                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                      2007-3171



                                 JUDY C. TEXEIRA,

                                                            Petitioner,

                                          v.


                        UNITED STATES POSTAL SERVICE,

                                                            Respondent.



      Morris E. Fischer, Law Office of Morris E. Fischer, of Bethesda, Maryland,
argued for petitioner.

       Marla T. Conneely, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. On
the brief were Jeanne E. Davidson, Director; Todd M. Hughes, Deputy Director; and
Robert C. Bigler, Trial Attorney.


Appealed from: Merit Systems Protection Board
                        Note: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit


                                       2007-3171

                                   JUDY C. TEXEIRA,

                                                 Petitioner,

                                            v.

                         UNITED STATES POSTAL SERVICE,

                                                 Respondent.



   Petition for Review from the Merit Systems Protection Board in SF0752060072-I-2

                           _________________________

                           DECIDED: February 28, 2008
                           _________________________


Before BRYSON and MOORE, Circuit Judges, and WOLLE, Senior District Judge. *

PER CURIAM.

                                       DECISION

      Judy Texeira (Texeira) appeals from the decision of the Merit Systems Protection

Board (Board), Docket No. SF0752060072-I-2, that upheld her demotion by the United

States Postal Service (agency) from her position of EAS-17 customer services supervisor

at the Modesto Main Post Office to a part-time entry level position at the Post Office in


      *
        Honorable Charles R. Wolle, Senior District Judge, United States District Court for
the Southern District of Iowa, sitting by designation.
Ripon, California. Texeira contends the Board erred in two respects. First, she contends

the Board should not have split a single charge against her, enabling the Board to dismiss

one charge but discipline her on a second lesser charge. Second, Texeira contends the

Board imposed excessive punishment for the separate charge. We conclude the Board

properly considered two charges, dismissing the more serious but upholding the lesser

charge of timekeeping irregularity. We vacate the penalty on the lesser charge and remand

this case to the Board to impose discipline that considers only Texeira=s conduct that

proved the less serious charge.

                                    BACKGROUND

      In January of 2005, Texeira was supervisor of five window clerks and several floor

clerks, and she was also finance supervisor at the Modesto Main Post Office. She had

been a supervisor for about seven years, a postal employee for about nineteen years, and

had no prior record of misconduct. On January 26, however, Texeira incorrectly posted

160 hours of annual leave for an employee she was supervising. The employee had not

yet earned the leave, never earned it, and later returned the leave pay to the agency.

When the agency learned about and investigated Texeira=s incorrect timekeeping entry, the

manager of customer service at the Modesto Main Post Office served her with a notice of

removal from federal service. The initial charge was a simple statement that she had

incorrectly posted the unearned leave for an employee she was supervising. That notice of

removal was revised on August 2, 2005 with a more detailed description of the conduct

involved in her incorrect posting of annual leave, including a listing of several Postal

Service rules and regulations that she allegedly had violated. The notice stated: ACharge:

Unacceptable Conduct: Falsification in Recording Time/Failure to Follow Proper




2007-3171                                   2
Timekeeping Procedures.@        When Texeira protested, the agency selected as its

decisionmaker on the matter Richard Sarno, Human Resources Manager of the

Sacramento District. Sarno conducted his own investigation and then on September 19,

2005 issued his Letter of Decision. He found the August 2 charges Afully supported by the

evidence.@ In his decision on discipline, he wrote and highlighted that removal from federal

service would be Atoo severe.@ He decided instead to reduce her in grade and pay to a

part-time position at the much smaller postal facility in Ripon, California.

                                    BOARD DECISION

       On September 20, 2006, an Administrative Judge (AJ) held a plenary hearing, then

filed his initial decision. The Board denied Texeira’s petition for review making the AJ’s

decision the final decision in the matter. The AJ considered the agency charge as two

charges, one for falsification of time records and the other for failure to follow proper

timekeeping procedures. The AJ found the agency did not prove falsification but did prove

the lesser charge. The AJ then upheld the same substantial penalty the agency had

imposed for both charges

       In his decision the AJ first addressed Texeira=s argument that the agency had

asserted a single charge against her that could not be divided into a greater charge and a

lesser charge. The AJ held, based on Walker v. Department of the Navy, 59 M.S.P.R. 309,

318 (1993), that a single act of misconduct could be read as presenting multiple charges,

so long as each required different elements of proof. Noting that the agency decisionmaker

Sarno testified at the Board hearing that he considered the agency=s allegation to be a

single charge, the AJ nevertheless decided the agency=s charge label gave rise to both the

alleged falsification of recorded earned leave, and a separate alleged failure to follow




2007-3171                                     3
proper timekeeping procedures. The AJ wrote that proof of an intent to deceive was an

element of the charge of AFalsification in Recording Time,@ but that an intent element was

not required to prove failure to comply with proper timekeeping procedures. He dismissed

the falsification charge as unproved, but found the agency had proved the second charge.

       Having found the agency proved only the charge of failure to record an entry

correctly, the AJ upheld the sanction of demoting Texeira to an entry level position at a post

office outside Modesto. The AJ explained that the decisionmaker Sarno gave adequate

consideration to all relevant penalty factors and wrote:

       [I]t is apparent from the deciding official=s analysis that he considered
       demotion to be appropriate even if [Texeira] had not attempted to defraud or
       deceive the agency. He testified that he Adid not find that [Texeira]
       intentionally tried to defraud@ the agency.

This gives rise to Ms. Texeira=s second ground for appeal, excessiveness of the penalty.

                                       DISCUSSION

       We review the Board=s decision under the authority of 5 U.S.C. ' 7703(c) (2000),

which provides that the agency=s action must be sustained unless it is found to be: (1)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2)

obtained without procedure required by law, rule, or regulation having been followed; or (3)

unsupported by substantial evidence. See Kline v. Dep=t of Transp., 808 F.2d 43, 44 (Fed.

