UNITED STATES COURT OF APPEALS 

FOR THE FEDERAL CIRCUIT

717 MADISON PLACE, N.W.

WASHINGTON, D.C. 20439

PETER R. MARKSTEINER CLERK’S OFFICE

CLERK OF COURT 202-275-8000

June 18, 2020

United States District Court for the Southern District of Florida

Wilkie D. Ferguson, Jr. United States Courthouse

400 North Miami Avenue

Miami, FL 33128

Re: Merit Systems Protection Board, AT-0752-19-0427-I-1

Harris v. Interior, 20-1522

Dear Clerk: 

On June 18, 2020, the United States Court of Appeals for the Federal Circuit 

issued an order transferring this case to your court. Attached is a copy of the order, 

public docket sheet, and publicly available documents.

 Please contact the Clerk’s Office at the number above if you need further 

information regarding this case.

 Very truly yours,

/s/ Peter R. Marksteiner

Peter R. Marksteiner 

Clerk of Court

By: J. Liporace, Deputy Clerk

Case 2:20-cv-14195-RLR Document 1 Entered on FLSD Docket 06/19/2020 Page 1 of 120 Case: 20-1522 Document: 17-1 Page: 1 Filed: 06/18/2020 (1 of 120)
NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

DELTA DANIELLE HARRIS,

Petitioner

v.

DEPARTMENT OF THE INTERIOR,

Respondent

______________________

2020-1522

______________________

Petition for review of the Merit Systems Protection 

Board in No. AT-0752-19-0427-I-1.

______________________

PER CURIAM.

O R D E R

Delta Danielle Harris has filed a petition for review 

from a final decision of the Merit Systems Protection 

Board. She responds to this court’s April 21, 2020 order 

confirming that she intends to pursue her discrimination 

claims and urging transfer to the United States District 

Court for the Southern District of Florida. The Department of the Interior responds, urging dismissal.

While the Department contends that 5 U.S.C. 

§ 7702(a)(3)(B) precludes transfer, from the limited record 

before the court, it is unclear that Ms. Harris has 

Case 2:20-cv-14195-RLR Document 1 Entered on FLSD Docket 06/19/2020 Page 2 of 120 Case: 20-1522 Document: 17-2 Page: 1 Filed: 06/18/2020 (2 of 120)
2 HARRIS v. INTERIOR

petitioned the Equal Employment Opportunity Commission to review the Board decision here.* The court deems 

it the better course to transfer, leaving it to the Southern 

District of Florida to decide whether any pending EEOC 

matter impacts its jurisdiction. 

Accordingly,

IT IS ORDERED THAT:

The stay is lifted, and pursuant to 28 U.S.C. § 1631, 

this case and all transmittals are transferred to the United 

States District Court for the Southern District of Florida. 

June 18, 2020 

Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

s31

 

* While Ms. Harris notes that she has pursued an 

EEOC claim, it appears that she may be referring to the 

claim she filed with the Department separate from the underlying Board proceedings. 

Case 2:20-cv-14195-RLR Document 1 Entered on FLSD Docket 06/19/2020 Page 3 of 120 Case: 20-1522 Document: 17-2 Page: 2 Filed: 06/18/2020 (3 of 120)
General Docket

United States Court of Appeals for the Federal Circuit

Court of Appeals Docket #: 20−1522 Docketed: 03/03/2020

Harris v. Interior

Appeal From: Merit Systems Protection Board

Fee Status: fee due

Case Type Information:

1) Agency

2) Board

3) −

Originating Court Information:

District: MSPB−1 : AT−0752−19−0427−I−1

 Date Rec'd COA:

 02/21/2020

Prior Cases:

 None

Current Cases:

 None

20−1522 Harris v. Interior

Docket as of 06/18/2020 11:16:49 AM page 1 of 5

Case 2:20-cv-14195-RLR Document 1 Entered on FLSD Docket 06/19/2020 Page 4 of 120 Case: 20-1522 Document: 17-3 Page: 1 Filed: 06/18/2020 (1 of 117) (4 of 120)
DELTA DANIELLE HARRIS

 Petitioner

Delta Danielle Harris, −

Direct: 772−501−9838

Email: deltaharris7@gmail.com

[NTC Pro Se]

405 Autumn Terrace

Sebastian, FL 32958

v.

DEPARTMENT OF THE INTERIOR

 Respondent

Borislav Kushnir

Direct: 202−307−5928

Email: Steven.Kushnir@usdoj.gov

[LD NTC Government]

Department of Justice

Civil Division

PO Box 480

Ben Franklin Station

Washington, DC 20044

20−1522 Harris v. Interior

Docket as of 06/18/2020 11:16:49 AM page 2 of 5

Case 2:20-cv-14195-RLR Document 1 Entered on FLSD Docket 06/19/2020 Page 5 of 120 Case: 20-1522 Document: 17-3 Page: 2 Filed: 06/18/2020 (2 of 117) (5 of 120)
DELTA DANIELLE HARRIS,

 Petitioner

v.

DEPARTMENT OF THE INTERIOR,

 Respondent

20−1522 Harris v. Interior

Docket as of 06/18/2020 11:16:49 AM page 3 of 5

Case 2:20-cv-14195-RLR Document 1 Entered on FLSD Docket 06/19/2020 Page 6 of 120 Case: 20-1522 Document: 17-3 Page: 3 Filed: 06/18/2020 (3 of 117) (6 of 120)
03/03/2020 1 Appeal docketed. Received: 02/21/2020. [675724]

Fee/IFP is due on 03/17/2020. 15(c) is due on 03/17/2020. Entry of Appearance is due 03/17/2020.

Certified List is due on 04/13/2020. [JAL] [Entered: 03/03/2020 09:33 AM]

03/09/2020 2 MODIFIED ENTRY: MOTION of Petitioner Delta Danielle Harris for leave to proceed in Forma

Pauperis. Service: 03/09/2020 by clerk. [677477]−−[Edited 03/12/2020 by JAL] [JCP] [Entered:

03/10/2020 09:30 AM]

03/11/2020 3 Certified list received. Service: 03/03/2020 by US mail. Refer to Fed. Cir. R. 31 for calculating brief

deadlines from service of the certified list. [677834] [LMN] [Entered: 03/11/2020 11:46 AM]

03/12/2020 4 MODIFIED ENTRY: MOTION of Petitioner Delta Danielle Harris to extend the time to file the

Informal Opening Brief and to extend the time to file the Statement Concerning Discrimination

[Consent: not addressed]. Service: 03/12/2020 by clerk. [678464]−−[Edited 03/16/2020 by JAL]

[JCP] [Entered: 03/13/2020 09:29 AM]

03/17/2020 5 MODIFIED ENTRY: MOTION of Petitioner Delta Danielle Harris to extend the time to file the

Informal Opening Brief and to extend the time to file the Statement Concerning Discrimination

[Consent: not addressed]. Service: 03/17/2020 by email. [679539]−−[Edited 03/18/2020 by JAL]

[JCP] [Entered: 03/17/2020 03:33 PM]

03/18/2020 6 ORDER granting motion to extend time [4] [5] to the extent that Ms. Harris's Statement Concerning

Discrimination and her informal opening brief are due no later than April 30, 2020. Service as of this

date by the Clerk of Court. [679711] [LMS] [Entered: 03/18/2020 09:49 AM]

03/20/2020 7 Entry of appearance for Borislav Kushnir as principal counsel for Respondent Interior. Service:

03/20/2020 by email, US mail. [680392] [20−1522] [Borislav Kushnir] [Entered: 03/20/2020 09:22

AM]

03/23/2020 8 MODIFIED ENTRY: Statement Concerning Discrimination pursuant to Fed. Cir. R. 15(c) for

Petitioner Delta Danielle Harris. Service: 03/26/2020 by clerk. [681925]−−[Edited 03/27/2020 by

JAL] [JCP] [Entered: 03/26/2020 10:22 AM]

04/08/2020 9 MODIFIED ENTRY: MOTION of Petitioner Delta Danielle Harris to supplement the record

[Consent: not addressed]. Service: 04/08/2020 by email. [685446]−−[Edited 04/09/2020 by JAL]

[JCP] [Entered: 04/09/2020 08:03 AM]

04/08/2020 10 MODIFIED ENTRY: MOTION of Petitioner Delta Danielle Harris to Submit Documents from the

MSPB Listed Index [Consent: not addressed]. Service: 04/08/2020 by email. [685448]−−[Edited

04/09/2020 by JAL] [JCP] [Entered: 04/09/2020 08:04 AM]

04/13/2020 11 MODIFIED ENTRY: MOTION of Petitioner Delta Danielle Harris to supplement the record

[Consent: not addressed]. Service: 04/13/2020 by email. [686453]−−[Edited 04/14/2020 by JAL]

[JCP] [Entered: 04/13/2020 03:06 PM]

04/21/2020 12 ORDER filed directing the parties, within 30 days from the filing of this order, to show cause why

this case should not be transferred to a United States district court, and which court would be most

appropriate. The briefing schedule is stayed. (Per Curiam). Service as of this date by the Clerk of

Court. [688756] [LMS] [Entered: 04/21/2020 01:52 PM]

04/28/2020 13 MODIFIED ENTRY: RESPONSE of Petitioner Delta Danielle Harris to the court order to show

cause [12]. Service: 04/28/2020 by email. [690458]−−[Edited 04/28/2020 by JAL] [JCP] [Entered:

04/28/2020 10:24 AM]

05/19/2020 14 RESPONSE of Respondent Interior to the court order to show cause [12] , court order [12]. Service:

05/19/2020 by US mail, email. [695540] [20−1522] [Borislav Kushnir] [Entered: 05/19/2020 09:05

AM]

20−1522 Harris v. Interior

Docket as of 06/18/2020 11:16:49 AM page 4 of 5

Case 2:20-cv-14195-RLR Document 1 Entered on FLSD Docket 06/19/2020 Page 7 of 120 Case: 20-1522 Document: 17-3 Page: 4 Filed: 06/18/2020 (4 of 117) (7 of 120)
05/22/2020 15 MODIFIED ENTRY: REPLY of Petitioner Delta Danielle Harris to response [14]. Service:

05/22/2020 by email. [696669]−−[Edited 05/27/2020 by JAL] [JCP] [Entered: 05/22/2020 04:05 PM]

06/18/2020 16 ORDER filed. The stay is lifted, and pursuant to 28 U.S.C. § 1631, this case and all transmittals [2]

[9] [11] [10] are transferred to the United States District Court for the Southern District of Florida.

(Per Curiam). Service as of this date by the Clerk of Court. [702086] [NL] [Entered: 06/18/2020

10:19 AM]

20−1522 Harris v. Interior

Docket as of 06/18/2020 11:16:49 AM page 5 of 5

Case 2:20-cv-14195-RLR Document 1 Entered on FLSD Docket 06/19/2020 Page 8 of 120 Case: 20-1522 Document: 17-3 Page: 5 Filed: 06/18/2020 (5 of 117) (8 of 120)
UNITED STATES COURT OF APPEALS 

FOR THE FEDERAL CIRCUIT 

717 MADISON PLACE, N.W.

WASHINGTON, D.C. 20439

PETER R. MARKSTEINER 

CLERK OF COURT 

CLERK’S OFFICE 

202-275-8000

March 3, 2020

NOTICE OF DOCKETING

Federal Circuit Docket No.: 2020-1522

Federal Circuit Short Title: Harris v. Interior

Date of Docketing: March 3, 2020

Originating Tribunal: Merit Systems Protection Board

Originating Case No.: AT-0752-19-0427-I-1

Petitioner: Delta Danielle Harris

 A petition for review has been filed and assigned the above Federal Circuit case 

number. The court's official caption is included as an attachment to this notice. Unless 

otherwise noted in the court's rules, the assigned docket number and official caption or 

short title must be included on all documents filed with this Court. It is the responsibility 

of all parties to review the Rules for critical due dates. The assigned deputy clerk is noted 

below and all case questions should be directed to the Case Management Team at (202) 

275-8055.

CERTIFIED LIST: The agency or arbitrator is directed to forward the certified list as 

promptly as possible but no later than 40 days from the date of this notice. 

The following documents are due within 14 days of this notice: 

• Entry of Appearance. (Fed. Cir. R. 47.3.)

• Certificate of Interest. (Fed. Cir. R. 47.4.) 

• Docketing Statement. Note: The Docketing Statement is due in 30 days if the 

United States or its officer or agency is a party in the appeal. (Fed. Cir. R. 33.1 and 

the Mediation Guidelines)

• Statement Concerning Discrimination in MSPB cases. (Fed. Cir. R. 15(c).)

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PARTY FILING AND CONTACT INFORMATION: Each counsel representing a party 

must be a member of the court's bar and registered for the court's electronic filing 

system. Fed. Cir. R. 25(a). Attorneys whose contact information has changed should 

make all changes through their PACER service center profile. 

Unrepresented parties must submit documents intended for filing to the court in paper. 

However, motions and letters may be emailed to prose@cafc.uscourts.gov or faxed to 202-

275-9678. Unrepresented parties changing contact information must submit a letter or 

updated Entry of Appearance with the new contact information.

OFFICIAL CAPTION: The court's official caption is attached and reflects the lower 

tribunal's caption pursuant to Fed. R. App. P. 12(a), 15(a), and 21(a). Please review the 

caption carefully and promptly advise this court in writing of any improper or inaccurate 

designations. 

