                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LAURIE JOLLY,                                   DOCKET NUMBER
                         Appellant,                  AT-0752-15-0013-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: April 15, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Chuck R. Pardue, Esquire, and Shellana Welch, Esquire, Martinez,
             Georgia, for the appellant.

           Christopher M. Kenny, Esquire, Fort Gordon, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained her removal. 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 or the


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the administrative
     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, 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).
¶2         The   appellant,   a   GS-13   Health    Systems    Administrator,    had   been
     experiencing difficulties for some time with pay and leave matters, apparently
     because of a disagreement she had with management as to whether her work
     schedule required her to work a set tour of duty each day. Initial Appeal File
     (IAF), Tab 9 at 5. She had filed numerous equal employment opportunity (EEO)
     complaints over these issues.      On May 2, 2014, she went to see the Chief,
     Medical Expense Performance Reporting System, regarding these matters.
     During the meeting, the appellant expressed concerns about how her supervisors
     had been treating her, became visibly upset, and, according to the Chief, made
     some disturbing comments, including that she worked in a toxic environment with
     toxic leadership and that she had written to her Congressman, asking “Must more
     blood [] be shed before changes occur?” 2 She asked the Chief if she recalled the


     2
       In that April 7, 2014 letter, the appellant stated that she was being targeted for
     mistreatment, harassed, and abused and that her life was in danger. She also asked “Is
     blood shed required to stop the abuse? I hope the answer is ‘No!’” IAF, Tab 8 at 35.
     She attached a newspaper article about the Fort Hood shooting, on which she had typed
     several sentences urging the Congressman to read her documents and stating, inter alia,
     that “thoughtless actions (or in-actions) taken by military leaders are often where the
     deadly tragedies begin” and “let’s stop the violence!” Id. at 36.
                                                                                           3

     shootings at Camp Lejeune and Fort Hood. 3 After the appellant left, because the
     appellant’s demeanor caused her concern, the Chief called her own supervisor,
     relating that the appellant had mentioned that her first- and second-level
     supervisors needed to be mindful or careful and leave her alone. At the Chief’s
     supervisor’s suggestion, the Chief began to prepare a memorandum for the record.
     The appellant returned to the Chief’s office on May 5, 2014, seeking to explain
     what she had meant by blood being shed, stating that her family was bleeding
     because of the issues with her pay. In the Chief’s view, the appellant was not
     upset this time, but rather serious and very resolved, and, because this made the
     Chief nervous, she contacted security. Id. at 33-34.
¶3           On June 16, 2014, the agency proposed to remove the appellant for Conduct
     Unbecoming        a Federal     Employee–making        inflammatory   and/or   menacing
     comments reasonably placing fellow employees in fear.            Id. at 28.    After the
     appellant submitted a written response, IAF, Tab 9 at 4-14, the agency issued a
     decision finding the charge sustained and warranting the appellant’s removal,
     IAF, Tab 8 at 22-23.
¶4           On appeal, the appellant claimed that her words were taken out of context
     and that she never threatened anyone, but instead was seeking to prevent
     outbreaks of violence at military installations. IAF, Tab 1. She argued that the
     charge was not properly “classified” and that removal was too severe a penalty,
     and she requested a hearing. Id. She later alleged that the agency’s action was in
     retaliation for her protected EEO activity. Hearing Transcript (HT) at 5.
¶5           In her initial decision, the administrative judge first found that the agency
     proved the charge of conduct unbecoming a Federal employee.               IAF, Tab 26,
     Initial Decision (ID) at 5-7.        She found that the appellant’s comments about
     bloodshed and the shootings at two other military installations implied violence
     towards the two management officials she blamed for her problems at work and

