                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DARLENE W. LOW,                                 DOCKET NUMBER
                  Appellant,                         DA-0752-14-0086-I-1

                  v.

     DEPARTMENT OF ENERGY,                           DATE: September 24, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Frederick C. Low, Esquire, Sixes, Oregon, for the appellant.

           Kathy L. Black, Esquire, Portland, Oregon, 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
     sustained the appellant’s 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2         The agency removed the appellant from the GS-14 Safety and Occupational
     Manager position based on the charge of being absent without leave (AWOL)
     from January 28, 2013, through September 30, 2013. Initial Appeal File (IAF),
     Tab 17, Subtab 4b at 327, 111, 117. On appeal, the administrative judge found
     that the agency proved the charge. IAF, Tab 49, Initial Decision (ID) at 2. She
     also found that the appellant failed to prove her affirmative defense of harmful
     procedural error. The administrative judge found that the appellant showed that
     the agency had a policy that, when taking a removal action, the deciding official
     should be a higher level official in the chain of command than the proposing
     official and that the deciding official in the appellant’s case was at the same level
     and in a different chain of command from the proposing official. ID at 3. The
     administrative judge also found that the appellant failed to show that the
     procedural error was harmful because the individual who would have been the
     deciding official (had the agency followed its policy) testified at the hearing that,
     if he had served as the deciding official, he would have removed the appellant.
     ID at 3. The administrative judge further found that the appellant failed to prove
     her affirmative defenses of retaliation for filing equal employment opportunity
                                                                                     3

     (EEO) complaints, and sex and age discrimination.        ID at 3-6.   Finally, the
     administrative judge found that removal for the sustained charge was reasonable
     and promoted the efficiency of the service. ID at 6-8.
¶3         In her petition for review, the appellant contends that the administrative
     judge erred in finding that the agency did not commit harmful procedural error.
     Petition for Review (PFR) File, Tab 1. She asserts, as she did below, that the
     agency committed harmful error by failing to follow the agency’s policy that the
     deciding official be of a higher grade in the chain of command than the proposing
     official.
¶4         Harmful procedural error is defined as error by an agency in the application
     of its procedures that is likely to have caused the agency to reach a conclusion
     different from the one it would have reached in the absence or cure of the error.
     5 C.F.R. § 1201.56(c)(3). Harmful error cannot be presumed; an agency error is
     harmful only where the record shows that the procedural error was likely to have
     caused the agency to reach a conclusion different from the one it would have
     reached in the absence or cure of the error.     Bair v. Department of Defense,
     117 M.S.P.R. 374, ¶ 8 (2012). The appellant bears the burden of proving her
     claim of harmful error by preponderant evidence. 5 C.F.R. § 1201.56(a)(2)(iii),
     (b)(1).
¶5         Here, the appellant did not respond to the notice of proposed removal. IAF,
     Tab 17, Subtab 4b at 111. She called the agency official, who would properly
     have been the deciding official under the agency’s policy, as her witness at the
     hearing. IAF, Tab 39. As the administrative judge found, that official testified
     that he was aware that the appellant had been AWOL and had told the agency that
     she was not going to return to work. ID at 3. He testified further that a basic
     condition of employment is that an employee must come to work and emphasized
     that, if he had been the deciding official, he would have removed the appellant.
     ID at 3.
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¶6        The appellant objects to this testimony, alleging that it was prompted by a
     person apparently acting as an agency technical advisor during the course of the
     hearing. The Board has long recognized the appropriateness of the presence of a
     technical advisor during the course of a hearing.     See Day v. Department of
     Housing & Urban Development, 50 M.S.P.R. 680, 682-83 (1991), aff’d, 975 F.2d
     870 (Fed. Cir. 1993) (Table).    Moreover, the Board has found no error in a
     technical advisor consulting with agency counsel and witnesses during the
     hearing. See Jeffers v. Veterans Administration, 40 M.S.P.R. 567, 571-72, aff’d,
     892 F.2d 1050 (Fed. Cir. 1989) (Table). Even assuming that the administrative
     judge erred in failing to disallow such consultation, the appellant has not shown
     how her rights were prejudiced thereby.     The appellant has not identified any
     evidence that she was precluded from presenting due to the alleged actions of the
     technical advisor.   Therefore, she has shown no basis upon which the Board
     should disallow the testimony of the witness from being considered.           See
     Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (the
     administrative judge’s procedural error is of no legal consequence unless it is
     shown that it has adversely affected a party’s substantive rights). Under these
     circumstances, considering the testimony of the witness, who the appellant admits
     would have been the proper deciding official, we find that the appellant failed to
     meet her burden to show that the agency’s violation of its policy constituted
     harmful error.
¶7        The appellant next argues as she did below that her AWOL was justified
     because the agency had breached a 1999 settlement agreement in an EEO
     complaint. The settlement agreement provided, inter alia, that the agency would
     place the appellant in a GS-14 position, giving her all the pay and benefits
     associated with that grade level. The appellant asserts that, although the agency
     had continuously given her the pay and benefits of a GS-14 level, the agency
     breached the agreement by failing to give her duties that were classified at the
                                                                                         5