/s/ Peter R. Marksteiner

Peter R. Marksteiner 

Clerk of Court

By: J. Liporace, Deputy Clerk

Attachments:

• Official caption

• Paper Copies of General Information and Forms (to unrepresented parties only): 

o General Information and Overview of a Case in the Federal Circuit

o Entry of Appearance

o Informal Brief

o Motion and Affidavit for Leave to Proceed in Forma Pauperis (only to filers 

owing the docketing fee)

o Supplemental in Forma Pauperis Form for Prisoners (only to filers in a 

correctional institution)

o Statement Concerning Discrimination

cc: Merit Systems Protection Board

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Official Caption 

DELTA DANIELLE HARRIS, 

Petitioner

v.

DEPARTMENT OF THE INTERIOR, 

Respondent

Short Caption 

Harris v. Interior

Case 2:20-cv-14195-RLR Document 1 Entered on FLSD Docket 06/19/2020 Page 11 of 120 Case: 20-1522 Document: 17-3 Page: 8 Filed: 06/18/2020 Case: 20-1522 Document: 1-1 Page: 3 Filed: 03/03/2020 (11 of 120) (8 of 117)
FORM 5. Petition for Review or Notice of Appeal of an Order or Decision of an AGENCY, BOARD, Form 5

COMMISSION, OFFICE OR BUREAU Rev. 03/16

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Delta Harris . n x

Petitioner or Appellant,

V. PETITION FOR REVIEW

Respondent or Appellee. jrirp 71 "/UZlJ

' >

united States Court of Appals

porTiie Federal Circuit

Delta HArris (name all parties* bringing the petition or appeal)

hereby petition/appeal the court for review of the MSPB final decisionAT-0752-19-0427-1-1 (describe

the order or decision and include decision number) of the MSPB on DOT FWS TERMINATION DECISOIN

(name the agency, hoard, office or bureau) entered on November 23,2019 (date).

The order or decision was received on November 18,2019 (date).

Date: February 19.2020

d^mture of petitioner, appellant

or attorney)

Delta Harris 405 Autumn Terrace

Sebastien, F1 32958 772-501-9838

Deitaharris7@gmail.com

(Address, phone number and e-mail of petitioner, appellant or attorney)

'See Fed. R. App. P. 15 (a) (2) for permissible ways of identifying petitioners.

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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

DELTA DANIELLE HARRIS, DOCKET NUMBER

Appellant, AT-0752-19-0427-1-1

DEPARTMENT OF THE INTERIOR, date: November 18, 2019

Agency.

^ECBIVEd

2 -/

Delta Danielle Harris. Sebastian, Florida, pro se.

Cecelia Townes. Esquire, Atlanta, Georgia, for the agency.

BEFORE

Silvia de la Cruz

Administrative Judge

INITIAL DECISION

On April 17, 2019, Delta D. Harris filed an appeal with the U.S. Merit

Systems Protection Board challenging her removal from the position of Fish and

Wildlife Biologist, with the Department of the Interior, Fish and Wildlife Service,

in Vero Beach, Florida. The Board has jurisdiction over this appeal pursuant to 5

U.S.C. §§ 7511(a)(1), 7512(1), and 7513(d).

Because the appellant withdrew her request for a hearing, this decision is

based on the written record. For the reasons set forth below, the agency's action is

AFFIRMED.

analysis and findings

Background

Prior to her removal, the appellant held the position of Fish and Wildlife

Biologist, GS-0401-11, in the South Florida Ecological Services Office (SFESO),

in Vero Beach, Florida. Appeal File (AF), Tab 11 at 5 and Tab 12 at 213-219. In

addition to ''biologist," the appellant also held the role of SFESO's National

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Resource Conservation Service '(NRCS) Liaison. AF, Tab 12 at 205. In this

capacity, she attended the NRCS National and Regional workshops when she was

available and the NRCS's annual Wetland Reserve Easement Workshop. Id.

In early August of 2017, the appellant received an email with details of the

2017 NRCS workshop. Id. at 130-34. The workshop was to be held in Naples,

Florida, from October 25-27, 2017, and included discussions about wetlands

conservation as well as time in the field. Id. On Friday, August 4, 2017, the

appellant sent several emails to other biologists in her office with her supervisor,

Timothy Breen, copied on the emails, stating her intention to attend the workshop

and her plans to make hotel reservations for the group. Id. The appellant also

planned to give a presentation to workshop attendees. AF, Tab 11 at 11 and Tab 12

at 117.

At this point in the fall of 2017, the appellant had a Leave Restriction in

place as a result of past absences and inconsistent attendance. AF, Tab 12 at 69-

71. This restriction required the appellant to notify Breen and get his approval

prior to taking any scheduled leave. Id. For unscheduled annual leave, the

appellant had to notify Breen and provide written proof of an emergency within

two hours after her shift was scheduled to begin. Id. For unscheduled sick leave,

the appellant was required to notify Breen within one hour after her shift was

scheduled to begin and then provide a doctor's note upon her return. Id.

Noncompliance with the Leave Restriction meant the appellant risked her

absences being recorded as Absent Without Leave (AWOL). Id. These restrictions

were placed on the appellant effective May 19, 2017, through May 19, 2018.' Id.

The appellant signed that document acknowledging her receipt on May 19, 2017.

Id.

1 The appellant's Leave Restriction dated May 19, 2017 was an extension of her

original Leave Restriction, dated November 25, 2015, which was incrementally

extended several times in the intervening months. AF, Tab 12 at 69-80.

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On October 24, 2017, the appellant checked out a government-owned

vehicle for seven days for the "NRCS Workshop." Id. at 136. However, the

appellant did not attend the workshop on October 25-27, 2017. Id. at 118-19 and

Tab 11 at 11. Nevertheless, on November 13, 2017, she submitted a voucher for

$273.25, constituting expenses she incurred from attending "NRCS Fort Myers"^

on October 25-27, 2017. AF, Tab 12 at 110-115.

On March 16, 2018, the agency notified the appellant that it was proposing

her removal for AWOL, failure to follow leave procedures, lack of candor, misuse

of a government-owned vehicle (GOV), and inappropriate conduct. AF, Tab 12 at

5-15. Appellant provided a written response on April 6, 2018. AF, Tab 11 at 9-57.

After considering the appellant's written response and relevant Douglas factors,

Donald (Bob) Progulske, Everglades Program Supervisor, issued a decision

sustaining all charges and finding the penalty of removal to be adequate and

appropriate. AF, Tab II at 5-7. The appellant's removal was effective April 20,

2018, and on April 17, 2019, she filed the instant appeal.^ AF, Tab 1 and Tab 11 at

5-7.

Standard of Review

In an appeal in which a Federal agency takes an adverse action against a

tenured employee, the Board will sustain the action if the charges are supported

by a preponderance of the evidence.^ 5 U.S.C. 8 7701("c')n IfRl. In addition, the

agency must show that its action promotes the efficiency of the service and that

2 The workshop was held in Naples, Florida, but the hotel the appellant reserved was in

Fort Myers, Florida. AF, Tab 12 at 113.

3 On May 7, 2018, the appellant initiated an Equal Employment Opportunity (EEO)

complaint alleging discrimination based on her physical and mental disabilities and

retaliation for prior EEO activity. AF, Tab 10 at 28-41. On May 14, 2019, the agency

issued a Final Agency Decision finding that the appellant had not been subjected to

unlawful employment discrimination. Id.

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the imposed penalty is reasonable. Vaughn v. United States Postal Service. 109

M.S.P.R. 469. H 13 (2008).

The agency proved its charge of absent without leave ("AWOLI by a

preponderance of the evidence ("Charge H.

Specifications 1-3

In the first charge, the agency charged the appellant with AWOL when she

failed to attend each day of the NRCS Workshop on October 25-27, 2017, without

submitting a leave request or getting the absences approved by Breen.^ AF, Tab 12

at 5-6. In order for an agency to prove AWOL, the agency must show that (1) the

employee was absent, and that (2) her absence was not authorized, or that her

request for leave was properly denied. Wesley v. U.S. Postal Service, 94 M.S.P.R.

Ill, T[ 14 (2003). An agency is required to prove only the essence of its charge. It

need not prove each factual specification supporting the charge. Hicks v.

Department of the Treasury, 62 M.S.P.R. 71, 74 (1994), aff'd, 48 F.3d 1235 (Fed.

Cir. 1995) (Table). While an agency has broad discretion in approving or denying

a request for annual leave, it is not wholly unfettered in doing so. Penally v.

Department of Interior, 71 M.S.P.R. 537 (1996).

The record shows that on October 31, 2017, Breen contacted Joe Prenger,

State Coordinator, Partners for Fish and Wildlife Program, to ask about the

appellant's presentation at the workshop. AF, Tab 12 at 117. Prenger informed

Breen that the appellant had not been present at the workshop and he had given

the presentation in her place. Id. at 117 and 121. Two other attendees, Tim Towles

4 A preponderance of the evidence is that degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201 ■4(qT

5 Specification 1 deals with October 25, 2017, specification 2 with October 26, 2017,

and specification 3 with October 27, 2017. AF, Tab 12 at 5-6.

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and Oliver Van Den Ende, Restoration Coordinator, Everglades Headwaters

National Wildlife Refuge Complex, confirmed to Breen that the appellant was not

present for any of the three days of the workshop. Id. at 117 and 120. On

November 9, 2017, Breen contacted Crenel Francis, the NRCS Florida Easement

Program Coordinator, who planned the workshop. Francis verified that the

appellant was not in attendance but that she had told Francis she was having a

health issue. Id. at 117. Breen's notes indicated that the appellant did not contact

him according to her Leave Restriction to tell him prior to the workshop that she

would not be present and to request leave. Id. She also did not call him on any of

the days of the workshop to alert him of an illness that would have prevented her

from attending. Id.

In her written response to the proposed removal, the appellant admitted that

she did not attend the workshop. AF, Tab 11 at 11-12. However, she asserted that

she never contacted Breen regarding her absence from the workshop due to her

fear for her job, fear of consequences, and her own carelessness. Id. She also

alleged that Breen knew of the possibility that she might not attend the workshop,

pending the confirmation of the date of a medical procedure. Id. The appellant

asserted that she was conducting government business each day that she was

charged with AWOL because she attempted to drive to the workshop but had to

turn around because she was "full of anxiety and depression." Id. at 14. The

appellant provided copies of text messages between her and Jessica Robbins, an

NRCS engineer who was also a friend, where she alerted her of her intention to

make it to the workshop and her subsequent absences. Id. at 38-41. In her close of

record brief, she argued that between October 23 and October 30, 2017, she was

"excused from work for the reason that she was incapacitated." AF, Tab 23 at 10

and 17.

It is undisputed that the appellant did not attend the workshop on the

specified dates, and the evidence showed that her absences were not authorized.

The appellant's arguments that she was incapacitated and so was excused from

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work on the days of the workshop fall flat; the Board has found that an appellant

should explain "how any of her alleged ailments prevented her from attending her

scheduled training on the dates in question, or how any medical condition

accounted for her failure to contact her supervisor . . . to request leave."

Sherlock v. General Services Admin., 103 M.S.P.R. 352, 358 (2006) (emphasis

added). The appellant failed to notify Breen regarding her absences from the

workshop and did not explain why her anxiety made her unable to contact him,

especially when she was able to contact her friend Robbins. I find that the

appellant engaged in the conduct as described in specifications one through three.

The specifications are sustained.

Specification 4

In specification 4, the agency charged the appellant with AWOL when she

was absent from her duty station at SFESO on November 6, 2017, from 8:00 a.m.

to 11:00 a.m. without having her absence approved by Breen. AF, Tab 12 at 6.

According to a November 14, 2017, notice from Breen to the appellant, the

appellant was absent from work on November 6, 2017, from the beginning of her

tour of duty until approximately 11:00 a.m. AF, Tab 19 at 69. This memo

described the appellant's understanding that she was out of annual leave at the

time and that the time would be coded as AWOL. Id. The appellant does not

address this specification in her filings and the extensive time sheets she provided

cover only the period of time from February 22, 2015, to October 14, 2017. AF,

Tab 25 at 104-313.

Because the appellant did not dispute that she was absent on November 6,

2017, from 8:00 a.m. to 11:00 a.m. and because she did not show that her absence

was authorized, I find that the agency established that the appellant was absent

without leave. Specification 4 is sustained.

Charge 1 is SUSTAINED.

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The agency proved its charge of failure to follow leave procedures bv a

preponderance of the evidence CCharge 2).

Specifications 1-7

The second charge is supported by seven specifications:

Specification 1: On December 28, 2017, you did not notify me until

9:50 a.m. that you would be late arriving at work. In addition, your

absence from work from 8:00 a.m. to 9:50 a.m. had not been

approved in advance.

Specification 2: On January 18, 2018, you reported to work at 10:00

a.m. without any notification of your expected late arrival. In

addition, your absence from 8:00 a.m. to 10:00 a.m. had not been

approved in advance.

Specification 3: On February 5, 2018, you did not notify me until

9:45 a.m. that you would not be reporting to work that day. In

addition, your absence from work from 8:00 a.m. to 9:45 a.m. had

not been approved in advance.

Specification 4: On February 7, 2018, you did not notify me until

12:15 p.m. that you would be taking leave for the entire day. In

addition, your absence from 8:00 a.m. to 12:15 p.m. had not been

approved in advance.