     3
         The latter event had occurred just a few weeks earlier.
                                                                                         4

     that they were an escalation of her attempts to get the agency to agree with her
     regarding the work schedule she wanted.        ID at 6.   The administrative judge
     further found that the appellant’s comments were examples of how a person can
     resort to violence when they have a concern that is not resolved, that the
     comments were inflammatory and/or menacing, and that they reasonably placed
     her fellow employees in fear. ID at 6-7. The administrative judge next found that
     there was a nexus between the appellant’s conduct and the efficiency of the
     service. ID at 7. In addressing the penalty, the administrative judge found that
     the deciding official thoroughly considered all of the relevant Douglas factors 4 in
     determining that removal was a reasonable penalty for the misconduct at issue, ID
     at 8, and, based on her own review of the Douglas factors, the administrative
     judge concluded that the agency-imposed penalty did not exceed the bounds of
     reasonableness, ID at 9. Finally, regarding the appellant’s claim of retaliation for
     protected EEO activity, the administrative judge found it undisputed that the
     appellant had filed EEO complaints of which her supervisors were aware, but that
     there was simply no evidence that the EEO activity had any impact on the
     agency’s decision, and that Title VII is not a shield for an employee’s
     misconduct.   ID at 9-10.     Accordingly, the administrative judge affirmed the
     agency’s action. ID at 1, 10.
¶6        The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3,
     and the appellant has submitted a reply to the agency’s response, PFR File, Tab 4.
¶7        On review, the appellant challenges as erroneous the administrative judge’s
     finding that the charge is sustained. PFR File, Tab 1 at 2-4. The appellant first
     questions the administrative judge’s reliance on the testimony of her supervisors
     that her comments were disturbing since neither was present when she made the

     4
       In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
     articulated a nonexhaustive list of factors, both aggravating and mitigating, that are
     relevant to the penalty determination in adverse action cases.
                                                                                      5

     comments. Id. at 3. However, inasmuch as the appellant has not denied making
     the statements, her supervisors’ reactions to them are no less valid simply because
     they did not hear them firsthand.      The appellant’s first-line supervisor, the
     proposing official, testified that, when he learned of the comments, he found them
     very disturbing, perceiving that they were directed at him and some of his staff.
     HT at 28-29.     The appellant’s second-line supervisor, the deciding official,
     testified that, in her view, the incident involved the safety and security of the
     facility and the patients for whom she is responsible and that she felt it was
     appropriate to immediately notify the authorities. HT at 59-60, 67.
¶8        The appellant also argues that the Chief to whom she made the comments
     testified that she reported them as a precaution, not because she thought they
     represented an immediate threat. PFR File, Tab 1 at 3. The testimony to which
     the appellant refers occurred during an EEO hearing.       HT at 20.   During the
     Board hearing, however, the Chief testified that she reported the comments to her
     supervisor and to the police because she did perceive a threat. Id. Because the
     agency did not charge the appellant with making a threat, the referenced
     discrepancy in the Chief’s testimonies is not significant.       She consistently
     described the appellant as upset, crying, visibly shaken, and very nervous during
     their meeting, HT at 13, and her own reaction as being very rattled, HT at 15, so
     much so that she called her supervisor and prepared a memorandum for the
     record, HT at 16. The Chief further testified that she remained concerned when
     the appellant returned to see her a few days later, that, after she left, the Chief
     asked a male colleague and her staff to let security know if the appellant again
     returned, and that she herself contacted security, an action she had never taken in
     her 25 years. HT at 17.
¶9        The appellant further argues on review that the administrative judge ignored
     testimony from two individuals who did not believe the appellant was threatening
     violence by her comments. PFR File, Tab 1 at 3-4. Those two witnesses were the
     Criminal Investigator from the Police Provost Marshal’s Office who determined
                                                                                           6

      that no “communicated threat” had been made, HT at 94, and a colleague of the
      appellant’s who did not perceive her written comments as a threat, but rather as a
      “normal” response to the “way she was being treated,” HT at 84.             First, the
      administrative judge’s failure to mention all of the evidence of record does not
      mean that she did not consider it in reaching her decision.               Marques v.
      Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776
      F.2d 1062 (Fed. Cir. 1985) (Table). In any event, the Criminal Investigator’s role
      was to determine whether the appellant had made a threat as defined and
      prohibited by Federal law, not to decide if there was cause to remove her from her
      position.   And, the appellant’s colleague is not in the appellant’s supervisory
      chain, and thus her position on the significance of the appellant’s comments is
      simply an opinion.
¶10         In sum, we agree with the administrative judge that the agency established
      the conduct unbecoming charge by proving that the appellant committed the acts
      in support of the broad label, Canada v. Department of Homeland Security,
      113 M.S.P.R. 509, ¶ 9 (2010), and therefore she has not shown that the
      administrative judge erred in sustaining the charge against her.
¶11         The appellant next argues on review that the agency violated her due
      process rights because the proposing official testified that the deciding official
      assisted him in writing the proposal notice. 5 PFR File, Tab 1 at 4-5. In fact, what
      the proposing official testified to was that, although he never saw it, he thought
      he learned about the appellant’s letter to Congressman Barrow from the deciding
      official. HT at 46-47. Because an employee’s due process rights pertain to ex
      parte information provided to, and known by, the deciding official, Solis v.
      Department of Justice, 117 M.S.P.R. 458, ¶ 7 (2012), the appellant’s claim


