UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHERILYN L. TILLMAN,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DA-0752-13-2534-I-1

DATE: May 18, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Sherilyn L. Tillman, Muskogee, Oklahoma, pro se.

Jacob B. Nist, Austin, Texas, 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 

affirmed 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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. Except as 

expressly MODIFIED by this Final Order to find that the agency failed to prove a 

specification of the charge of lack of candor and a number of the specifications of 

the charge of absence without leave (AWOL), we AFFIRM the initial decision. 

¶2 The agency removed the appellant from the GS-6 position of Program 

Support Assistant based on the following charges: (1) willful use of a 

government owned vehicle (GOV) for other than official purposes; 

(2) unauthorized use of a GOV; (3) disrespectful conduct (three specifications); 

(4) inappropriate conduct; (5) failure to follow instructions (four specifications); 

(6) lack of candor (two specifications); and (7) AWOL (eight specifications). 

Initial Appeal File (IAF), Tab 5 at 25, 28, 69. The appellant appealed the 

agency’s action, denying that she committed the charged misconduct and alleging 

that the agency’s action was discrimination on the bases of age, religion, race, 

and retaliation for her prior equal employment opportunity (EEO) activities. IAF, 

Tab 1. The appellant requested a hearing that was held on December 5, 2013. 

IAF, Tab 17.

¶3 Based on the record, the administrative judge found that the agency failed 

to meet its burden to prove charge (1), willful use of a GOV for other than 

official purposes, by preponderant evidence. IAF, Tab 22, Initial Decision (ID) at

3-9. However, she found that the agency met its burden to prove that the 
3

appellant did not have authorization to use the GOV that she drove to attend an 

Employee Assistance Program (EAP) meeting on April 9, 2013, thus proving 

charge (2).

¶4 The administrative judge also found that the agency established that on 

March 19, 2013, the appellant was disruptive and unprofessional during a staff 

meeting, that on March 4, 2013, she interrupted and spoke over her supervisor 

during a meeting about how the appellant was to perform her duties, and that on 

February 28, 2013, she told her supervisor that she was just beginning an 

assignment that she had received 2 weeks earlier. ID at 9-12. Thus, the 

administrative judge found that the agency proved the three specifications of 

charge (3), disrespectful conduct.

¶5 The administrative judge found not credible the appellant’s denial that on 

March 7, 2013, she loudly stated “Oh Lord, there has got to be a better way,” and 

other words to that effect, and that such statements are inappropriate when made 

in the manner and setting of the appellant’s work station. ID at 12-13. Thus, the 

administrative judge found that the agency proved charge (4), inappropriate 

conduct.

¶6 The administrative judge found that the agency established that on 

March 19, 2013, the appellant failed to provide her supervisor with the amount 

spent on replacing linen in 2012 by the date specified, that on February 15, 2013, 

she failed to use the proper spreadsheet to assist in completing a work order, that 

on February 11, 2013, she failed to provide her supervisor with the blank vendor 

form that had been requested, and that on February 5, 2013, she refused to 

complete a purchase order. ID at 13-20. Thus, the administrative judge found 

that the agency proved charge (5), failure to follow instructions.

¶7 The administrative judge found that on April 10, 2013, the appellant told 

her supervisor that she did not know what an EAP meeting was about even though 

the appellant herself had scheduled the meeting, and on March 14, 2013, she 

provided a statement signed by her physician’s nurse indicating that she would be 
4

unable to work from March 19 through March 28, 2013, with no explanation of 

why she would be incapacitated. ID at 20-23. Thus, the administrative judge 

found that the agency proved both specifications of charge (6), lack of candor. 

¶8 The administrative judge found that the agency established that on 

April 10, 2013, the appellant was away from her place of duty for 11⁄2 hours 

without authorization, and that from March 19, 2013, through March 27, 2013, 

the appellant was away from the workplace without authorization because she had 

not provided administratively acceptable evidence to support her absence. ID at 

23-25. Thus, the administrative judge found that the agency had proved all the 

specifications of charge (7), AWOL.