Specification 5: On February 9, 2018, you did not notify me until

9:07 a.m. that you would not be reporting to work that day. In

addition, your absence from 8:00 a.m. to 9:07 a.m. had not been

approved in advance.

Specification 6: On February 21, 2018, you did not notify me until

9:16 a.m. that you would be reporting to work late. In addition, your

absence from 8:00 a.m. to 9:45 a.m. had not been approved in

advance.

Specification 7: On February 28, 2018, you did not notify me until

9:17 a.m. that you would not be reporting to work. In addition, your

absence from 8:00 a.m. to 9:17 a.m. had not been approved in

advance.

AF, Tab 12 at 6-7. In order to prove a charge of failure to follow leave requesting

procedures, the agency must show that it placed the appellant on notice of the

requirements for requesting leave, it informed her that she could be disciplined if

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8

she failed to comply with these requirements, and the appellant failed to comply.

See Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, H 10 (2014).

As previously described, the appellant was on notice she had been placed

on Leave Restriction as a result of past absences and inconsistent attendance. AF,

Tab 12 at 69-71. These restrictions were to remain in place until May 19, 2018,

and required the appellant to notify her supervisor of any absences to get his

approval. Id.

In response to this charge, the appellant provided payroll sheets and copies

of Quicktime records that indicated she used Leave Share time. Leave Without

Pay, and Sick Time on the dates listed in the specifications. AF, Tab 39 at 14-23,

25. She stated that these documents directly refute Charge 2 because the time

sheets prove that she was not AWOL on those dates. Id. at 4. Additionally, the

appellant provided an index of the doctor's notes she stated she received to

excuse her from work. AF, Tab 36 at 21-28. Of the dates included in the

specifications for this charge, only December 28, 2017 (Specification 1), was

mentioned in this index. Id. at 27-28. The appellant had a doctor's note dated

December 28, 2017, reading: "Excuse her from 12-26.27.28-2017." AF, Tab 25 at

44. The appellant did not say when or if she provided that December 28, 2017,

medical excuse to Breen in a timely manner pursuant to the Leave Restriction.

AF, Tab 36 at 27-28. She did not provide medical excuses for the dates listed in

specifications two through seven. Id.

In support of the charge, the agency provided Breen's notes on the

appellant's tardiness and absences. AF, Tab 22 at 44-82. Breen noted that on

December 28, 2017, he had had "[n]o communication from Delta...not in office"

as of 9:00 a.m. Id. at 78. He noted that he received an email at 9:50 a.m. from

Delta that she did not feel well and that she then arrived at 10:45 a.m. Id. Breen

also noted that on January 18, February 5, February 7, February 9, February 21,

and February 28, 2018, the appellant was late to work with no notice or missed

work with late notice, as described in the specifications. Id. at 79-80.

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I find that the appellant's submission of the Quicktime documentation

showing approval of Leave Share, Sick Time, and LWOP on the dates listed in

this charge is irrelevant to the determination of whether the charge should be

sustained. The appellant mischaracterized Charge 2 as a charge of AWOL on

those dates; it is not. AF, Tab 39 at 4. Charge 2 is a charge of failure to follow

leave procedures and the time sheets she provided have no details regarding when

or if the appellant notified her supervisor that she would be absent, as she was

required to do pursuant to her Leave Restriction. AF, Tab 12 at 6-7. They also do

not indicate when the Leave Share, Sick Time, and LWOP were approved. Thus, I

find that this evidence does not directly relate to Charge 2.

In this appeal, I find the agency's evidence outweighs the appellant's

evidence. Breen's signed declaration attests to the appellant's habit of being late

to the office without requesting leave as required per the Leave Restriction. AF,

Tab 22 at 41-82. He noted his commitment to keeping track of the appellant's

absences and excuses and his initial belief that the appellant's tardiness and

absences were a temporary problem, and the supporting documentation is

consistent with his account. Id. The extensive records show when the appellant

was not in the office, what excuse she provided (when one was provided), how

she notified Breen (including what specific email address was used), and whether

he received a doctor's excuse or was told one would be forthcoming. Id. These

records indicate that Breen was dedicated to ensuring accuracy in his supervision

of the appellant. The numerous medical excuses the appellant provided to Breen

over several years which both individuals documented demonstrate that the

appellant knew how to request leave and how to get the medical documentation to

her supervisor in an appropriate manner. Id.; AF, Tab 24 at 54-70 and Tab 25 at 9-

45 and 64-68. Further, Breen's statement that he wanted to help the appellant is

corroborated by his repeated assurances that the Leave Restriction could be lifted

if the appellant reliably and consistently attended work and followed procedures.

AF, Tab 22 at 41 and Tab 12 at 76-80.

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In contrast, the appellant was on notice that a deficiency in providing an

appropriate excuse pursuant to her Leave Restriction could result in discipline, as

she had been disciplined for similar issues before. AF, Tab 12 at 96-103 and 175-

82. In failing to respond to the actual details of this charge (Failure to Follow

Leave Procedures instead of AWOL) with a signed affidavit, the appellant has not

provided any evidence contradicting the agency's evidence against her. In sum, I

do not find that the appellant provided a satisfactory excuse to Breen for any of

dates described in the specifications and she therefore did not follow the

procedures she was required to under her Leave Restriction. I find that the agency

established by a preponderance of the evidence that the appellant failed to follow

leave procedures. Specifications 1 through 7 are sustained.

Charge 2 is sustained.

The agencv proved its charge of lack of candor by a preponderance of the

evidence ^Charge 31.

Specification 1

According to the notice of proposed removal, the appellant lacked candor

when she presented herself as having travelled to and attended the workshop

when she did not. AF, Tab 12 at 7-8. The Federal Circuit has stated that "[l]ack of

candor and falsification are different, although related, forms of misconduct, and

the latter is not a necessary element of the former." Ludlum v. Department of

Justice, 278 F.3d 1280, 1283-84 (Fed. Cir. 2002). To establish falsification, an

agency needs to show that the employee made an affirmative misrepresentation

and prove intent to deceive. Conversely, lack of candor "is a broader and more

flexible concept." Id. "Although lack of candor necessarily involves an element

of deception, 'intent to deceive' is not a separate element of that offense as it is

for 'falsification.'" Id. at 1284-85. The agency must produce some evidence that

the appellant's actions, under the circumstances, involved an "element of

deception." Id. at 1284. In Rhee v. Department of the Treasury, 117 M.S.RR. 640,

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H 11 (2012), overruled in part on other grounds by Savage v. Department of the

Army, 122 M.S.RR. 612 (2015), a case in which the appellant was charged with

lack of candor for making an incorrect statement to her supervisor, the Board

found that, to establish the "element of deception," the agency had to prove that

the appellant knowingly made an incorrect statement. Because the agency failed

to establish by preponderant evidence that the appellant knew her statement was

false, the Board found the administrative judge was correct in not sustaining the

charge. Id., ^1^1 12-6. Subsequently, the Board held that lack of candor requires

proof of the following elements: (1) that the employee gave incorrect or

incomplete information; and (2) that she did so knowingly. Fargnoli v.

Department of Commerce, 123 M.S.P.R. 330, ^ 17 (2016).

Specification 1 charged the appellant with submitting a travel voucher for

reimbursement of expenses incurred to travel to the workshop, although the

appellant had not attended. AF, Tab 12 at 7-8. It also charged the appellant with

telling Breen that she had travelled to the workshop when she did not. Id.

In support of the specification, the agency submitted the appellant's travel

voucher for expenses incurred while travelling to the workshop. Id. at 110-15,

120-23. Breen's notes indicate that on November 15, 2017, the appellant told him

that she travelled to the workshop but did not attend because of anxiety, and that

she had stayed at the home of a NRCS engineer, Robbins, the second night of her

trip. Id. at 118. The next day, Breen contacted Robbins, who told him that the

appellant had not stayed with her at all. Id. When he asked the appellant whom

she had stayed with, the appellant told Breen that she had stayed with Robbins'

friends, not Robbins. Id. Breen again contacted Robbins, who could not verify the

appellant's statements. Id. On November 20, 2017, Breen met with the appellant,

who told him she "never made it to Fort Myers," did not stay in a hotel, and

returned to her home each day of the workshop after attempting to make the trip.

Id. at 118-19.

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The appellant did not deny submitting the travel voucher and admitted that

she was "less than forthcoming" with Breen regarding where she was during the

workshop due to her fear for her job. AF, Tab 23 at 18, In an email she sent to

Breen on December 28, 2017, she stated that the hotel she had planned to stay at

during the workshop charged her government credit card in error after she told

them to charge her personal credit card instead. AF, Tab 33 at 42.

Here, I find that the appellant certified that she went to the workshop when

she submitted the travel voucher. When Breen questioned the appellant, she told

him that she had gone, despite later admitting she did not. Breen heard from

multiple individuals that the appellant missed the workshop; he had an interest as

the appellant's supervisor in discovering where she had been during those days

and he had no reason to fabricate statements from the appellant about where she

stayed. I find no reason to question his credibility. Accordingly, I find that the

agency established by a preponderance of the evidence that the appellant

displayed a lack of candor when she submitted a travel voucher for a trip she did

not make and knowingly made an incorrect statement to her supervisor about

where she was. Specification 1 is sustained.

Specifications 2-4

Specifications 2 through 4 charged the appellant with verifying in the

Quicktime pay period software on October 30, 2017, that she had worked eight

hours each day on October 25-27, 2017 (the dates of the workshop) when she was

in fact absent for 6.5 hours on each of those days without prior approval. AF, Tab

12 at 8. The agency provided the time and attendance record showing the

appellant's pay period from October 15, 2017, to October 28, 2017, which

encompassed the dates of the workshop. Id, at 125. On December 5, 2017, Breen

requested that the appellant amend her timesheet to "AWOL" from the time she

had entered.^ Id. at 127-28. The timesheet, as of December 7, 2017, shows 6.5

6 According to the time and attendance records, the appellant used 1.5 hours of annual

leave each of the three days. AF, Tab 12 at 125.

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hours of AWOL on the three dates listed in the specifications and a note that the

timesheet was edited at the appellant's supervisor's request. Id. at 125. This form

does not display the original entry made by the appellant. Id.

The appellant did not dispute that she had verified in Quicktime that she

worked 8 hours on the relevant dates even though she had not. Accordingly, I find

that the agency established by a preponderance of the evidence that the appellant

engaged in conduct exhibiting a lack of candor when she verified that she worked

eight hours on each of the days of the workshop. Specifications 2, 3, and 4 are

sustained.

Charge 3 is sustained.

The agencv proved its charge of Misuse of Government-Owned Vehicle (GOV^ bv

a preponderance of the evidence (Charge 41.

Specifications 1-3

The three specifications are as follows:

Specification 1: On October 25, 2017, you did not use the GOV to

attend the Workshop or for any other official government business.

Specification 2: On October 26, 2017, you did not use the GOV to

attend the Workshop or for any other official government business.

Specification 3: On October 27, 2017, you did not use the GOV to

attend the Workshop or for any other official government business,

except for your return trip to your permanent duty station.

AF, Tab 12 at 8. To prove the charge of misuse of a government-owned vehicle,

the agency must prove the appellant acted either with knowledge that her use of

the vehicle would be unofficial or with reckless disregard for whether her use was

for unofficial purposes. Kimm v. Department of the Treasury, 61 F.3d 888, 891

(Fed. Cir. 1995); Gotshall v. Department of the Air Force, 37 M.S.P.R. 27, 29

(1988).

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In her response to the proposed removal, the appellant asserted that she

"did conduct government business each day, as [she] attempted to drive to the

workshop all three days." AF, Tab 11 at 11. She further argued that "[a] sudden

change of plans, I do not believe is misuse of a GOV," given that she made an

effort to attend the workshop. Id. at 14. In her close of record brief, she argued

that she did not misuse the GOV as she had "no choice but to drive back and forth

between her home and the workshop everyday (sic), due to her medical

condition..." AF, Tab 23 at 19.

It is undisputed that the appellant did not use the GOV to attend the

workshop; as previously stated, the appellant admitted that she did not attend the

workshop. Driving back and forth between her home and halfway to the

workshop is not official government business. To the extent the appellant argued

that a sudden change of plans freed her from using a GOV for its designated

purpose, the handbook of agency travel procedures the appellant received in

2015 dictates that when a traveler changes her plans and "elects to suspend the

official assignment," for instance, if the traveler is sick, she must take leave

during the interruption until she is "able to resume official duty." AF, Tab 12 at

61 and 64-65. As discussed in Charge 1, the appellant was absent without leave

on the days of the workshop. I therefore find that the appellant was not using the

GOV to attend the workshop or for any other official government business and

was on notice that the use to which she put the vehicle would not qualify as

official government business. I find that the appellant misused the GOV when

she failed to use the GOV to attend the workshop during the dates identified in

the specifications.

Charge 4 is sustained.

The agencv proved its charge of Inappropriate Conduct bv a preponderance of the

evidence tCharge 5).

Specifications I and 2

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The specifications of this charge arise out of the appellant's conduct

following her supervisor's March 8, 2018, offer of accommodations:

Specification 1: According to Office Automation Assistant Patricia

Camp, on March 8, 2018, you entered her office and said "My

fucking lawyer was awesome. I am fucking getting everything 1 have

been asking that fucking bastard (Tim Breen) for over two fucking

years. It is illegal for the things he's been getting away with. But,

now I get to do telework 2 days a week.

