Bal v. Department of Navy

Decision Date12 September 2016
Docket NumberSF-0752-15-0442-I-1
CourtMerit Systems Protection Board
PartiesDAVID BAL, Appellant, v. DEPARTMENT OF THE NAVY, Agency.



David Bal, Ridgecrest, California, pro se.

Kymberley McEntee, China Lake, California, for the agency.

BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

¶1 The appellant has filed a petition for review of the initial decision, which sustained his 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 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 During the period at issue in this appeal, the appellant, a Materials Engineer, was assigned to two work sites: his regular work location, a building where he completed administrative tasks; and a lab in another building where, on a day-to-day basis, he worked on assignments with a team to which he was then assigned. In late October 2014, his supervisor for administrative purposes learned from his team supervisors that the appellant had not been reporting to his assigned duty station in the lab and that they had seen little of him since June 2014. When confronted, the appellant explained that he had not timely delivered the project, that he had not been working on a regular basis, and that he had had spotty attendance, sometimes remaining at home during work hours, all because he had lost focus due to problems with his marriage. He acknowledged, however, that, on these occasions, he had coded his time and attendance records as being at work. The appellant's supervisor informed him that his actions were unacceptable and that resources were available to him through the Employee Assistance Program (EAP). In early November, the appellant began to report to the lab regularly and work on the project he had been assigned in June. In December 2014, his supervisor investigated the appellant's attendance between June and November[2]and how he had reported it, and the supervisor decided to propose disciplinary action. The appellant apologized for having failed to perform his job for the months at issue, acknowledged that he had not been at work for 405 hours for which he had claimed time on his work report, and offered to pay back the time with sick leave annual leave, and/or advanced leave.[3]Initial Appeal File (IAF) Tab 48, Initial Decision (ID) at 2-4.

¶3 The agency removed the appellant based on improper coding of his time and attendance records and absence without leave (AWOL). The agency set forth 21 dates on which the appellant had coded himself as at work, but was not, and 29 dates on which he had coded himself as at work and showed only an entry time, but had no work activity during that time. The agency concluded that the appellant had in fact improperly coded more than 450 hours on his time and attendance records from June to November 2014, and that, because he was not at work and his absence was not approved, he was AWOL for that time. IAF, Tab 4 at 61-65, 17-23.

¶4 On appeal, the appellant acknowledged his actions but claimed that he had been suffering from depression, that he had submitted medical documentation that the agency had ignored and that, when he learned about the Family and Medical Leave Act (FMLA or the Act), he had asked for leave under its provisions, which the agency had denied. He also noted that he did return to normal attendance after counseling. IAF, Tab 1 at 5. He requested a hearing. Id. at 2. During adjudication, the appellant raised the affirmative defense of harmful procedural error and/or that the agency's action was not in accordance with law. IAF, Tab 6. He later claimed that his mental condition was much improved and that he is “able to return to doing good work now.” IAF, Tab 27 at 7.

¶5 After convening the requested hearing, IAF, Tab 40, the administrative judge issued an initial decision, Id. He found that the agency proved by preponderant evidence that the appellant improperly coded his time and attendance records, ID at 6-7, and was AWOL because he admitted that he was absent from work for at least 405 hours and had not requested leave such that his absence was unauthorized, ID at 8-9. The administrative judge rejected the appellant's claim regarding the FMLA. ID at 10-13. The administrative judge considered the medical evidence the appellant submitted before and after his removal but found that it was insufficient to show that he was incapacitated during the relevant time period and that, even if he had provided sufficient medical evidence on this point, he did not have enough leave to cover the admitted period of absence. ID at 13-14.

¶6 In considering the appellant's claims of harmful procedural error, the administrative judge found that neither the agency's failure to provide the appellant with information regarding the investigation before proposing his removal nor its decision to place him on administrative leave were errors in the application of the agency's procedures, ID at 15, and that he did not demonstrate any harm in the agency's allegedly including misinformation in the notice of proposed removal, ID at 15-16. The administrative judge further found no error by the agency regarding what the appellant described as the failure of its officials to understand his mental health problem and that even if the lack of understanding constituted an error, he did not show that it was harmful. ID at 16. Similarly, the administrative judge found no harmful error in the agency's failure to more promptly address the appellant's attendance problems, ID at 16-17, or in the deciding official's alleged misunderstanding of his reply to the proposal notice, ID at 17.

¶7 The administrative judge then addressed the appellant's claim of harmful procedural error regarding the deciding official's consideration of outside information in reaching her decision, specifically, her contacting human resources to confirm whether a removal was consistent with the penalty the agency generally imposed in similar situations. In considering whether the appellant's claim was a potential violation of his due process rights, the administrative judge found that, although the information provided was new and not presented to the appellant, it merely confirmed the deciding official's ultimate conclusion and was not of the type likely to result in undue pressure upon her to impose removal. ID at 17-19. The administrative judge further found that the deciding official's contact with human resources was not an error and that, in any event, the appellant had not shown harm. ID at 19-20.

¶8 After finding a nexus between the sustained misconduct and the efficiency of the service, ID at 20-21, the administrative judge found that the deciding official properly considered the relevant factors and that removal was within the tolerable limits of reasonableness for the sustained charges. ID at 21-26. Accordingly, the administrative judge affirmed the agency's action. ID at 1, 26.

¶9 The appellant has filed a petition for review, Petition for Review (PFR) File, Tabs 1-2, the agency has responded in opposition, PFR File, Tab 4, and the appellant has replied thereto, PFR File, Tab 5.

¶10 On review, the appellant disputes the administrative judge's findings on the AWOL charge, [4]arguing that he submitted evidence to show that he was incapacitated by severe depression during the period in question and that the agency was aware of his illness but failed in its responsibility to request further documentation and otherwise took no steps to alleviate his condition, callously choosing to punish him rather than supporting treatment for his condition. PFR File, Tab 1 at 5-8.

¶11 An AWOL charge will not be sustained if an appellant presents administratively acceptable evidence showing that he was incapacitated for duty during the relevant time period if he has sufficient sick leave to cover the period of absence. Valenzuela v. Department of the Army, 107 M.S.P.R 549, ¶ 9 (2007). The administrative judge considered the three reports the appellant submitted from the psychologist to whom he was referred from the agency's EAP, the first two of which were prepared just before and just after the agency proposed the appellant's removal, IAF, Tab 4 at 30, 51, and the third of which was prepared during adjudication, prior to the hearing, IAF, Tab 39 at 4; See Wesley v. U.S. Postal Service, 94 M.S.P.R. 277, ¶ 18 (2003) (noting that the Board may properly consider medical evidence the appellant failed to provide to the agency). The administrative judge found that the reports did not establish the appellant's incapacitation during the period in question. ID at 13-14. Although the reports state that the appellant suffers from major depression as a result of his marital problems and related feelings of...

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