¶9 Additionally, the administrative judge found that the appellant failed to 

prove her affirmative defenses that the agency discriminated against her on the 

bases of race, religion, and age, and that she failed to prove retaliation for 

engaging in EEO activity. ID at 25-29. Further, the administrative judge found 

that the penalty was reasonable for the sustained misconduct and she affirmed the 

appellant’s removal. ID at 29-31. 

¶10 With her petition for review, the appellant submits an April 1, 2014 

decision from the Office of Workers’ Compensation Programs (OWCP) finding 

that her absences from March 19, 2013, through March 27, 2013, were related to 

a work-related traumatic injury that she suffered in a car accident on 

August 16, 2012. Petition for Review (PFR) File, Tab 2. 

¶11 Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted 

for the first time with the petition for review absent a showing that it was 

unavailable before the record was closed despite the party’s due diligence. 

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Here, the 

administrative judge informed the parties that she intended to close the record at 

the end of the hearing. IAF, Tab 5. She stated also that no evidence on a 

jurisdictional issue filed after the record closed will be accepted unless it is new 

and material evidence. Id. The OWCP decision did not relate to a jurisdictional 
5

issue. Thus, it was not the type of new evidence that the administrative judge 

indicated would be accepted into the record after the end of the hearing on 

December 5, 2013.2

 IAF, Tab 17. Thus, we find that the April 1 OWCP decision 

submitted by the appellant with her petition for review is new evidence and we 

consider it below. See Avansino, 3 M.S.P.R. 211, 214.

¶12 An AWOL charge cannot be sustained if OWCP determines that the 

employee was entitled to compensation benefits as a result of a work-related 

injury for the time period charged as AWOL. See Brown v. National Archives 

and Records Administration, 92 M.S.P.R. 95, ¶ 8 (2002). Here, OWCP’s decision 

reverses an earlier OWCP decision that disallowed the appellant’s claim, and it 

covers the entire period of the specifications two through eight of the agency’s 

AWOL charge, i.e., from March 19, 2013, through March 27, 2013. PFR File, 

Tab 2; IAF, Tab 5 at 73-74. Specifically, OWCP’s decision finds that the 

appellant is entitled to leave without pay for the absences in the specifications. 

PFR File, Tab 2. Therefore, in light of the newly-issued OWCP decision, 

specifications two through eight of the AWOL charge cannot be sustained. See

Burton v. Department of the Army, 60 M.S.P.R. 392, 394-95 (1994); cf. Hagan v. 

Department of the Army, 99 M.S.P.R. 313, ¶ 8 (2005) (where the agency placed 

the appellant in an unauthorized absence status but OWCP subsequently 

determined that he had a compensable injury for the period of his absence, he 

should have been in an approved leave status). 

¶13 Further, we find that in light of the newly-issued OWCP decision, 

specification two of the lack of candor charge cannot be sustained. Lack of 

candor is a “broad[ ] and . . . flexible concept whose contours and elements 

depend on the particular context and conduct involved.” Ludlum v. Department 

 2 For unexplained reasons, although the record closed at the end of the hearing on 

December 5, 2013, the administrative judge did not issue the initial decision until a year 

later on December 8, 2014, and the appellant timely filed a petition for review on 

January 8, 2015.
6

of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002). Such a charge does not require 

proof of intent, but rather “involve[s] a failure to disclose something that, in the 

circumstances, should have been disclosed in order to make the given statement 

accurate and complete.” Id. Ludlum expressly employs a flexible lack of candor 

standard that requires the agency to produce some evidence that the appellant’s 

actions, under the circumstances, involved an “element of deception.” Id. 