Specification 2: According to Fish and Wildlife Biologist, Maria

Hamilton, on March 8, 2018, while she was at lunch with Fish and

Wildlife Biologist, Steve Schubert, you approached them and said,

"Dick head is finally giving me everything I have asked for."

AF, Tab 12 at 8-9. The charge of inappropriate conduct has no specific element of

proof; it is established by proving that the employee committed the acts alleged

in support of the broad label. Canada v. Department of Homeland Security^ 113

M.S.P.R. 509, ^ 9 (2010). "Nothing in law or regulation requires an agency to

affix a label to a charge of misconduct, and an agency may simply describe actions

that constitute misbehavior in narrative form and have its discipline sustained if

the efficiency of the service suffers because of the misconduct." Id.

The evidence shows that on March 8, 2018, at 11:09 a.m., Breen emailed

the appellant letting her know that he was approving her request to telework two

days per week (Tuesday and Thursday), on a trial basis for 60 days, if: (1) she

accepted the accommodations in addition to the ones offered on November 13,

2017; (2) completed the telework paperwork and had it signed; and (3) obtained

a laptop and other necessary equipment. AF, Tab 13 at 31. This email followed

email exchanges between the appellant and Breen where she told him he was

breaking the law, discriminating against her, and sabotaging and destroying her

career. Id. at 27-30. The record also included a "Note to File" from Patricia

Camp, dated March 9, 2018, stating that the appellant referred to Breen as "that

fucking bastard,'' stated that she got what she's been asking for, and telling

Camp that "[i]t is illegal for the things he's been getting away with." AF, Tab 12

at 138. In a signed letter, Maria Hamilton stated that on March 8, 2018, the

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appellant approached her and Steve Schubert and told them that ''Dick head is

finally giving me everything I have asked for . . . Timbo . . . finally realized he is

breaking the law by not allowing me to telework." Id. at 140.

The appellant asserted that the statements provided by Camp and Hamilton

were untrue and erroneous. AF, Tab 23 and 33 at 24. She argued that because she

did not "get everything she requested and asked for," she would not have said

what Camp and Hamilton stated she did. Id. The appellant further argued that

text messages on her own cell phone prove that Camp, whose statement is the

foundation for Specification 1, was somehow forced by Camp's supervisor to

make the statement to Breen about the appellant's actions. AF, Tab 39 at 5.

I find that the agency proved by preponderant evidence that the appellant

made the statements as described by Camp and Hamilton. Both employees'

description of what the appellant said align with one another and with the timing

of Breen's approval of the appellant's request to telework. In sum, I do not find

the agency's version of the events of March 8, 2018, inherently improbable or

that the appellant's coworkers harbored any motive to fabricate their statements.

I find that the appellant's assertion that her coworkers' statements are false to be

unpersuasive. The text message the appellant provided from Camp reads, "'I

know it doesn't make a difference but I wanted to tell you how sorry I am at how

things turned out.'" AF, Tab 40 at 6. The appellant provided additional

screenshots of text conversations between herself and coworkers discussing their

perceptions of Camp's statement; however, there is nothing in the messages to

suggest that Camp lied when she provided her statement to Breen. Id. at 4-5. I do

not read that implication into the text message conversation. Accordingly, I find

that the agency established by a preponderance of the evidence that the appellant

engaged in inappropriate conduct on March 8, 2018, after receiving authorization

to telework two days per week on a trial basis. Specifications 1 and 2 are

sustained.

Charge 5 is sustained.

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Nexus is apparent

An agency may establish nexus by showing that the employee's conduct (1)

affected her or her coworkers' job performance; (2) affected management's trust

and confidence in the employee's job performance; or (3) interfered with or

adversely affected the agency's mission. Johnson v. Department of Health &

Human Services, 86 M.S.P.R. 501, H 1 (2000), aff'd, 18 Fed.Appx. 837 (Fed.Cir.

2001), aff'd sub nom.. Belong v. Department of Health & Human Services, 264

F.3d 1334 (Fed.Cir.2001), cert, denied, 536 U.S. 958 (June 28, 2002).

In this case, there is an obvious relationship between the sustained charges

and the efficiency of the service. As a result, I find the agency proved that a

nexus exists between the efficiency of the service and the charges of AWOL,

failure to follow leave procedures, lack of candor, misuse of government-owned

vehicle, and inappropriate conduct.

The agencv's chosen penaltv does not exceed the bounds of reasonableness.

The agency must establish by preponderant evidence that its choice of

penalty does not exceed the bounds of reasonableness. When an agency's charges

have been sustained, the Board will review an agency-imposed penalty only to

determine if the agency considered all the relevant factors and exercised

management discretion within tolerable limits of reasonableness. Wentz v. United

States Postal Service, 91 M.S.P.R. 176, 183 (2002) (citing Stuhlmacher v. United

States Postal Service, 89 M.S.P.R. 272 (2001) and Fowler v. United States Postal

Service, 11 M.S.P.R. 8, 12, rev. dismissed, 135 F.3d 773 (Fed. Cir. 1977) (Table));

Douglas V. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). In determining

whether the penalty is reasonable, the Board gives deference to the agency's

discretion in exercising its managerial function of maintaining employee

discipline and efficiency, recognizing that the Board's function is not to displace

management's responsibility, but to ensure that management judgment has been

properly exercised. Howard v. United States Postal Service, 12 M.S.P.R. 422, 425

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(1996). Thus, where the agency's charge has been sustained, the Board will

modify a penalty only when it finds the agency failed to weigh specific Douglas

factors or that the selected penalty clearly exceeded the bounds of reasonableness.

Parker v. United States Postal Service, 111 M.S.RR. 510, ^ 9 (2009).

In this case, I find that the agency reasonably exercised its discretion and

appropriately weighed the Douglas factors in concluding that the appellant's

conduct warranted removal. In his decision letter, Donald Progulske, the deciding

official, described his consideration of the appellant's written response and her

attachments as well as information regarding her health issues before adopting the

Douglas factors analysis completed by the proposing official, Tim Breen, in

deciding to remove the appellant. AF, Tab 11 at 5-7. The appellant's misconduct

was found to be very serious in that she displayed a lack of candor as to her

attendance at the workshop and travel voucher and misuse of a GOV. Her conduct

affected management's trust in her ability to do her job, which involves

interacting with representatives from various public and private entities. AF, Tab

12 at 9-13. Furthermore, the appellant had previously been issued a Letter of

Reprimand for excessive tardiness, AWOL, and unprofessional conduct, as well as

a three-day and a five-day suspension for AWOL. Id. The appellant's excessive

absences and unwillingness to comply with her Leave Restriction were considered

to be serious because it resulted in her missing site visits and meetings, and other

staff being asked to complete her assignments. While the lack of notoriety of the

offense, the appellant's nine years of service, and her anxiety were considered as

mitigating factors, they did not outweigh her misconduct as management had lost

confidence in the appellant's ability to do her job or be rehabilitated.

The appellant argued that the penalty of removal is too severe. AF, Tab 11

at 9 and Tab 33 at 29-39. Instead, she claimed that a 14-day or 30-day suspension

would have been more reasonable. Id.

In evaluating a penalty, the Board will consider, first and foremost, the

nature and seriousness of the misconduct and its relationship to the employee's

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duties, position, and responsibilities. Goines v. Department of Air Force, 94

M.S.P.R. 527, 9 (2003). Based upon Progulske's decision letter, I find that the

deciding official reasonably exercised his discretion and appropriately considered

the Douglas factors in concluding that the appellant's conduct warranted removal.

I find that the deciding official gave appropriate weight to the appellant's work

history and medical conditions and that his conclusions that the appellant lacked

rehabilitative potential and an alternative penalty would be inadequate were

reasonable based upon the serious and outrageous nature of the appellant's

conduct. The appellant's years of service and the lack of notoriety do not

outweigh the fact that she misused a GOV, failed to attend the workshop, and

exhibited a lack of candor when she inputted work time she had not worked and

failed to be forthcoming about it. I find the appellant's explanation that she was

overcome with anxiety and could not attend the workshop is no excuse for her

conduct. In addition, I find that the deciding official gave adequate consideration

to the appellant's written reply. Accordingly, especially given the serious nature

of the appellant's misconduct, I find that the penalty of removal did not exceed

the tolerable bounds of reasonableness.^

The appellant failed to prove her affirmative defenses by a preponderance of the

evidence.

Despite the fact that 1 have determined that the agency sustained its

charges, the Board cannot sustain an agency decision to take an adverse action

against an employee where the employee proves one of the affirmative defenses

set out at 5 U.S.C. § 7701(c)(2). In this appeal, the appellant asserted that she was

removed because of her disability and in retaliation for having filed an informal

Equal Employment Opportunity (EEC) complaint. AF, Tab 23. While the

7 Pursuant to 31 U.S.C. $ 1349(b1. the penalty for unauthorized use of a GOV is

mandatory, at least a 30-day suspension.

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appellant alleged that she suffers from acute anxiety, a heart condition and other

ailments, it is unclear whether she claimed that the agency failed to provide a

reasonable accommodation for her medical conditions or that it treated her

differently because of her conditions. Accordingly, I have analyzed the appellant's

claim under both theories of disability discrimination.

Disability Discrimination

As a federal employee, the appellant's disability discrimination claim arises

under the Rehabilitation Act of 1973. However, the Equal Employment

Opportunity Commission (EEOC) regulations implementing the Americans with

Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA),

have been incorporated by reference into the Rehabilitation Act, and the Board

applies them to determine whether there has been a Rehabilitation Act violation.

Those regulations are found at 29 C.F.R. Part 1630.

A ccommodation

To establish a prima facie case of disability discrimination based on a

failure to accommodate, the appellant must show: (a) that she is an individual

with a disability under 29 C.F.R. § 1630.2(g) and that the action appealed to the

Board was based upon her disability; and (b) that she is a qualified individual

with a disability; that is, that she satisfies the requisite skill, experience,

education, and other job-related requirements of the position she holds or desires

and can perform the essential functions of the position with or without reasonable

accommodation. See 29 C.F.R. §§ 1630.2(m), 1630.3. An agency need not provide

a reasonable accommodation or a reasonable modification to policies, practices,

or procedures to an individual who meets the definition of disability solely

because she is regarded as having a physical or mental impairment that

substantially limits one or more major life activities. 42 U.S.C. § 12201(h).

The appellant may prove that she has a disability by showing that she (1)

has a physical or mental impairment that substantially limits one or more major

life activities; (2) has a record of such an impairment; or (3) is regarded as having

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such an impairment. 42 U.S.C. § 12102(1), 29 C.F.R. § 1630.2(g)(l),(2),(3). The

definition of disability is construed in favor of broad coverage. 42 U.S.C.

§ 12102(4)(A). A physical or mental impairment is any physiological disorder or

condition, cosmetic disfigurement, or anatomical loss affecting one or more body

systems, or any mental or psychological disorder. 29 C.F.R. § 1630.2(h). The test

for whether a disability substantially limits the ability of an individual to perform

a major life activity is applied as compared to most people in the general

population. 29 C.F.R. § 1630.20)(l)(ii).

In the second method of proving a disability, an individual "has a record

of a disability if she has a history of, or has been misclassified as having, a

mental or physical impairment that substantially limits one or more major life

activities. This may include individuals who were treated for a disease but no

longer have it as well as individuals who were misdiagnosed with a substantially

limiting impairment even though they did not actually have that impairment. S.

Rep. No. 116, 101st Cong., 2d Sess. 23. The impairment indicated in the record

must be an impairment that would substantially limit one or more of the

individual's major life activities. Id. Whether an individual has such a record is to

be broadly construed. If the individual has such a record, the agency need not

have relied on that record for the individual to be covered under this test.

With regard to the third method of proving disability, an individual meets

the requirement of being "regarded as having such an impairment" if she

establishes that she has been subjected to a prohibited action because of an actual

or perceived physical or mental impairment whether or not the impairment limits

or is perceived to limit a major life activity. Flowever, the "regarded as" test shall

not apply to impairments that are transitory and minor. A transitory impairment is

an impairment with an actual or expected duration of six months or less. 42

U.S.C. § 12102(3).

The appellant alleged that her ability to work (and arrive at work on time)

was affected by anxiety and a heart condition that may have required surgery. AF,

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Tab 23. Although she did not explain how the anxiety substantially limited one or

more major life activities, I assume arguendo that the appellant is a qualified

individual with a disability because she has the skills, experience, and/or

education to hold her position.

An agency must provide reasonable accommodation to the known

limitations of a qualified individual with a disability unless to do so would create

an undue hardship. See Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, H 13

(2010) (citing 42 U.S.C. § 12112(a), (b)(5)(A); Paris v. Department of the

Treasury, 104 M.S.P.R. 331, H 11 (2006); 29 C.F.R. § 1630.9). Reasonable

accommodation may entail modifications to the individual's current position or

reassignment to a vacant position. 42 U.S.C. § 12111(9). And, an employer is

liable for discriminating against an employee in need of accommodation based

upon the employee's known disability. See Conneen v. MBNA America Bank, F.3d

318 (3rd Cir. 2003); 42 U.S.C. § 12112(b)(5)(A) (requiring only reasonable

accommodations to known disability); Beck v. University of Wisconsin Board of

Regents, 75 F.3d 1130, 1134 (7th Cir. 1996) (noting initial duty of employee to

inform employer of disability is dictated by "common sense lest a disabled

employee keep his disability a secret and sue later for failure to accommodate").