      5
        Ordinarily the Board will not consider a claim raised for the first time on review.
      Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). However, because
      the appellant asserts that this information was not known to her until the hearing, PFR
      File, Tab 1 at 5, we have considered it.
                                                                                         7

      regarding the proposing official does not support a violation.        The appellant
      further asserts that the deciding official was too involved in the case to render an
      impartial decision because she was a target of the appellant’s comments and knew
      that she had filed numerous EEO complaints naming her. PFR File, Tab 1 at 5.
      An employee does have a due process right to have an unbiased decision maker
      adjudicate her case. Martinez v. Department of Veterans Affairs, 119 M.S.P.R.
      37, ¶ 6 (2012). However the appellant has failed to assert specific allegations
      indicating that the agency’s choice of the deciding official made the risk of
      unfairness intolerably high. See id., ¶¶ 7-8 (explaining that a deciding official’s
      awareness of background information concerning the appellant, his concurrence
      in the desirability to take an adverse action, or his predisposition to impose a
      severe penalty does not disqualify him from serving as a deciding official on due
      process grounds); see also Norris v. Securities & Exchange Commission, 675 F.3d
      1349, 1354 (Fed. Cir. 2012) (finding that it is not required that a deciding official
      be unfamiliar with the employee, the facts of the case, or the employee’s prior
      conduct).
¶12         Finally, the appellant challenges the administrative judge’s finding that
      removal is a reasonable penalty for the sustained charge. PFR File, Tab 1 at 5-9.
      In this regard, the appellant first contends that her alleged misconduct was
      mischaracterized as conduct unbecoming a Federal employee, which carries a
      penalty of a 1-day suspension to removal for a first offense, whereas it should
      have been characterized as creating a disturbance resulting in an adverse effect on
      morale, which carries a penalty from a written reprimand to a 5-day suspension
      for a first offense, or threatening or attempting to inflict bodily harm without
      bodily contact, which carries a penalty from a written reprimand to a 14-day
      suspension for a first offense. Id. at 5-6; IAF, Tab 5, Appellant’s Exhibit Z at
      13-19. It is well established, however, that the Board is required to review the
      agency’s decision on an adverse action solely on the grounds invoked by the
                                                                                       8

      agency and may not substitute what it considers to be a more adequate or proper
      basis. Walker v. Department of the Army, 102 M.S.P.R. 474, ¶ 4 (2006).
¶13        The appellant further argues that, in determining to impose removal, the
      deciding official failed to consider mitigating factors. PFR File, Tab 1 at 6-9.
      Where, as here, the Board sustains an agency’s charge, it will defer to the
      agency’s penalty determination unless the penalty exceeds the range of allowable
      punishment specified by statute or regulation, or unless the penalty is “so harsh
      and unconscionably disproportionate to the offense that it amounts to an abuse of
      discretion.” Batten v. U.S. Postal Service, 101 M.S.P.R. 222, ¶ 9 (quoting Parker
      v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987)), aff’d, 208 F. App’x
      868 (Fed. Cir. 2006). That is because the employing agency, and not the Board,
      has primary discretion in maintaining employee discipline and efficiency.
      Balouris v. U.S. Postal Service, 107 M.S.P.R. 574, ¶ 6 (2008), aff’d, No.
      2008‑3147, 2009 WL 405827 (Fed. Cir. 2009); Batten, 101 M.S.P.R. 222, ¶ 9.
      The Board will not displace management’s responsibility, but instead will ensure
      that managerial judgment has been exercised properly. Balouris, 107 M.S.P.R.
      574, ¶ 6; Batten, 101 M.S.P.R. 222, ¶ 9.       Mitigation of an agency-imposed
      penalty is appropriate only where the agency failed to weigh the relevant factors
      or where the agency’s judgment clearly exceeded the limits of reasonableness.
      Balouris, 107 M.S.P.R. 574, ¶ 6; Batten, 101 M.S.P.R. 222, ¶ 11. The deciding
      official need not show that he considered all the mitigating factors, and the Board
      will independently weigh the relevant factors only if the deciding official failed
      to demonstrate that he considered any specific, relevant mitigating factors before
      deciding on a penalty. Balouris, 107 M.S.P.R. 574, ¶ 6; Batten, 101 M.S.P.R.
      222, ¶ 11.
¶14        In determining to uphold the proposed penalty of removal, the deciding
      official weighed the Douglas factors, finding that:       the appellant’s remarks
      constituted a serious offense, causing reasonable fear to the Chief and her
      supervisors; despite the appellant’s 22 years of civilian service, her performance
                                                                                       9