¶14 Here, the relevant circumstances of specification two of the lack of candor 

charge are those set forth in the agency’s specification underlying its charge, i.e., 

the appellant was denied a request for annual leave for March 21 and 22, 2013, 

and in response she obtained a statement from a physician stating that she would 

be unable to report to work from March 18 through March 26, 2013, a statement 

which contained no indication regarding why she would be incapacitated from the 

performance of her duties. IAF, Tab 5 at 73. The specification implies that the 

appellant’s doctor’s statement was a deception allowing the appellant to use sick 

leave for the period that she had been denied annual leave. However, based on 

the findings in OWCP’s decision, we find that the agency failed to prove that the 

appellant’s doctor’s statement was related to its denial of annual leave for 

March 21 and 22, 2013, but involved separate circumstances, and was not a 

deception for the appellant to be absent for the time that leave had otherwise been 

properly denied. Further, the failure of the statement to indicate why the 

appellant would be incapacitated is not, under the circumstances, an omission that 

evidences deception on the appellant’s part and/or as to the basis of her inability 

to work from March 19 through March 26, 2013. Given OWCP’s decision, the 

appellant’s doctor’s statement did not fail to disclose something that should have 

been disclosed in order to make the given statement accurate and complete. See 

Ludlum, 278 F.3d 1280, 1284.

¶15 OWCP’s decision, however, does not warrant reversing the lack of candor 

and AWOL charges because the administrative judge properly sustained the other 

specification of the lack of candor charge and the remaining specification of the 
7

AWOL charge. As the administrative judge found, the agency proved the 

specification of the lack of candor charge that the appellant was not candid when 

she stated to her supervisor that she had been invited to the EAP meeting and did 

not know what it was about. IAF, Tab 5 at 73. The record shows that the 

appellant by her own admission had scheduled the meeting, and thus knew what is 

would be about. ID at 20-21. Further, as the administrative judge found, the 

agency proved that the appellant was AWOL for 11⁄2 hours when she attended the 

EAP meeting without requesting leave, even though she knew that she must 

request leave for the meeting. ID at 24. Where, as here, there is one charge with 

multiple factual specifications set out in support of the charge, proof of one or 

more, but not all, of the supporting specifications is sufficient to sustain the 

charge. Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.

1990). Thus, the administrative judge properly found that the agency met its 

burden of proof on its charges of lack of candor and AWOL on the basis of proof 

of one supporting specification. See Crawford–Graham v. Department of 

Veterans Affairs, 99 M.S.P.R. 389, ¶ 19 (2005). 

¶16 To the extent that the appellant disagrees with the administrative judge’s 

credibility findings and weighing of the evidence regarding the charges other than 

lack of candor and AWOL, the initial decision reflects that the administrative 

judge considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions. Although the administrative judge did not make explicit 

credibility findings regarding the agency’s witnesses, she found that the 

appellant’s supervisor’s testimony had more probative value that the appellant’s 

denial of the charged misconduct of disrespectful conduct, ID at 11, and she 

credited the agency witnesses who testified regarding the appellant’s failure to 

follow directions, ID at 13-20. The administrative judge explicitly found not 

credible the appellant’s denial of the conduct underlying the charge of 

inappropriate conduct. ID at 13. The Board must give deference to an 

administrative judge’s credibility determinations where, as here, they are based 
8

explicitly or implicitly on the observation of the demeanor of witnesses testifying 

at a hearing. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.

2002); accord Walker v. Department of the Army, 102 M.S.P.R. 474, ¶ 13 (2006). 

We discern no reason to reweigh the evidence or substitute the Board’s own 

judgment on credibility issues here. See Haebe, 288 F.3d 1288, 1302; Broughton 

v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987).