While the law does not require any formal mechanism or "magic words" to notify

an employer that an employee needs an accommodation, either by direct

communication or other appropriate means, the employee "must make clear that

[he/she] wants assistance for his or her disability." Jones v. United Parcel

Service, 214 F.3d 402, 408 (3rd Cir. 2000).

According to the appellant, she first requested to telework as a reasonable

accommodation prior to March 2015. AF, Tab 23 at 11. That request was denied,

and in August 2017, she again requested a reasonable accommodation. AF, Tab 13

at 5-19 and Tab 23 at 11-13. After the appellant provided medical documentation

in which her doctor recommended a flexible schedule including potential

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telework, the offer of accommodations was formalized on November 13, 2017,

and included a flexible schedule and break times. Id.

The evidence established that the appellant requested a reasonable

accommodation for anxiety around October 2017, at which point the agency made

every effort to accommodate the appellant, including offering extra time for her

to gather medical documentation, offering to amend her leave restriction and

institute a gliding start time even prior to receiving the requisite medical

documentation. AF, Tab 13 at 9 and 17. The appellant declined these agency

efforts. Id. at 17. As a result, I find the agency did not fail to reasonably

accommodate the appellant's disability.

Disparate Treatment

An appellant may also establish a prima facie case of disability

discrimination under a disparate treatment theory by showing that she (1) is a

member of a protected class; (2) suffered an adverse employment action; and (3)

the unfavorable action gives rise to an inference of discrimination. Here, the

agency has articulated nondiscriminatory reasons for its action. Thus, the inquiry

proceeds directly to the ultimate question of whether, upon weighing all of the

evidence, the appellant has met her overall burden of proving discrimination. See

Gregory v. Department of the Army, 114 M.S.P.R. 607, 40 (2010). The Board

has held that a mixed motive analysis is appropriate in disability discrimination

claims arising under the ADAAA and that the appellant need not prove that but

for the discrimination, the action would not have been taken. See Southerland v.

Department of Defense, 119 M.S.P.R. 566, K 21 (2013). Under a mixed-motive

analysis, an employee is entitled to some relief if she proves that her disability

was "a motivating factor" in the decision, "even though other factors also

motivated the practice." Id., ^1 23 (citing 42 U.S.C. §§ 2000e-2(m), 2000e- 5(g)

(1)); see also Forte v. Department of the Navy, 123 M.S.P.R. 124, ^ 27 (2016). An

agency may limit the extent of the remedy if it demonstrates by clear and

convincing evidence that it "would have taken the same action in the absence of

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the impermissible motivating factor." Southerland, 119 M.S.P.R. 566, TIH 23-25

(citing 42 U.S.C. § 2000e-5(g)(2)(B)).

While the appellant made conclusory statements asserting her belief she

was discriminated against, she failed to provide any evidence that her anxiety or

any other disability was a motivating factor in the agency's decision. Based on

my review of the entire record, I find that the appellant did not establish that her

disability was a motivating factor in her removal. While she made it clear that she

felt her supervisor, Breen, discriminated against her, the appellant did not allege

that the deciding official, Progulske, or either of her coworkers who provided

statements to substantiate the inappropriate conduct charge (Camp and Hamilton)

discriminated against her. AF, Tab 23. The appellant presented no direct evidence

of discriminatory animus, nor has she provided circumstantial evidence of

discrimination, such as: similarly situated nondisabled employees who were

treated more favorably; that the agency lied about its reason for removing her;

that the agency's explanation was inconsistent; that the agency failed to follow its

established procedures; that the agency generally treats disabled employees less

favorably; or incriminating statements. Rather, I find that the agency's removal

action was taken solely in response to the appellant's misconduct. Therefore, I

find she did not prove that the agency discriminated against her based on her

disability under a disparate treatment theory.

Retaliation for protected activity

The appellant's claim of reprisal based on EEO activity is an allegation of a

prohibited personnel practice under 5 U.S.C. § 2302(b)(1). Federal employees are

protected against discrimination based on race, color, sex, religion, and national

origin, as well as retaliation for the exercise of Title VII rights, by 42 U.S.C. §

2000e-16. Savage v. Department of the Army, 122 M.S.RR. 612, ^ 36-37 (2015).

The Board has held that a violation is established where the appellant shows that

discrimination or retaliation "was a motivating factor in the contested personnel

action, even if it was not the only reason." Id., H 41. To establish a prima facie

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case of retaliation for engaging in protected activity, the appellant must show

that; (a) she engaged in protected activity; (b) the accused official(s) knew of the

protected activity; (c) the adverse employment action under review could, under

the circumstances, have been retaliation; and (d) there was a genuine nexus

between the retaliation and the adverse employment action. See Warren v.

Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986); Cloonan v.

United States Postal Service, 65 M.S.P.R. 1, 4 (1994). To establish a genuine

nexus between the protected activity and the adverse employment action, the

appellant must prove that the employment action was taken because of the

protected activity. Cloonan, 65 M.S.P.R. at 4, n.3.

In support of her affirmative defense, the appellant alleged that she

engaged in protected EEO activity when she notified her supervisors on January

12, 2015. of allegations of sexual harassment against a co-worker and when she

was a witness in another employee's complaint. AF, Tab 23 at 5-6 and Tab 25 at

94-95. The agency considered this to be an "informal EEO complaint." AF, Tab

22 at 35. On February 3, 2015, she gave her supervisor a written statement of

what had happened and requested a move to another office in a different building,

away from her alleged harasser. AF, Tab 19 at 77-78. Breen later facilitated this

move for her; he provided the appellant with information about making a formal

complaint and options for elevating the issue but the appellant declined to

formalize the complaint. AF, Tab 24 at 25-28. The agency stated that in terms of

the appellant being a witness in another matter, it "is not aware of any allegation

of sexual harassment against John Galvez by Shana DiPalma," and the appellant

has declined to provide evidence that the deciding official was aware she had

been a witness in another EEO complaint. AF, Tab 25 at 94-95. While it is evident

that Breen, the proposing official whose analysis the deciding official adopted,

knew about the protected activity the appellant had engaged in with regard to the

"informal EEO complaint," the adverse action took place more than three years

later following wrongdoing by the appellant. Further, the support that Breen

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provided to the appellant after she made the allegation demonstrated that he

wanted to support the appellant and not punish her for what happened. On these

facts, I find that the appellant failed to show a genuine nexus between her

protected activity and her removal. I further find that the appellant failed to show

that the agency was aware she was a witness in any other EEC proceeding.

Accordingly, I find that the appellant failed to prove she was removed in

retaliation for having participated in any protected activity.

Decision

The agency's action is AFFIRMED.

FOR THE BOARD: /S/

Silvia de la Cruz

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on December 23. 2019. unless a

petition for review is filed by that date. This is an important date because it is

usually the last day on which you can file a petition for review with the Board.

However, if you prove that you received this initial decision more than 5 days

after the date of issuance, you may file a petition for review within 30 days after

the date you actually receive the initial decision. If you are represented, the 30-

day period begins to run upon either your receipt of the initial decision or its

receipt by your representative, whichever comes first. You must establish the

date on which you or your representative received it. The date on which the initial

decision becomes final also controls when you can file a petition for review with

one of the authorities discussed in the "Notice of Appeal Rights" section, below.

The paragraphs that follow tell you how and when to file with the Board or one of

those authorities. These instructions are important because if you wish to file a

petition, you must file it within the proper time period.

BOARD REVIEW

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You may request Board review of this initial decision by filing a petition

for review.

If the other party has already filed a timely petition for review, you may

file a cross petition for review. Your petition or cross petition for review must

state your objections to the initial decision, supported by references to applicable

laws, regulations, and the record. You must file it with:

The Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.

Washington, DC 20419

A petition or cross petition for review may be filed by mail, facsimile (fax),

personal or commercial delivery, or electronic filing. A petition submitted by

electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and

may only be accomplished at the Board's eAppeal website

nittps://eappeal.mspb.govT

NOTICE OF LACK OF QUORUM

The Merit Systems Protection Board ordinarily is composed of three

members, 5 U.S.C. § 1201, but currently there are no members in place. Because a

majority vote of the Board is required to decide a case, see 5 C.F.R. § 1200.3(a),

(e), the Board is unable to issue decisions on petitions for review filed with it at

this time. See 5 U.S.C. § 1203. Thus, while parties may continue to file petitions

for review during this period, no decisions will be issued until at least two

members are appointed by the President and confirmed by the Senate. The lack of

a quorum does not serve to extend the time limit for filing a petition or cross

petition. Any party who files such a petition must comply with the time limits

specified herein.

For alternative review options, please consult the section below titled

"Notice of Appeal Rights," which sets forth other review options.

Criteria for Granting a Petition or Cross Petition for Review

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Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only

issues raised in a timely filed petition or cross petition for review. Situations in

which the Board may grant a petition or cross petition for review include, but are

not limited to, a showing that:

(a) The initial decision contains erroneous findings of material fact. (1)

Any alleged factual error must be material, meaning of sufficient weight to

warrant an outcome different from that of the initial decision. (2) A petitioner

who alleges that the judge made erroneous findings of material fact must explain

why the challenged factual determination is incorrect and identify specific

evidence in the record that demonstrates the error. In reviewing a claim of an

erroneous finding of fact, the Board will 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.

(b) 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

petitioner must explain how the error affected the outcome of the case.

(c) 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.

(d) New and material evidence or legal argument is available that, despite

the petitioner's due diligence, was not available when the record closed. To

constitute new evidence, the information contained in the documents, not just the

documents themselves, must have been unavailable despite due diligence when

the record closed.

As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition

for review, or a response to a petition for review, whether computer generated,

typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A

reply to a response to a petition for review is limited to 15 pages or 3750 words,

whichever is less. Computer generated and typed pleadings must use no less than

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12 point typeface and 1-inch margins and must be double spaced and only use one

side of a page. The length limitation is exclusive of any table of contents, table of

authorities, attachments, and certificate of service. A request for leave to file a

pleading that exceeds the limitations prescribed in this paragraph must be

received by the Clerk of the Board at least 3 days before the filing deadline. Such

requests must give the reasons for a waiver as well as the desired length of the

pleading and are granted only in exceptional circumstances. The page and word

limits set forth above are maximum limits. Parties are not expected or required to

submit pleadings of the maximum length. Typically, a well-written petition for

review is between 5 and 10 pages long.

If you file a petition or cross petition for review, the Board will obtain the

record in your case from the administrative judge and you should not submit

anything to the Board that is already part of the record. A petition for review

must be filed with the Clerk of the Board no later than the date this initial

decision becomes final, or if this initial decision is received by you or your

representative more than 5 days after the date of issuance, 30 days after the date

you or your representative actually received the initial decision, whichever was

first. If you claim that you and your representative both received this decision

more than 5 days after its issuance, you have the burden to prove to the Board the

earlier date of receipt. You must also show that any delay in receiving the initial

decision was not due to the deliberate evasion of receipt. You may meet your

burden by filing evidence and argument, sworn or under penalty of perjury (see 5

C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail

is determined by the postmark date. The date of filing by fax or by electronic

filing is the date of submission. The date of filing by personal delivery is the date

on which the Board receives the document. The date of filing by commercial

delivery is the date the document was delivered to the commercial delivery

service. Your petition may be rejected and returned to you if you fail to provide a

statement of how you served your petition on the other party. See 5 C.F.R.

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§ 120l.4(j). If the petition is filed electronically, the online process itself will

serve the petition on other e-filers. See 5 C.F.R, § 1201,14(j)(l).

A cross petition for review must be filed within 25 days after the date of

service of the petition for review.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial

decision in accordance with the Board's regulations,

notice OF APPEAL rights

You may obtain review of this initial decision only after it becomes final,

as explained in the "Notice to Appellant" section above. 5 U.S.C. § 7703(a)(1).

By statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this decision when it becomes final,

you should immediately review the law applicable to your claims and carefully

follow all filing time limits and requirements. Failure to file within the

applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

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within 60 calendar days of the date this decision becomes final. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is

contained within the court's Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of vour discrimination

claims—by filing a civil action with an appropriate U.S. district court {not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after this

decision becomes final under the rules set out in the Notice to Appellant section,

above. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board,

582 U.S. , 137S. Ct. 1975 (2017). If the action involves a claim of

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discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a courtappointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_LocatQr/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC's Office of Federal Operations within 30 calendar days after this decision

becomes final as explained above. 5 U.S.C. § 7702(b)(1).