      GS-14 level, instead giving her duties that were classified at only the GS-12
      level.
¶8             To the extent the appellant is challenging the validity of the settlement
      agreement, the Board lacks jurisdiction over that claim because the settlement
      agreement was not reached during the course of an appeal to the Board and was
      not made part of a Board record. See, e.g., Wobschall v. Department of the Air
      Force, 43 M.S.P.R. 521, 523, aff’d, 918 F.2d 187 (Fed. Cir. 1990) (Table).
      Further, to the extent that the appellant is raising a separate claim that the GS-14
      Safety and Occupational Manager position to which she was assigned was not
      classified at the GS-14 level because of a classification appeal decision rating the
      position at a GS-12 level, the Board lacks jurisdiction to review such a
      classification decisions. See Crum v. Department of the Navy, 75 M.S.P.R. 75, 81
      (1997).
¶9             The appellant also reasserts her claim that the agency removed her in
      retaliation for filing EEO complaints. For an appellant to prevail on a contention
      of illegal retaliation, she has the burden of showing that: (1) she engaged in a
      protected activity; (2) the accused official knew of the protected activity; (3) the
      adverse action under review could have been retaliation under the circumstances;
      and (4) there was a genuine nexus between the alleged retaliation and the adverse
      action. See Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir.
      1986).
¶10            The administrative judge carefully considered the appellant’s allegations of
      retaliation. As she found, both the proposing official and the individual, who
      would have been the deciding official under the agency’s policy that the deciding
      official must be higher graded than the proposing official, were aware that the
      appellant had filed EEO complaints. ID at 4. She also found that the proposing
      official testified that he took the action because the appellant had been AWOL for
      over 6 months, and, although she was given every opportunity to return to her
      position, she consistently refused to do so. ID at 4-5. The administrative judge
                                                                                     6

      found, moreover, that the individual, who would properly have been the deciding
      official, stressed in his testimony that he would have removed the appellant
      because coming to work, which the appellant failed to do, is a basic condition of
      employment.   Implied in the administrative judge’s findings is that she found
      these witnesses to be credible.       The Board 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. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .
      We therefore find that the administrative judge properly found that there was no
      genuine nexus between the alleged retaliation and the adverse action.        See
      Warren, 804 F.2d 654, 656-58.
¶11        The appellant also asserts that the removal action does not promote the
      efficiency of the service. We disagree. Removal is warranted in response to the
      appellant’s significant period of unauthorized absence from duty because of its
      obvious disruption to the efficiency of the service. See Desiderio v. Department
      of the Navy, 4 M.S.P.R. 84, 85 (1980) (unauthorized absence from duty is proper
      grounds for removal since by its very nature it disrupts the efficiency of the
      service). We also agree with the administrative judge that the agency proved that
      removal is a reasonable penalty under the circumstances. See Foreman v. U.S.
      Postal Service, 89 M.S.P.R. 328, ¶ 17 (2001) (being AWOL for 16 days is
      serious); see also Maddux v. Department of the Air Force, 68 M.S.P.R. 644,
      645-46 (1995) (holding that removal is a reasonable penalty for approximately 2
      weeks of AWOL, despite the fact that there were mitigating factors, including the
      employee’s length of service and his personal problems).

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

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
                                                                                  8

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.      See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




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