¶17 Where, as here, the agency proves fewer than all of its charges, the Board 

may not independently determine a reasonable penalty. Gray v. U.S. Postal 

Service, 97 M.S.P.R. 617, ¶ 11 (2004), aff’d, No. 05-3074, 2005 WL 1368093 

(Fed. Cir. June 9, 2005); Tisdell v. Department of the Air Force, 94 M.S.P.R. 44, 

¶ 16 (2003). Rather, the Board may mitigate to the maximum reasonable penalty 

so long as the agency has not indicated either in its final decision or during 

proceedings before the Board that it desires that a lesser penalty be imposed on 

fewer charges. Gray, 97 M.S.P.R. 617, ¶ 11; Tisdell, 94 M.S.P.R. 44, ¶ 16. The 

Board may impose the same penalty imposed by the agency based on a 

justification of that penalty as the maximum reasonable penalty after balancing 

the mitigating factors. Gray, 97 M.S.P.R. 617, ¶ 11. The Board’s function 

regarding its review of an agency’s penalty selection is not to displace 

management’s responsibility, but to determine whether management exercised its 

judgment within the tolerable limits of reasonableness. Id.; Carlton v. 

Department of Justice, 95 M.S.P.R. 633, ¶ 6 (2004).

¶18 Although the administrative judge did not sustain the serious charge of 

willful misuse of a GOV, we agree with her determination that removal is the 

maximum reasonable penalty. Importantly, the deciding official did not indicate 

that a lesser penalty would be imposed on fewer than all of the charges. Indeed, 

as the administrative judge found, the deciding official indicated that each of the 
9

charges of unauthorized use of a GOV, failure to follow directions, and lack of 

candor alone warranted removal. 3

 ID at 31. 

¶19 Disrespectful conduct is a serious offense, and agencies are entitled to 

expect employees to conduct themselves in accordance with accepted standards. 

See Suggs v. Department of Veterans Affairs, 113 M.S.P.R. 671, ¶ 13 (2010) (the 

Board has held that removal is an appropriate penalty for a single charge of 

disrespectful conduct that includes multiple specifications), aff’d, 415 F. App’x 

240 (Fed. Cir. 2011). Additionally, the Board has found that the penalty of 

removal is appropriate where the appellant has demonstrated lack of candor and 

has taken unauthorized absences. See Kamahele v. Department of Homeland 

Security, 108 M.S.P.R. 666, ¶¶ 2, 15 (2008) (the Board found that the removal 

penalty was reasonable where the appellant demonstrated lack of candor and 

inappropriate conduct); Dunn v. Department of the Air Force, 96 M.S.P.R. 166, 

¶¶ 2, 12–18 (2004) (removal was reasonable where the employee engaged in 

conduct unbecoming and exhibited a lack of candor), aff’d, 139 F. App’x 280 

(Fed. Cir. 2005). Thus, we agree with the administrative judge that the penalty of 

removal for the charges of disrespectful conduct, lack of candor, unauthorized 

absence, unauthorized use of a GOV, inappropriate conduct, and failure to follow 

instructions is not beyond the tolerable limits of reasonableness. See ID at 29-31.

¶20 In her petition for review, the appellant appears to challenge the 

administrative judge’s findings that she failed to prove her affirmative defenses 

of discrimination and retaliation. PFR File, Tab 2 at 3-5. Based upon our review 

 3 The appellant asserts in her petition that the administrative judge erred by failing to 

address the appellant’s assertion that she had been detailed to another supervisor at the 

time that the agency effected her removal. Even if the appellant was detailed at the 

time that the agency removed her, the position from which she was removed remained 

her position of record, and she was removed from her position of record. IAF, Tab 5 at 

25. To the extent that the administrative judge erred in failing to mention the 

appellant’s detail, her failure did not prejudice the appellant’s substantive rights and

provides no basis for reversal of an initial decision. Panter v. Department of the Air 

Force, 22 M.S.P.R. 281, 282 (1984).
10

of the record, however, we discern no basis to disturb the well-reasoned findings 

of the administrative judge in this regard. ID at 25-29.

¶21 Accordingly, we AFFIRM the agency’s removal action.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board's final decision in this matter. 5 C.F.R. § 1201.113. 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

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.
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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 

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board