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistlebiower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and you wish to challenge the Board's rulings on vour whistlebiower claims

onlv. excluding all other issues, then you may file a petition for judicial review

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with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. The court of appeals must receive your petition for

review within 60 days of the date this decision becomes fi nal under the rules set

out in the Notice to Appellant section, above. 5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is

contained within the court's Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

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Case 2:20-cv-14195-RLR Document 1 Entered on FLSD Docket 06/19/2020 Page 46 of 1
US. MERIT SYSTEMS PROTECTION BOARD

Office of the Clerk of the Board

1615 M Street, N.W.

1883 Washington, D.C. 20419-0002

Phone: 202-653-7200; Fax: 202-653-7130; E-Mail: mspbmspb.gov

20-1522

ATTESTATION

I HEREBY ATTEST that the attached index represents a list of the documents

comprising the administrative record of the Merit Systems Protection Board in the appeal

of Delta Danielle Harris v. Department of the Interior, MSPB Docket No. AT-0752-19-

0427-I-i, and that the administrative record is under my official custody and control on

this i1ti

on tile in this Board

March 3, 2020

Date Jennifer Evening /&LflK

Acting Clerk of the Board

Page 1 of 2

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Page 2

CERTIFICATE OF SERVICE

I hereby certify that the attached Document(s) was (were) sent as indicated

this day to each of the following:

Petitioner

U.S. Mail Delta Danielle Harris

405 Autumn Terrace

Sebastian, FL 32958

Respondent

U.S. Mail Robert E. Kirschman, Director

Commercial Litigation Branch

Civil Division Classification Unit

U.S. Department of Justice

1100 L Street, N.W., Room 12124

Washington, DC 20530

March 3, 2020

(Date) Jennifer Evening

Acting Clerk of the Board

Page 2 of 2

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INDEX Page 1 of 3

DELTA DANIELLE HARRIS

V. DEPARTMENT OF THE INTERIOR

MSPB Docket No. AT-0752-19-0427-I-1

IA-REFORM ACT MERIT

DATE OF RECEIPT

AB OR ISSUANCE

1 1 Appellant - Initial Appeal April 17, 2019

2 1 MSPB - Acknowledgment Order April 26, 2019

3 1 Agency - Agency Representative Addition May 28, 2019

4 1 Agency - Request for Extension May 28, 2019

5 1 Appellant - Appellant Representative May 28, 2019

6 1 MSPB - Order Granting Extension of Time May 28, 2019

7 1 Appellant - Designation of Representative June 04, 2019

8 1 Appellant - Unopposed Motion to Extend Discovery June 09, 2019

initiation

9 1 MSPB - Order Granting Extension of Time June 10, 2019

10 1 Agency - Agency Response Part 1 June 11, 2019

11 1 Agency - Agency Response Part 2 June 11, 2019

12 1 Agency - Agency Response Part 3 June 11, 2019

13 1 Agency - Agency Response Part 4 June 11, 2019

14 1 MSPB - Hearing Order June 14, 2019

15' 1 Appellant - Request for Rescheduling July 10 June 14, 2019

Prehearing Conference

16 1 MSPB - Order Rescheduling June 17, 2019

17 1 Appellant - Motion to Compel or Motion to Extend June 26, 2019

Upcoming Deadlines

18 1 MSPB - Suspension and Rescheduling Order June 29, 2019

4 / 3

Page 1 of 3

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AT-0752-19-0427-J-1 DELTA DANIELLE HARRIS v. DEPARTMENT OF THE iNTERIOR Page 2 of 3

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

Agency - Prehearing Statement July 29, 2019

1 Appellant Request for Decision on Record and August 01, 2019

Permit to Submit Brief

I MSPB - Order and Summary of Close of Record August 01, 2019

Conference

1 Agency - Close of Record Statement September 03, 2019

Appellant - Close of Record Brief September 04, 2019

Appellant Ex A and following September 04, 2019

1 Appellant - Ex H(1) and following September 04, 2019

1 Agency - Motion for Sanctions September 04, 2019

1 Agency - Response to Appellant's Close of Record September 09, 2019

Statement

1 Appellant - Motion for Change in Rep & Request for September 09, 2019

EOT to Respond

1 Appellant Motion to Deny September 09, 2019

1 MSPB - Order September 10, 2019

1 Appellant Witness Affidavits September 12, 2019

1 Appellant - Witness 2 September 12, 2019

1 Appellant Rebuttal Part 1 September 12, 2019

1 Appellant - Rebuttal Part 2 September 12, 2019

1 Appellant - Witness 3 September 12, 2019

1 Appellant Addition Rebuttal Submittal Part 2 Septembr 12, 2019

1 Appellant - Rebuttal Part 3 September 12, 2019

1 Appellant - Motion for Guidance September 13, 2019

1 Appellant - Motion for Supplemental Evidence to September 24, 2019

Close of Record

1 Appellant - Motion to Supplement Attachment A-C September 24, 2019

1 Agency - Response to Appellant's Motions to September 26, 2019

Supplement the Record

Page 2 of 3

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AT-0752-19-0427-I-1 DELTA DANIELLE HARRIS v. DEPARTMENT OF THE INTERIOR Page 3 of 3

42 1 Appellant Motion to Resubmit Arthur Roybal and October 08, 2019

Paula Halupa Affidavits with Original Signe

43 1 Appellant - Motion to Resubmit Paula Halupa October 08, 2019

Affidavit with Original Signed Sworn Affidavit

44 1 Appellant - Motion to Resubmit Kristi Yanchis' October 08, 2019

Affidavit with Original Signed Sworn Affidavi

45 1 MSPB - Order October 09, 2019

46 1 Agency - Request for an Extension October 09, 2019

47 1 MSPB - Order Granting Extension of Time October 10, 2019

48 1 Appellant - Motion to Submit New Evidence October 10, 2019

49 1 Agency - Response to Appellant's Supplemental October 23, 2019

Documents and Statments

50 1 MSPB - Initial Decision November 18, 2019

51 1 MSPB - Certificate of Service November 18, 2019

Page 3 of 3

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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE 

DELTA DANIELLE HARRIS,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

AT-0752-19-0427-I-1

DATE: November 18, 2019

Delta Danielle Harris, Sebastian, Florida, pro se.

Cecelia Townes, Esquire, Atlanta, Georgia, for the agency.

BEFORE

Silvia de la Cruz

Administrative Judge

INITIAL DECISION

On April 17, 2019, Delta D. Harris filed an appeal with the U.S. Merit 

Systems Protection Board challenging her removal from the position of Fish and 

Wildlife Biologist, with the Department of the Interior, Fish and Wildlife Service, 

in Vero Beach, Florida. The Board has jurisdiction over this appeal pursuant to 5 

U.S.C. §§ 7511(a)(1), 7512(1), and 7513(d). 

Because the appellant withdrew her request for a hearing, this decision is 

based on the written record. For the reasons set forth below, the agency’s action 

is AFFIRMED.

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2

ANALYSIS AND FINDINGS

Background

Prior to her removal, the appellant held the position of Fish and Wildlife 

Biologist, GS-0401-11, in the South Florida Ecological Services Office (SFESO), 

in Vero Beach, Florida. Appeal File (AF), Tab 11 at 5 and Tab 12 at 213-219. In 

addition to “biologist,” the appellant also held the role of SFESO’s National 

Resource Conservation Service (NRCS) Liaison. AF, Tab 12 at 205. In this 

capacity, she attended the NRCS National and Regional workshops when she was 

available and the NRCS’s annual Wetland Reserve Easement Workshop. Id.

In early August of 2017, the appellant received an email with details of the 

2017 NRCS workshop. Id. at 130-34. The workshop was to be held in Naples, 

Florida, from October 25-27, 2017, and included discussions about wetlands 

conservation as well as time in the field. Id. On Friday, August 4, 2017, the 

appellant sent several emails to other biologists in her office with her supervisor, 

Timothy Breen, copied on the emails, stating her intention to attend the workshop 

and her plans to make hotel reservations for the group. Id. The appellant also 

planned to give a presentation to workshop attendees. AF, Tab 11 at 11 and Tab 

12 at 117.

At this point in the fall of 2017, the appellant had a Leave Restriction in 

place as a result of past absences and inconsistent attendance. AF, Tab 12 at 69-

71. This restriction required the appellant to notify Breen and get his approval 

prior to taking any scheduled leave. Id. For unscheduled annual leave, the 

appellant had to notify Breen and provide written proof of an emergency within 

two hours after her shift was scheduled to begin. Id. For unscheduled sick leave, 

the appellant was required to notify Breen within one hour after her shift was 

scheduled to begin and then provide a doctor’s note upon her return. Id.

Noncompliance with the Leave Restriction meant the appellant risked her 

absences being recorded as Absent Without Leave (AWOL). Id. These restrictions 

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3

were placed on the appellant effective May 19, 2017, through May 19, 2018. 1 Id.

The appellant signed that document acknowledging her receipt on May 19, 2017. 

Id.

On October 24, 2017, the appellant checked out a government-owned 

vehicle for seven days for the “NRCS Workshop.” Id. at 136. However, the 

appellant did not attend the workshop on October 25-27, 2017. Id. at 118-19 and 

Tab 11 at 11. Nevertheless, on November 13, 2017, she submitted a voucher for 

$273.25, constituting expenses she incurred from attending “NRCS Fort Myers” 2

on October 25-27, 2017. AF, Tab 12 at 110-115.

On March 16, 2018, the agency notified the appellant that it was proposing 

her removal for AWOL, failure to follow leave procedures, lack of candor, 

misuse of a government-owned vehicle (GOV), and inappropriate conduct. AF, 

Tab 12 at 5-15. Appellant provided a written response on April 6, 2018. AF, Tab 

11 at 9-57. After considering the appellant’s written response and relevant 

Douglas factors, Donald (Bob) Progulske, Everglades Program Supervisor, issued 

a decision sustaining all charges and finding the penalty of removal to be 

adequate and appropriate. AF, Tab 11 at 5-7. The appellant’s removal was 

effective April 20, 2018, and on April 17, 2019, she filed the instant appeal. 3 AF, 

Tab 1 and Tab 11 at 5-7.

 

1 The appellant’s Leave Restriction dated May 19, 2017 was an extension of her original 

Leave Restriction, dated November 25, 2015, which was incrementally extended several 

times in the intervening months. AF, Tab 12 at 69-80.

2 The workshop was held in Naples, Florida, but the hotel the appellant reserved was in 

Fort Myers, Florida. AF, Tab 12 at 113.

3 On May 7, 2018, the appellant initiated an Equal Employment Opportunity (EEO) 

complaint alleging discrimination based on her physical and mental disabilities and 

retaliation for prior EEO activity. AF, Tab 10 at 28-41. On May 14, 2019, the agency 

issued a Final Agency Decision finding that the appellant had not been subjected to 

unlawful employment discrimination. Id.

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4

Standard of Review

In an appeal in which a Federal agency takes an adverse action against a 

tenured employee, the Board will sustain the action if the charges are supported 

by a preponderance of the evidence. 4 5 U.S.C. § 7701(c)(1)(B). In addition, the 

agency must show that its action promotes the efficiency of the service and that 

the imposed penalty is reasonable. Vaughn v. United States Postal Service, 109 

M.S.P.R. 469, ¶ 13 (2008).

The agency proved its charge of absent without leave (AWOL) by a 

preponderance of the evidence (Charge 1).

Specifications 1-3

In the first charge, the agency charged the appellant with AWOL when she 

failed to attend each day of the NRCS Workshop on October 25-27, 2017, without 

submitting a leave request or getting the absences approved by Breen. 5 AF, Tab 

12 at 5-6. In order for an agency to prove AWOL, the agency must show that (1) 

the employee was absent, and that (2) her absence was not authorized, or that her 

request for leave was properly denied. Wesley v. U.S. Postal Service, 94 M.S.P.R. 

277, ¶ 14 (2003). An agency is required to prove only the essence of its charge. It 

need not prove each factual specification supporting the charge. Hicks v. 

Department of the Treasury, 62 M.S.P.R. 71, 74 (1994), aff’d, 48 F.3d 1235 (Fed. 

Cir. 1995) (Table). While an agency has broad discretion in approving or denying 

a request for annual leave, it is not wholly unfettered in doing so. Benally v. 

Department of Interior, 71 M.S.P.R. 537 (1996).

 

4 A preponderance of the evidence is that degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

5 Specification 1 deals with October 25, 2017, specification 2 with October 26, 2017, 

and specification 3 with October 27, 2017. AF, Tab 12 at 5-6.

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5

The record shows that on October 31, 2017, Breen contacted Joe Prenger, 

State Coordinator, Partners for Fish and Wildlife Program, to ask about the 

appellant’s presentation at the workshop. AF, Tab 12 at 117. Prenger informed 

Breen that the appellant had not been present at the workshop and he had given 

the presentation in her place. Id. at 117 and 121. Two other attendees, Tim 

Towles and Oliver Van Den Ende, Restoration Coordinator, Everglades 

Headwaters National Wildlife Refuge Complex, confirmed to Breen that the 

appellant was not present for any of the three days of the workshop. Id. at 117 

and 120. On November 9, 2017, Breen contacted Crenel Francis, the NRCS 

Florida Easement Program Coordinator, who planned the workshop. Francis 

verified that the appellant was not in attendance but that she had told Francis she 

was having a health issue. Id. at 117. Breen’s notes indicated that the appellant 

did not contact him according to her Leave Restriction to tell him prior to the 

workshop that she would not be present and to request leave. Id. She also did not 

call him on any of the days of the workshop to alert him of an illness that would 

have prevented her from attending. Id. 

