The Board af-
 firmed the National Geospatial-Intelligence Agency’s
 (“NGA”) decision to remove Ms. Noffke from her position at
 the NGA for absence without leave (“AWOL”), falsification,
 and conduct unbecoming a federal employee. We affirm.
                        BACKGROUND
     Ms. Noffke was first employed by the agency in 1991.
 In her most recent position, she worked as a Budget Ana-
 lyst in the NGA’s St. Louis office. Ms. Noffke worked on a
 flexible schedule, as she often required time off to attend to
 personal matters.
      All NGA employees are required to report their work
 hours through an electronic system. Each employee, prior
 to submitting time sheets, is provided with a notice that
 “[k]nowingly submitting an inaccurate time sheet is con-
 sidered time reporting fraud and is subject to disciplinary
 action, including removal.” J.A. 397. In addition, employ-
 ees are required to swipe an access card and enter an ac-
 cess code to enter or exit NGA facilities. Each employee’s
 entry and exit times are recorded by the NGA’s Access Con-
 trol Records (“ACRs”). The NGA’s Office of Inspector Gen-
 eral (“OIG”) investigates discrepancies between an
 employee’s logged work hours and the ACRs.
     On February 13, 2018, the OIG interviewed Ms. Noffke
 and informed her that she was being investigated for a dis-
 crepancy between her reported work hours and her ACRs.
 At the interview, Ms. Noffke was provided with copies of
 OIG time and attendance analysis spreadsheets, which
 showed the discrepancies between her reported work hours
 and ACRs.
     On May 3, 2018, the agency notified Ms. Noffke that it
 proposed to remove her from her position. The OIG at-
 tached a report (“the OIG report”) to the notice, which
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 NOFFKE   v. DEFENSE                                       3



 included the time and attendance analysis spreadsheets
 and a written Douglas factor analysis. See Douglas v. Vet-
 erans Admin., 5 M.S.P.R. 280, 296–97 (1981) (setting forth
 the factors relevant in determining the appropriateness of
 a penalty). The notice included a detailed accounting of the
 hours that Ms. Noffke was AWOL (48 hours), the hours
 that Ms. Noffke was charged with falsifying (145.50 hours),
 and the hours as to which Ms. Noffke was charged with
 conduct unbecoming a federal employee (234.07 hours). 1
 The notice provided Ms. Noffke with an opportunity to re-
 spond orally and in writing and placed her on paid admin-
 istrative leave until the NGA reached its decision. On June
 7, 2018, Ms. Noffke made an oral response to the agency’s
 proposal.
      On July 17, 2018, the agency issued a decision sustain-
 ing the charges. Ms. Noffke appealed to the Board. The
 administrative judge found that the agency had shown all
 of its charges by a preponderance of the evidence, and that
 the agency had satisfied due process by providing Ms.
 Noffke with notice, an opportunity to respond, and the evi-
 dence that the agency relied on in making its decision. Be-
 cause Ms. Noffke did not seek review by the full Board, the
 decision of the administrative judge became the decision of
 the Board. Ms. Noffke filed this timely appeal, and we have
 jurisdiction under 28 U.S.C § 1295(a)(9).




    1     The agency considers an employee to be AWOL if
 absent from the workplace for five or more hours without
 leave. A falsification is any instance where the employee
 falsely reported more than 20 work hours in a pay period
 in excess of his or her hours worked. A specification for
 conduct unbecoming a federal employee includes any in-
 stance where the employee falsely reported excess hours
 that were less than 20 hours in a pay period.
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 4                                           NOFFKE   v. DEFENSE



                         DISCUSSION
     Our review of Board decisions is limited by statute. We
 may only set aside Board decisions that are: “(1) arbitrary,
 capricious, an abuse of discretion, or otherwise not in ac-
 cordance with law; (2) obtained without procedures re-
 quired by law, rule, or regulation having been followed; or
 (3) unsupported by substantial evidence.”         5 U.S.C.
 § 7703(c).
                               I
      Ms. Noffke challenges the agency’s charges for (1) fal-
 sification and (2) conduct unbecoming a federal employee.
 She argues that they lack the specificity required by due
 process because neither of the two charges alleges a specific
 date of misconduct. The charging document, however,
 specified the pay periods and number of hours for each of
 these charges, and the attached spreadsheets provided a
 detailed accounting of the exact dates and times that
 formed the basis of the agency’s charges. We see no error
 in the Board’s decision rejecting that argument. See Pope
 v. United States Postal Serv., 114 F.3d 1144, 1148–49 (Fed.
 Cir. 1997) (rejecting appellant’s argument that “his due
 process rights were violated because the charges lacked
 specificity regarding dates, times, and places” because
 “[t]he notice given to [the appellant was] quite detailed and
 clearly informed him of the charges as well as the evidence
 the [agency] had in support”).
                              II
     Ms. Noffke argues that the Board’s decision was not
 supported by substantial evidence. Ms. Noffke asserts that
 the Board could not rely on the OIG report because it was
 not an original record and instead referred to other evi-
 dence gathered by the OIG.
     The Administrative Procedure Act (APA) allows the
 agency to receive “any oral or documentary evidence,” and
 only requires the agency to exclude “irrelevant,
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 NOFFKE   v. DEFENSE                                       5



 immaterial, or unduly repetitious evidence.” 5 U.S.C.
 § 556. “[I]t has long been settled that [hearsay] may be
 used in administrative proceedings and may be treated as
 substantial evidence, even without corroboration, if, to a
 reasonable mind, the circumstances are such as to lend it
 credence.” Hayes v. Dep’t of Navy, 727 F.2d 1535, 1538 &
 n.2 (Fed. Cir. 1984) (collecting cases).
     The OIG report, which had been supplied to Ms.
 Noffke, set forth ample evidence to sustain all three of the
 agency’s charges. And the Board had discretion to admit
 the OIG report as evidence. See Kewley v. HHS, 153 F.3d
 1357, 1364 (Fed. Cir. 1998). We conclude that the Board
 properly relied on the OIG report and that substantial evi-
 dence supported the Board’s decision. 2
                             III
     Ms. Noffke asserts that she was entitled to receive the
 evidence underlying the OIG report, “including, but not
 limited to attendance records, emails, witness statements,
 and computer record audits, and tape recordings of state-
 ments.” Appellant’s Br. 7. She argues that the failure to
 supply these documents when the agency was considering
 the charges was a violation of due process.
     After her initial interview with OIG, Ms. Noffke made
 a request for these documents. The agency denied that re-
 quest. Ms. Noffke was, however, provided with detailed
 spreadsheets at her interview, and the record shows that
 she left her interview with copies of the OIG time and at-
 tendance analysis spreadsheets. We conclude that the
 agency provided Ms. Noffke with sufficient notice,


    2    There is no merit to Ms. Noffke’s argument that the
 deciding official needed to rely on the evidence underlying
 the OIG report in the pre-termination proceedings. There
 is no bar to the deciding official’s relying on summary doc-
 uments.
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 6                                          NOFFKE   v. DEFENSE



 including “an explanation of [its] evidence” to satisfy her
 due process rights and the NGA’s regulations. See Cleve-
 land Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985);
 5 C.F.R § 752.404(b)(1); see generally NGA Manual for Dis-
 ciplinary and Adverse Actions, Number 1455.1 (Feb. 19,
 2015). We note that Ms. Noffke never sought discovery of
 those materials in the Board proceedings.
                       AFFIRMED
