NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

CAROL A. MCGACHEY, 

Petitioner, 

v. 

DEPARTMENT OF THE AIR FORCE, 

Respondent. 

__________________________ 

2009-3304 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in DA0752080356-I-1. 

___________________________ 

Decided: August 4, 2010 

___________________________ 

GLENN D. MANGUM, Law Offices of Glenn D. Mangum, 

of San Antonio, Texas, argued for petitioner. 

JACOB A. SCHUNK, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, argued for respondent. With 

him on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and REGINALD T.

BLADES, JR., Assistant Director. 
MCGACHEY v. AIR FORCE 2

__________________________ 

Before LOURIE, BRYSON, and GAJARSA, Circuit Judges. 

PER CURIAM. 

Carol A. McGachey petitions for review of a decision 

by the Merit Systems Protection Board, which upheld a 

decision by the Department of the Air Force to remove 

Ms. McGachey from her position. We affirm. 

I 

Ms. McGachey, a registered nurse, worked as a Nurse 

Specialist in the Hauth Birthing Center at Lackland Air 

Force Base from 2002 through April 3, 2008. The agency 

proposed to remove her from her position based on three 

charges of misconduct. 

The facts underlying the first charge were the following: At 4:00 a.m. on December 14, 2007, Ms. McGachey 

called her unit duty station to request sick leave for a 

migraine headache; when she called, she reached the 

night unit coordinator. Because Ms. McGachey’s element 

leader was not on duty at that time, the night unit coordinator told her that she needed to contact her element 

leader to have her request approved. Ms. McGachey 

responded that she did not believe she had to call her 

element leader. Ms. McGachey then ended the call. She 

did not leave her telephone number, nor did she call her 

element leader or any other supervisor, either then or 

later. Instead, Ms. McGachey took medication and fell 

asleep for several hours. The agency treated those actions 

as “failure to follow leave procedures and absent without 

leave” (the “AWOL charge”). 
3 MCGACHEY v. AIR FORCE

The facts underlying the second charge were the following: A fellow nurse reported to Ms. McGachey’s element leader that Ms. McGachey had used a computer and 

printer in the unit to print out an email relating to her 

work as a union representative. In response, the element 

leader initiated an investigation in which a systems 

administrator discovered that on December 28, 2007, Ms. 

McGachey had downloaded and modified union materials 

on her computer profile. The agency concluded that Ms. 

McGachey had violated the agency’s policy concerning the 

use of government computers for non-official business. 

The agency characterized Ms. McGachey’s use of the 

agency’s computer system to access and store union 

materials as a “misuse of government property.” 

The facts underlying the third charge were the following: On January 26, 2008, the unit coordinator responsible for allocating patients to Ms. McGachey and other 

nurses on duty told Ms. McGachey to start the admission 

paperwork for a new patient. Ms. McGachey refused to 

follow that instruction on the ground that she was monitoring a sick patient and felt that she could not take on 

that additional duty and still provide adequate care to the 

first patient. The agency concluded that Ms. McGachey’s 

actions constituted a “refusal to carry out assigned duties.” 

In the letter proposing her removal, the proposing official noted that Ms. McGachey had previously received a 

letter of reprimand for unauthorized absence (i.e., AWOL) 

and discourteous conduct in 2006, and a ten-day suspension for sleeping on duty and failing to carry out assigned 

duties in 2007. After Ms. McGachey was given an opportunity to respond to the charges, the deciding official 

sustained all three charges and terminated Ms. 

McGachey’s employment. The deciding official found that 
MCGACHEY v. AIR FORCE 4

the charges were “fully supported by the evidence” and 

that Ms. McGachey’s removal was an appropriate punishment and was consistent with the penalty guidelines. 

In the removal notice, the deciding official noted two 

disciplinary actions that had been omitted from the 

agency’s earlier notice: a verbal counseling in 2006 and a 

letter of counseling in 2007. 