In her written response to the proposed removal, the appellant admitted that 

she did not attend the workshop. AF, Tab 11 at 11-12. However, she asserted that 

she never contacted Breen regarding her absence from the workshop due to her 

fear for her job, fear of consequences, and her own carelessness. Id. She also 

alleged that Breen knew of the possibility that she might not attend the workshop, 

pending the confirmation of the date of a medical procedure. Id. The appellant 

asserted that she was conducting government business each day that she was 

charged with AWOL because she attempted to drive to the workshop but had to 

turn around because she was “full of anxiety and depression.” Id. at 14. The 

appellant provided copies of text messages between her and Jessica Robbins, an 

NRCS engineer who was also a friend, where she alerted her of her intention to 

make it to the workshop and her subsequent absences. Id. at 38-41. In her close of 

record brief, she argued that between October 23 and October 30, 2017, she was 

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6

“excused from work for the reason that she was incapacitated.” AF, Tab 23 at 10 

and 17. 

It is undisputed that the appellant did not attend the workshop on the 

specified dates, and the evidence showed that her absences were not authorized. 

The appellant’s arguments that she was incapacitated and so was excused from 

work on the days of the workshop fall flat; the Board has found that an appellant 

should explain “how any of her alleged ailments prevented her from attending her 

scheduled training on the dates in question, or how any medical condition 

accounted for her failure to contact her supervisor . . . to request leave.” 

Sherlock v. General Services Admin., 103 M.S.P.R. 352, 358 (2006) (emphasis 

added). The appellant failed to notify Breen regarding her absences from the 

workshop and did not explain why her anxiety made her unable to contact him, 

especially when she was able to contact her friend Robbins. I find that the 

appellant engaged in the conduct as described in specifications one through three. 

The specifications are sustained.

Specification 4

In specification 4, the agency charged the appellant with AWOL when she 

was absent from her duty station at SFESO on November 6, 2017, from 8:00 a.m. 

to 11:00 a.m. without having her absence approved by Breen. AF, Tab 12 at 6.

According to a November 14, 2017, notice from Breen to the appellant, the 

appellant was absent from work on November 6, 2017, from the beginning of her 

tour of duty until approximately 11:00 a.m. AF, Tab 19 at 69. This memo 

described the appellant’s understanding that she was out of annual leave at the 

time and that the time would be coded as AWOL. Id. The appellant does not 

address this specification in her filings and the extensive time sheets she provided 

cover only the period of time from February 22, 2015, to October 14, 2017. AF, 

Tab 25 at 104-313. 

Because the appellant did not dispute that she was absent on November 6, 

2017, from 8:00 a.m. to 11:00 a.m. and because she did not show that her absence 

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7

was authorized, I find that the agency established that the appellant was absent 

without leave. Specification 4 is sustained.

Charge 1 is SUSTAINED.

The agency proved its charge of failure to follow leave procedures by a 

preponderance of the evidence (Charge 2).

Specifications 1-7

The second charge is supported by seven specifications: 

Specification 1: On December 28, 2017, you did not notify me until 

9:50 a.m. that you would be late arriving at work. In addition, your 

absence from work from 8:00 a.m. to 9:50 a.m. had not been 

approved in advance. 

Specification 2: On January 18, 2018, you reported to work at 10:00 

a.m. without any notification of your expected late arrival. In 

addition, your absence from 8:00 a.m. to 10:00 a.m. had not been 

approved in advance. 

Specification 3: On February 5, 2018, you did not notify me until 

9:45 a.m. that you would not be reporting to work that day. In 

addition, your absence from work from 8:00 a.m. to 9:45 a.m. had 

not been approved in advance. 

Specification 4: On February 7, 2018, you did not notify me until 

12:15 p.m. that you would be taking leave for the entire day. In 

addition, your absence from 8:00 a.m. to 12:15 p.m. had not been 

approved in advance. 

Specification 5: On February 9, 2018, you did not notify me until 

9:07 a.m. that you would not be reporting to work that day. In 

addition, your absence from 8:00 a.m. to 9:07 a.m. had not been 

approved in advance. 

Specification 6: On February 21, 2018, you did not notify me until 

9:16 a.m. that you would be reporting to work late. In addition, your 

absence from 8:00 a.m. to 9:45 a.m. had not been approved in 

advance. 

Specification 7: On February 28, 2018, you did not notify me until 

9:17 a.m. that you would not be reporting to work. In addition, your 

absence from 8:00 a.m. to 9:17 a.m. had not been approved in 

advance. 

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8

AF, Tab 12 at 6-7. In order to prove a charge of failure to follow leave requesting 

procedures, the agency must show that it placed the appellant on notice of the 

requirements for requesting leave, it informed her that she could be disciplined if 

she failed to comply with these requirements, and the appellant failed to comply.

See Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014).

As previously described, the appellant was on notice she had been placed 

on Leave Restriction as a result of past absences and inconsistent attendance. AF, 

Tab 12 at 69-71. These restrictions were to remain in place until May 19, 2018, 

and required the appellant to notify her supervisor of any absences to get his 

approval. Id.

In response to this charge, the appellant provided payroll sheets and copies 

of Quicktime records that indicated she used Leave Share time, Leave Without 

Pay, and Sick Time on the dates listed in the specifications. AF, Tab 39 at 14-23, 

25. She stated that these documents directly refute Charge 2 because the time 

sheets prove that she was not AWOL on those dates. Id. at 4. Additionally, the 

appellant provided an index of the doctor’s notes she stated she received to 

excuse her from work. AF, Tab 36 at 21-28. Of the dates included in the 

specifications for this charge, only December 28, 2017 (Specification 1), was 

mentioned in this index. Id. at 27-28. The appellant had a doctor’s note dated 

December 28, 2017, reading: “Excuse her from 12-26.27.28-2017.” AF, Tab 25 at 

44. The appellant did not say when or if she provided that December 28, 2017, 

medical excuse to Breen in a timely manner pursuant to the Leave Restriction. 

AF, Tab 36 at 27-28. She did not provide medical excuses for the dates listed in 

specifications two through seven. Id.

In support of the charge, the agency provided Breen’s notes on the 

appellant’s tardiness and absences. AF, Tab 22 at 44-82. Breen noted that on 

December 28, 2017, he had had “[n]o communication from Delta...not in office” 

as of 9:00 a.m. Id. at 78. He noted that he received an email at 9:50 a.m. from 

Delta that she did not feel well and that she then arrived at 10:45 a.m. Id. Breen 

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9

also noted that on January 18, February 5, February 7, February 9, February 21, 

and February 28, 2018, the appellant was late to work with no notice or missed 

work with late notice, as described in the specifications. Id. at 79-80.

I find that the appellant’s submission of the Quicktime documentation 

showing approval of Leave Share, Sick Time, and LWOP on the dates listed in 

this charge is irrelevant to the determination of whether the charge should be 

sustained. The appellant mischaracterized Charge 2 as a charge of AWOL on 

those dates; it is not. AF, Tab 39 at 4. Charge 2 is a charge of failure to follow 

leave procedures and the time sheets she provided have no details regarding when 

or if the appellant notified her supervisor that she would be absent, as she was 

required to do pursuant to her Leave Restriction. AF, Tab 12 at 6-7. They also do 

not indicate when the Leave Share, Sick Time, and LWOP were approved. Thus, I 

find that this evidence does not directly relate to Charge 2. 

In this appeal, I find the agency’s evidence outweighs the appellant’s 

evidence. Breen’s signed declaration attests to the appellant’s habit of being late 

to the office without requesting leave as required per the Leave Restriction. AF, 

Tab 22 at 41-82. He noted his commitment to keeping track of the appellant’s 

absences and excuses and his initial belief that the appellant’s tardiness and 

absences were a temporary problem, and the supporting documentation is 

consistent with his account. Id. The extensive records show when the appellant 

was not in the office, what excuse she provided (when one was provided), how 

she notified Breen (including what specific email address was used), and whether 

he received a doctor’s excuse or was told one would be forthcoming. Id. These 

records indicate that Breen was dedicated to ensuring accuracy in his supervision 

of the appellant. The numerous medical excuses the appellant provided to Breen 

over several years which both individuals documented demonstrate that the 

appellant knew how to request leave and how to get the medical documentation to 

her supervisor in an appropriate manner. Id.; AF, Tab 24 at 54-70 and Tab 25 at 

9-45 and 64-68. Further, Breen’s statement that he wanted to help the appellant is 

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10

corroborated by his repeated assurances that the Leave Restriction could be lifted 

if the appellant reliably and consistently attended work and followed procedures. 

AF, Tab 22 at 41 and Tab 12 at 76-80.

In contrast, the appellant was on notice that a deficiency in providing an 

appropriate excuse pursuant to her Leave Restriction could result in discipline, as 

she had been disciplined for similar issues before. AF, Tab 12 at 96-103 and 175-

82. In failing to respond to the actual details of this charge (Failure to Follow 

Leave Procedures instead of AWOL) with a signed affidavit, the appellant has not 

provided any evidence contradicting the agency’s evidence against her. In sum, I 

do not find that the appellant provided a satisfactory excuse to Breen for any of 

dates described in the specifications and she therefore did not follow the 

procedures she was required to under her Leave Restriction. I find that the agency 

established by a preponderance of the evidence that the appellant failed to follow 

leave procedures. Specifications 1 through 7 are sustained.

Charge 2 is sustained.

The agency proved its charge of lack of candor by a preponderance of the 

evidence (Charge 3).

Specification 1

According to the notice of proposed removal, the appellant lacked candor 

when she presented herself as having travelled to and attended the workshop 

when she did not. AF, Tab 12 at 7-8. The Federal Circuit has stated that “[l]ack of 

candor and falsification are different, although related, forms of misconduct, and 

the latter is not a necessary element of the former.” Ludlum v. Department of 

Justice, 278 F.3d 1280, 1283-84 (Fed. Cir. 2002). To establish falsification, an 

agency needs to show that the employee made an affirmative misrepresentation 

and prove intent to deceive. Conversely, lack of candor “is a broader and more 

flexible concept.” Id. “Although lack of candor necessarily involves an element 

of deception, ‘intent to deceive’ is not a separate element of that offense as it is 

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for ‘falsification.’” Id. at 1284-85. The agency must produce some evidence that 

the appellant’s actions, under the circumstances, involved an “element of 

deception.” Id. at 1284. In Rhee v. Department of the Treasury, 117 M.S.P.R. 

640, ¶ 11 (2012), overruled in part on other grounds by Savage v. Department of 

the Army, 122 M.S.P.R. 612 (2015), a case in which the appellant was charged 

with lack of candor for making an incorrect statement to her supervisor, the 

Board found that, to establish the “element of deception,” the agency had to 

prove that the appellant knowingly made an incorrect statement. Because the 

agency failed to establish by preponderant evidence that the appellant knew her 

statement was false, the Board found the administrative judge was correct in not 

sustaining the charge. Id., ¶¶ 12–6. Subsequently, the Board held that lack of 

candor requires proof of the following elements: (1) that the employee gave 

incorrect or incomplete information; and (2) that she did so knowingly. Fargnoli 

v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17 (2016).

Specification 1 charged the appellant with submitting a travel voucher for 

reimbursement of expenses incurred to travel to the workshop, although the 

appellant had not attended. AF, Tab 12 at 7-8. It also charged the appellant with 

telling Breen that she had travelled to the workshop when she did not. Id. 

In support of the specification, the agency submitted the appellant’s travel 

voucher for expenses incurred while travelling to the workshop. Id. at 110-15, 

120-23. Breen’s notes indicate that on November 15, 2017, the appellant told him 

that she travelled to the workshop but did not attend because of anxiety, and that

she had stayed at the home of a NRCS engineer, Robbins, the second night of her 

trip. Id. at 118. The next day, Breen contacted Robbins, who told him that the 

appellant had not stayed with her at all. Id. When he asked the appellant whom 

she had stayed with, the appellant told Breen that she had stayed with Robbins’ 

friends, not Robbins. Id. Breen again contacted Robbins, who could not verify the 

appellant’s statements. Id. On November 20, 2017, Breen met with the appellant, 

who told him she “never made it to Fort Myers,” did not stay in a hotel, and 

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returned to her home each day of the workshop after attempting to make the trip. 

Id. at 118-19.

The appellant did not deny submitting the travel voucher and admitted that 

she was “less than forthcoming” with Breen regarding where she was during the 

workshop due to her fear for her job. AF, Tab 23 at 18. In an email she sent to 

Breen on December 28, 2017, she stated that the hotel she had planned to stay at 

during the workshop charged her government credit card in error after she told 

them to charge her personal credit card instead. AF, Tab 33 at 42. 

Here, I find that the appellant certified that she went to the workshop when 

she submitted the travel voucher. When Breen questioned the appellant, she told 

him that she had gone, despite later admitting she did not. Breen heard from 

multiple individuals that the appellant missed the workshop; he had an interest as 

the appellant’s supervisor in discovering where she had been during those days 

and he had no reason to fabricate statements from the appellant about where she 

stayed. I find no reason to question his credibility. Accordingly, I find that the 

agency established by a preponderance of the evidence that the appellant 

displayed a lack of candor when she submitted a travel voucher for a trip she did 

not make and knowingly made an incorrect statement to her supervisor about 

where she was. Specification 1 is sustained.