      had been unreliable during the rating year; she had lost the confidence of her
      supervisor and of key leadership; removal is within the range of penalties under
      the agency’s Table of Penalties; the appellant’s conduct reflected poorly on the
      morale of her coworkers; common sense dictates that her menacing comments
      were not acceptable, especially given the proximity in time to the mass shooting
      she referenced, and that, due to the sensitive nature of her comments, security
      was contacted and she was questioned by the Provost Marshal; her comments
      exemplify her inability to work with others and a lack of respect for authority and
      the safety and well-being of coworkers and patients, such that there was no
      reasonable potential for her rehabilitation; and there were no mitigating
      circumstances sufficient to overcome the seriousness of her misconduct, and no
      alternative means to deter such misconduct in the future. IAF, Tab 8 at 24-25;
      HT at 61-63.
¶15        On review, the appellant asserts that the deciding official failed to consider
      the fact that she had significant service with no prior discipline, that there was
      tension between her and her supervisor, that she had sought, but been denied,
      “medical accommodation,” that the incident was an isolated one, and that her
      performance was good or, in the alternative, not a relevant consideration. PFR
      File, Tab 1 at 6-9.   As noted, however, the deciding official did consider the
      appellant’s 22 years of service.    IAF, Tab 8 at 24.      Although she did not
      acknowledge the tension that may have existed between the appellant and her
      supervisors, given that her numerous EEO complaints specifically named them,
      the deciding official did find that there were no mitigating circumstances
      sufficient to overcome the seriousness of the appellant’s misconduct.           Id.
      Further, the record reflects that the agency did not deny, but rather determined to
      hold in abeyance, the appellant’s request for accommodation, pending her return
                                                                                     10

to work, 6 IAF, Tab 5, Exhibit V at 38, and that, shortly afterwards, the agency
proposed her removal. The fact that the appellant’s misconduct was an isolated
incident does not necessarily support the imposition of a lesser penalty. See, e.g.,
Wiley v. U.S. Postal Service, 102 M.S.P.R. 535, ¶¶ 16-18 (2006), aff’d,
218 F. App’x 1001 (Fed. Cir. 2007).        And, because the employee’s past work
record is a factor for consideration in a penalty determination, Douglas, 5
M.S.P.R. at 305, it was not inappropriate for the deciding official to mention that
the appellant’s performance had been unreliable, IAF, Tab 8 at 24, HT at 30, 35-
36. In sum, we find that the agency weighed the relevant factors and that its
judgment did not exceed the limits of reasonableness.          Therefore, its penalty
determination is entitled to deference. Balouris, 107 M.S.P.R. 574, ¶ 6; Batten,
101 M.S.P.R. 222, ¶ 11.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS 7
      You have the right to request further review of this final decision.

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

6
 Shortly after the incident in question, the appellant was out of work on sick leave for
approximately 6 weeks. HT at 52 (testimony of proposing official).
7
   In the initial decision, the administrative judge provided the appellant with
nonmixed‑case appeal rights. ID at 11, 14-15. Because the appellant raised retaliation
for protected EEO activity as an affirmative defense, however, this is a mixed-case
appeal. Caros v. Department of Health & Human Services, 122 M.S.P.R. 231, ¶ 20
(2015). Accordingly, we have provided the proper appeal rights in this Final Order.
                                                                                11

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 U.S. 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 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
                                                                           12

representation by a court‑appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                         ______________________________
                                       William D. Spencer
                                       Clerk of the Board
Washington, D.C.