Ms. McGachey appealed the agency’s decision to the 

Merit Systems Protection Board, challenging the evidence 

supporting each of the three charges, as well as the reasonableness of the penalty. The administrative judge who 

was assigned to the case held that the agency had failed 

to prove the charge of “refusal to carry out assigned 

duties,” but that the remaining charges were supported 

by preponderant evidence. With respect to the AWOL 

charge, Ms. McGachey asserted that her actions were 

consistent with Article 13, section 11, of the collective 

bargaining agreement between the agency and her union 

(“the CBA”) because that provision required only that she 

“call the duty station [if the supervisor was not available] 

and talk with whoever was at the duty station acting in 

the supervisor’s place.” However, the administrative 

judge found that both the unit policy and the CBA required Ms. McGachey to contact her supervisor. In addition, the administrative judge found that Ms. McGachey 

did not leave her telephone number and did not call her 

supervisor later in the day, and that those actions were 

contrary to the sick leave protocol mandated by the CBA. 

The administrative judge therefore sustained the agency’s 

decision on that issue. 

As for the “misuse of government property” charge, 

Ms. McGachey admitted that she accessed union materials using the agency’s email system and that she stored 

those materials in her agency profile. Nevertheless, Ms. 
5 MCGACHEY v. AIR FORCE

McGachey maintained that the CBA authorized her 

actions. The administrative judge disagreed. While 

recognizing that the CBA permits email correspondence 

between union officials and employee members, the 

administrative judge also found that the CBA does not 

“authorize[] the Union to use the agency’s email and 

computer system to transmit Union documents to Union 

officials, or to store Union documents on the agency’s 

computer system.” Because Ms. McGachey used the 

agency’s computer system to access and store union 

documents, contrary to a policy that restricted use to 

“official Government Business or a use Authorized by 

[the] Commander,” the administrative judge sustained 

the agency’s charge. 

The administrative judge next discussed the agency’s 

penalty choice and held that Ms. McGachey’s removal was 

not unreasonable in light of the sustained charges. The 

administrative judge noted that the deciding official 

should not have listed the two disciplinary actions that 

were not included in the proposed removal letter, but 

accepted the deciding official’s statement that she relied 

only on the letter of counseling and that she would have 

taken the same action even if the letter of counseling had 

not been considered. The administrative judge also 

credited the deciding official’s testimony that Ms. 

McGachey’s removal was warranted, even if only one or 

two of the charges were sustained. In upholding the 

agency’s decision, the administrative judge focused on the 

AWOL charge and found (1) that Ms. McGachey was 

“clearly on notice” of the sick leave policy, (2) that “one of 

[her] prior disciplinary actions involved a charge of 

AWOL,” and (3) that her “conduct was intentional and 

raises a question concerning her potential for rehabilitation.” As a result, the administrative judge determined 

that Ms. McGachey’s “removal is not beyond the bounds of 
MCGACHEY v. AIR FORCE 6

reasonableness.” The full Board denied review of the 

administrative judge’s decision, and Ms. McGachey now 

petitions for review by this court. 

II 

Ms. McGachey asserts that the Board erred in upholding the agency’s decision with respect to the AWOL 

charge because her request for leave was in compliance 

with the CBA. Specifically, Ms. McGachey argues that 

because her supervisor was not on duty, the CBA required 

only that she make her request “to the person designated 

to act in the supervisor’s place” and that the night unit 

coordinator was acting in the supervisor’s place when she 

made her request. We disagree. The record shows that 

the night unit coordinator was not designated to act in the 

supervisor’s place, and that unit coordinators do not have 

the authority to approve sick leave. Moreover, Ms. 

McGachey made no effort to contact the other element 

leader who was on duty and was acting as the designated 

alternate under the CBA. Ms. McGachey also admits that 

she did not leave her telephone number, as required by 

the CBA. Ms. McGachey argues that leaving her telephone number was unnecessary because that number was 

already listed on the recall roster. But regardless of 

whether she considered that step as necessary, the policy 

required Ms. McGachey to provide her telephone number 

and she failed to do so. In addition, contrary to the sick 

leave protocol under the CBA, the evidence showed that 

Ms. McGachey failed to contact her supervisor “as soon as 

feasible.” Instead, she apparently decided that the call 

she had made was sufficient and that she did not need to 

follow the other steps required to request sick leave. 

There is substantial evidence supporting the Board’s 

conclusion that, after the night unit coordinator reminded 

Ms. McGachey of her responsibility to call her supervisor, 
7 MCGACHEY v. AIR FORCE

Ms. McGachey intentionally disregarded the sick leave 

policy. 