Cir. 1986); Hayes v. Dep=t of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

       On the charge separation issue, we agree with the AJ=s analysis and conclusion.

The AJ correctly decided that the agency=s charge label gave rise to two separate charges,

one falsification of recorded earned leave, and the other the failure to follow proper

timekeeping procedures. Plainly the charge of AFalsification in Recording Time@ required

proof of an intent to deceive, an element not required to prove timekeeping or record



2007-3171                                     4
keeping errors. Consequently, the AJ properly analyzed the two types of timekeeping

offenses separately and had the authority to find the agency had proved the lesser charge

but not the charge requiring intent. Moreover, the AJ carefully explained the factors

considered in addressing Texeira=s credibility that was critical in deciding the intent issue.

The AJ’s finding that Texeira had testified truthfully that she did not intend to defraud or

deceive the agency when she posted annual leave for a fellow employee is supported by

substantial evidence. The circumstances corroborated her explanation. In addition, the AJ

found the agency had not proved that she Awas guilty of falsification in recording time.@ The

AJ did, however, well document the proof that Texeira had not verified the incorrect annual

leave she had posted, noting that Texeira had said she had made an error and admitted

she Amade a mistake.@ We conclude that the AJ’s determination that the agency proved

the lesser charge of failing to comply with agency timekeeping procedures is supported by

substantial evidence. The description in the charging label plainly presented both a more

serious charge of Afalsification@ and a less serious charge concerning a timekeeping

violation.

       We find merit in Texeira=s second contention that the penalty must be reconsidered

by the agency in light of the Board=s dismissal of the falsification charge. When falsification

was not proved, the original penalty was too severe. We do not lightly review agency

disciplinary decisions. These are necessary to promote the efficiency of government

service. Parker v. U.S. Postal Serv., 819 F.2d 1113, 1116 (Fed. Cir. 1987). We give

deference to the agency=s judgment unless a penalty violates a statute or regulation or is

Aso harsh and unconscionably disproportionate to the offense that it amounts to an abuse

of discretion.@ Villela v. Dep=t of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984) (citing




2007-3171                                     5
Power v. United States, 531 F.2d 505 (Ct. Cl. 1976)). The Court has written that our review

of M.S.P.B. decisions must allow the Board Awide latitude in fulfilling its obligation to review

agency disciplinary actions.@ U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6-7 (2001) (AIt is not

for the Federal Circuit to substitute its own judgment for that of the Board.@).

       But our deference to the Board=s wide latitude is not unlimited. Agencies and the

Board are obligated responsibly to consider and balance relevant factors for each individual

case before selecting an appropriate penalty; and the Board has listed twelve factors—so

called Douglas factors—to assure that the punishment Astrikes a responsible balance within

tolerable limits of reasonableness.@ Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06

(1981). Pertinent here, the Board in Douglas wrote:

               Whenever the agency=s action is based on multiple charges some of
       which are not sustained, the presiding official should consider carefully
       whether the sustained charges merited the penalty imposed by the agency.
       In all cases in which the appropriateness of the penalty has been placed in
       issue, the initial decision should contain a reasoned explanation of the
       presiding official=s decision to sustain or modify the penalty, adequate to
       demonstrate that the Board itself has properly considered all relevant factors
       and has exercised its judgment responsibly.




2007-3171                                      6
Id. at 306. Moreover, in Kline v. Department of Transportation, 808 F.2d at 45, our court

addressed, as we again do here, the question whether the Board correctly upheld a penalty

when only one of several charges against an employee had been proved. We vacated the

penalty and remanded the case to allow the agency=s deciding official to determine an

appropriate penalty for the single proved charge. We there emphasized that the deciding

official made no finding about what the penalty would be if fewer than all charges were

proved. We wrote: A[The] record does not demonstrate that the presiding official identified,

balanced and then considered the relevant Douglas factors in determining that the

sustained charge warranted the penalty imposed.@ 808 F.2d at 46.

       Similarly, the record here does not support the AJ=s statement that the

decisionmaker Sarno Aconsidered demotion to be appropriate even if [Texeira] had not

attempted to defraud or deceive the agency.@ Sarno did not so testify, neither did he write

nor imply in his decision that he would have imposed the same discipline for a mere

timekeeping error. Sarno testified: AI was losing trust and faith in her.@ And he testified: AI

believe she did it on purpose to do something for a friend and she made a huge mistake.@

And he testified: AShe paid somebody that didn=t deserve to get paid. I think she did it on

purpose. She did it for a friend and it was wrong.@

       This record demonstrates a decisionmaker imposing a severe penalty because he

believed the agency had proved Texeira guilty of purposeful falsification, not just the failure

to make a correct entry of vacation time. The agency has not yet articulated what less

severe sentence should be imposed when it proved only a much less severe charge. The

first of the twelve factors listed in the Board=s Douglas decision is Athe nature and

seriousness of the offense.@      The agency decisionmaker gave no rational basis for




2007-3171                                     7
imposing a severe sentence on a less serious charge. When that factor was not properly

considered, the penalty imposed was disproportionate to the proved charge and

unsupported by substantial evidence. We remand for reconsideration of the penalty to be

imposed on the lesser charge only.

                                     CONCLUSION

      We affirm that part of the Board=s final decision that upheld the agency=s charge that

Ms. Texeira failed to follow proper timekeeping procedures, but we vacate the Board’s final

decision that upheld the agency=s penalty of demotion to a part-time position on that

charge. The case is remanded so an appropriate penalty can be imposed based only on

the improper timekeeping charge.




2007-3171                                   8