Ms. McGachey also asserts that the Board erred in 

upholding the charge of misusing government property. 

Specifically, she contests the sufficiency of the evidence 

offered by the agency and the Board’s conclusion that her 

use was unauthorized. However, the systems administrator who investigated Ms. McGachey’s profile provided 

documentary and testimonial evidence that Ms. 

McGachey’s profile contained union materials modified on 

December 28, 2007, and Ms. McGachey admits to storing 

those materials on her profile. In addition, substantial 

evidence supports the Board’s determination that the 

CBA permits union officials to use the agency’s computer 

system only for certain purposes, and that her act of 

receiving the materials in question and then storing and 

modifying those materials on the agency’s system was not 

the type of communication “between the Union officials to 

employee members” permitted by the CBA. The CBA 

required the agency to provide two computers and a 

printer for union use, which were located outside Ms. 

McGachey’s unit. However, Ms. McGachey admitted that 

she used computers in the unit to access and store the 

union materials, rather than the resources provided for 

union business under the CBA. Substantial evidence 

therefore supports the charge of misusing government 

property. 

III 

Ms. McGachey also contends that the Board erred in 

upholding her removal because it was an unreasonable 

penalty. See Pope v. U. S. Postal Serv., 114 F.3d 1144, 

1147 (Fed. Cir. 1997). We have stated that “[i]t is a wellestablished rule of civil service law that the penalty for 
MCGACHEY v. AIR FORCE 8

employee misconduct is left to the sound discretion of the 

agency.” Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. 

Cir. 1999). For that reason, when reviewing penalties 

imposed by an agency for a particular offense we “will not 

disturb a choice of penalty within the agency’s discretion 

unless the severity of the agency’s action appears totally 

unwarranted in light of all factors.” Id.

Ms. McGachey asserts that her removal constitutes 

an abuse of discretion because the agency’s penalty guidelines suggest a much lower penalty for a second AWOL 

offense (cause action 4), a second failure to request leave 

(cause action 5), or a first unauthorized use of property 

offense (cause action 21a). However, the agency classified 

each charge as a “cause action 20,” a category for which 

the guidelines suggest removal as the maximum penalty. 

We have some doubt as to whether Ms. McGachey’s 

actions were properly classified as a “cause action 20,” 

especially with respect to the misuse of government 

property charge. That category is for offenses such as 

“[i]nsubordinate defiance of authority, refusal to comply 

with proper orders, [or] wanton disregard of directives or 

insolence,” and that language appears to describe scenarios more extreme than in this case. The employing 

agency is principally responsible for interpreting its own 

penalty guidelines, however, and we decline to override 

the agency’s decision to interpret those guidelines to 

permit flexibility in the way the agency categorizes particular charges. Because the agency’s application of its 

guidelines was not irrational, we cannot overturn the 

penalty chosen by the agency on the ground that it was 

based on a misapplication of those guidelines. 

We regard the penalty imposed in this case to be quite 

harsh for the conduct at issue, particularly in light of the 

administrative judge’s dismissal of the charge of refusal 
9 MCGACHEY v. AIR FORCE

to carry out assigned duties. Nonetheless, we are constrained by the very narrow scope of our review of agency 

penalty decisions. Under the governing standard, when 

the agency makes clear, as it did here, that it would have 

imposed the same penalty based only on those charges 

that were upheld, we cannot overturn the agency’s choice 

of penalty unless we conclude that the penalty was “totally unwarranted in light of all factors,” Lachance, 178 

F.3d at 1251, or “so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of 

discretion,” O'Neill v. Dep’t of Hous. & Urban Dev., 220 

F.3d 1354, 1365 (Fed. Cir. 2000). Notwithstanding our 

discomfort with the harshness of the result in this case, 

we are not able to conclude that the penalty is so excessive as to satisfy that exacting standard, particularly with 

regard to the AWOL charge. There is substantial evidence supporting the Board’s finding that Ms. McGachey 

intentionally violated the sick leave policy; moreover, she 

had been disciplined for an AWOL charge on a previous 

occasion. Both of those facts constitute aggravating 

factors under the circumstances. Therefore, despite our 

reservations about the severity of the penalty imposed in 

this case, we decline to overturn the Board’s decision 

upholding the agency’s removal decision. 

AFFIRMED