Specifications 2-4

Specifications 2 through 4 charged the appellant with verifying in the 

Quicktime pay period software on October 30, 2017, that she had worked eight 

hours each day on October 25-27, 2017 (the dates of the workshop) when she was 

in fact absent for 6.5 hours on each of those days without prior approval. AF, Tab 

12 at 8. The agency provided the time and attendance record showing the 

appellant’s pay period from October 15, 2017, to October 28, 2017, which 

encompassed the dates of the workshop. Id. at 125. On December 5, 2017, Breen 

requested that the appellant amend her timesheet to “AWOL” from the time she 

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had entered. 6 Id. at 127-28. The timesheet, as of December 7, 2017, shows 6.5 

hours of AWOL on the three dates listed in the specifications and a note that the 

timesheet was edited at the appellant’s supervisor’s request. Id. at 125. This form 

does not display the original entry made by the appellant. Id. 

The appellant did not dispute that she had verified in Quicktime that she 

worked 8 hours on the relevant dates even though she had not. Accordingly, I find 

that the agency established by a preponderance of the evidence that the appellant 

engaged in conduct exhibiting a lack of candor when she verified that she worked 

eight hours on each of the days of the workshop. Specifications 2, 3, and 4 are 

sustained.

Charge 3 is sustained.

The agency proved its charge of Misuse of Government-Owned Vehicle (GOV)

by a preponderance of the evidence (Charge 4).

Specifications 1-3

The three specifications are as follows:

Specification 1: On October 25, 2017, you did not use the GOV to 

attend the Workshop or for any other official government business.

Specification 2: On October 26, 2017, you did not use the GOV to 

attend the Workshop or for any other official government business.

Specification 3: On October 27, 2017, you did not use the GOV to 

attend the Workshop or for any other official government business, 

except for your return trip to your permanent duty station.

AF, Tab 12 at 8. To prove the charge of misuse of a government-owned vehicle, 

the agency must prove the appellant acted either with knowledge that her use of 

the vehicle would be unofficial or with reckless disregard for whether her use was 

for unofficial purposes. Kimm v. Department of the Treasury, 61 F.3d 888, 891 

 

6 According to the time and attendance records, the appellant used 1.5 hours of annual 

leave each of the three days. AF, Tab 12 at 125.

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(Fed. Cir. 1995); Gotshall v. Department of the Air Force, 37 M.S.P.R. 27, 29 

(1988).

In her response to the proposed removal, the appellant asserted that she 

“did conduct government business each day, as [she] attempted to drive to the 

workshop all three days.” AF, Tab 11 at 11. She further argued that “[a] sudden 

change of plans, I do not believe is misuse of a GOV,” given that she made an 

effort to attend the workshop. Id. at 14. In her close of record brief, she argued 

that she did not misuse the GOV as she had “no choice but to drive back and forth 

between her home and the workshop everyday (sic), due to her medical 

condition...” AF, Tab 23 at 19. 

It is undisputed that the appellant did not use the GOV to attend the 

workshop; as previously stated, the appellant admitted that she did not attend the 

workshop. Driving back and forth between her home and halfway to the 

workshop is not official government business. To the extent the appellant argued 

that a sudden change of plans freed her from using a GOV for its designated 

purpose, the handbook of agency travel procedures the appellant received in 

2015 dictates that when a traveler changes her plans and “elects to suspend the 

official assignment,” for instance, if the traveler is sick, she must take leave 

during the interruption until she is “able to resume official duty.” AF, Tab 12 at 

61 and 64-65. As discussed in Charge 1, the appellant was absent without leave 

on the days of the workshop. I therefore find that the appellant was not using the 

GOV to attend the workshop or for any other official government business and 

was on notice that the use to which she put the vehicle would not qualify as 

official government business. I find that the appellant misused the GOV when 

she failed to use the GOV to attend the workshop during the dates identified in 

the specifications. 

Charge 4 is sustained.

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The agency proved its charge of Inappropriate Conduct by a preponderance of the 

evidence (Charge 5).

Specifications 1 and 2

The specifications of this charge arise out of the appellant’s conduct 

following her supervisor’s March 8, 2018, offer of accommodations:

Specification 1: According to Office Automation Assistant Patricia 

Camp, on March 8, 2018, you entered her office and said “My 

fucking lawyer was awesome. I am fucking getting everything I have 

been asking that fucking bastard (Tim Breen) for over two fucking 

years. It is illegal for the things he’s been getting away with. But, 

now I get to do telework 2 days a week.

Specification 2: According to Fish and Wildlife Biologist, Marla 

Hamilton, on March 8, 2018, while she was at lunch with Fish and 

Wildlife Biologist, Steve Schubert, you approached them and said, 

“Dick head is finally giving me everything I have asked for.”

AF, Tab 12 at 8-9. The charge of inappropriate conduct has no specific element of

proof; it is established by proving that the employee committed the acts alleged 

in support of the broad label. Canada v. Department of Homeland Security, 113 

M.S.P.R. 509, ¶ 9 (2010). “Nothing in law or regulation requires an agency to 

affix a label to a charge of misconduct, and an agency may simply describe actions 

that constitute misbehavior in narrative form and have its discipline sustained if 

the efficiency of the service suffers because of the misconduct.” Id. 

The evidence shows that on March 8, 2018, at 11:09 a.m., Breen emailed 

the appellant letting her know that he was approving her request to telework two 

days per week (Tuesday and Thursday), on a trial basis for 60 days, if: (1) she 

accepted the accommodations in addition to the ones offered on November 13, 

2017; (2) completed the telework paperwork and had it signed; and (3) obtained 

a laptop and other necessary equipment. AF, Tab 13 at 31. This email followed 

email exchanges between the appellant and Breen where she told him he was 

breaking the law, discriminating against her, and sabotaging and destroying her 

career. Id. at 27-30. The record also included a “Note to File” from Patricia 

Camp, dated March 9, 2018, stating that the appellant referred to Breen as “that 

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fucking bastard,” stated that she got what she’s been asking for, and telling 

Camp that “[i]t is illegal for the things he’s been getting away with.” AF, Tab 12

at 138. In a signed letter, Marla Hamilton stated that on March 8, 2018, the 

appellant approached her and Steve Schubert and told them that “Dick head is 

finally giving me everything I have asked for . . . Timbo . . . finally realized he 

is breaking the law by not allowing me to telework.” Id. at 140. 

The appellant asserted that the statements provided by Camp and Hamilton 

were untrue and erroneous. AF, Tab 23 and 33 at 24. She argued that because 

she did not “get everything she requested and asked for,” she would not have 

said what Camp and Hamilton stated she did. Id. The appellant further argued 

that text messages on her own cell phone prove that Camp, whose statement is 

the foundation for Specification 1, was somehow forced by Camp’s supervisor to 

make the statement to Breen about the appellant’s actions. AF, Tab 39 at 5.

I find that the agency proved by preponderant evidence that the appellant 

made the statements as described by Camp and Hamilton. Both employees’ 

description of what the appellant said align with one another and with the timing 

of Breen’s approval of the appellant’s request to telework. In sum, I do not find 

the agency’s version of the events of March 8, 2018, inherently improbable or 

that the appellant’s coworkers harbored any motive to fabricate their statements. 

I find that the appellant’s assertion that her coworkers’ statements are false to be 

unpersuasive. The text message the appellant provided from Camp reads, “‘I 

know it doesn’t make a difference but I wanted to tell you how sorry I am at how 

things turned out.’” AF, Tab 40 at 6. The appellant provided additional

screenshots of text conversations between herself and coworkers discussing their 

perceptions of Camp’s statement; however, there is nothing in the messages to 

suggest that Camp lied when she provided her statement to Breen. Id. at 4-5. I do 

not read that implication into the text message conversation. Accordingly, I find 

that the agency established by a preponderance of the evidence that the appellant 

engaged in inappropriate conduct on March 8, 2018, after receiving 

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authorization to telework two days per week on a trial basis. Specifications 1 

and 2 are sustained.

Charge 5 is sustained.

Nexus is apparent

An agency may establish nexus by showing that the employee’s conduct (1)

affected her or her coworkers’ job performance; (2) affected management’s trust 

and confidence in the employee’s job performance; or (3) interfered with or 

adversely affected the agency’s mission. Johnson v. Department of Health & 

Human Services, 86 M.S.P.R. 501, ¶ 1 (2000), aff’d, 18 Fed.Appx. 837 (Fed.Cir. 

2001), aff’d sub nom., Delong v. Department of Health & Human Services, 264 

F.3d 1334 (Fed.Cir.2001), cert. denied, 536 U.S. 958 (June 28, 2002).

In this case, there is an obvious relationship between the sustained charges 

and the efficiency of the service. As a result, I find the agency proved that a 

nexus exists between the efficiency of the service and the charges of AWOL, 

failure to follow leave procedures, lack of candor, misuse of government-owned 

vehicle, and inappropriate conduct. 

The agency’s chosen penalty does not exceed the bounds of reasonableness.

The agency must establish by preponderant evidence that its choice of 

penalty does not exceed the bounds of reasonableness. When an agency’s charges 

have been sustained, the Board will review an agency-imposed penalty only to 

determine if the agency considered all the relevant factors and exercised 

management discretion within tolerable limits of reasonableness. Wentz v. United 

States Postal Service, 91 M.S.P.R. 176, 183 (2002) (citing Stuhlmacher v. United 

States Postal Service, 89 M.S.P.R. 272 (2001) and Fowler v. United States Postal 

Service, 77 M.S.P.R. 8, 12, rev. dismissed, 135 F.3d 773 (Fed. Cir. 1977) 

(Table)); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). In 

determining whether the penalty is reasonable, the Board gives deference to the 

agency’s discretion in exercising its managerial function of maintaining employee 

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discipline and efficiency, recognizing that the Board’s function is not to displace 

management's responsibility, but to ensure that management judgment has been 

properly exercised. Howard v. United States Postal Service, 72 M.S.P.R. 422, 425 

(1996). Thus, where the agency’s charge has been sustained, the Board will 

modify a penalty only when it finds the agency failed to weigh specific Douglas

factors or that the selected penalty clearly exceeded the bounds of 

reasonableness. Parker v. United States Postal Service, 111 M.S.P.R. 510, ¶ 9 

(2009).

In this case, I find that the agency reasonably exercised its discretion and 

appropriately weighed the Douglas factors in concluding that the appellant’s 

conduct warranted removal. In his decision letter, Donald Progulske, the deciding 

official, described his consideration of the appellant’s written response and her 

attachments as well as information regarding her health issues before adopting 

the Douglas factors analysis completed by the proposing official, Tim Breen, in 

deciding to remove the appellant. AF, Tab 11 at 5-7. The appellant’s misconduct 

was found to be very serious in that she displayed a lack of candor as to her 

attendance at the workshop and travel voucher and misuse of a GOV. Her conduct 

affected management’s trust in her ability to do her job, which involves 

interacting with representatives from various public and private entities. AF, Tab 

12 at 9-13. Furthermore, the appellant had previously been issued a Letter of 

Reprimand for excessive tardiness, AWOL, and unprofessional conduct, as well 

as a three-day and a five-day suspension for AWOL. Id. The appellant’s 

excessive absences and unwillingness to comply with her Leave Restriction were 

considered to be serious because it resulted in her missing site visits and 

meetings, and other staff being asked to complete her assignments. While the lack 

of notoriety of the offense, the appellant’s nine years of service, and her anxiety 

were considered as mitigating factors, they did not outweigh her misconduct as 

management had lost confidence in the appellant’s ability to do her job or be 

rehabilitated. 

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The appellant argued that the penalty of removal is too severe. AF, Tab 11 

at 9 and Tab 33 at 29-39. Instead, she claimed that a 14-day or 30-day suspension 

would have been more reasonable. Id.

In evaluating a penalty, the Board will consider, first and foremost, the 

nature and seriousness of the misconduct and its relationship to the employee’s 

duties, position, and responsibilities. Gaines v. Department of Air Force, 94 

M.S.P.R. 527, ¶ 9 (2003). Based upon Progulske’s decision letter, I find that the 

deciding official reasonably exercised his discretion and appropriately considered 

the Douglas factors in concluding that the appellant’s conduct warranted removal. 

I find that the deciding official gave appropriate weight to the appellant’s work

history and medical conditions and that his conclusions that the appellant lacked 

rehabilitative potential and an alternative penalty would be inadequate were 

reasonable based upon the serious and outrageous nature of the appellant’s 

conduct. The appellant’s years of service and the lack of notoriety do not 

outweigh the fact that she misused a GOV, failed to attend the workshop, and 

exhibited a lack of candor when she inputted work time she had not worked and 

failed to be forthcoming about it. I find the appellant’s explanation that she was 

overcome with anxiety and could not attend the workshop is no excuse for her 

conduct. In addition, I find that the deciding official gave adequate consideration 

to the appellant’s written reply. Accordingly, especially given the serious nature 

of the appellant’s misconduct, I find that the penalty of removal did not exceed 

the tolerable bounds of reasonableness. 7

The appellant failed to prove her affirmative defenses by a preponderance of the 

evidence.

Despite the fact that I have determined that the agency sustained its 

charges, the Board cannot sustain an agency decision to take an adverse action 

 

7 Pursuant to 31 U.S.C. § 1349(b), the penalty for unauthorized use of a GOV is 

mandatory, at least a 30-day suspension.

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against an employee where the employee proves one of the affirmative defenses 

set out at 5 U.S.C. § 7701(c)(2). In this appeal, the appellant asserted that she was 

removed because of her disability and in retaliation for having filed an informal 

Equal Employment Opportunity (EEO) complaint. AF, Tab 23. While the 

appellant alleged that she suffers from acute anxiety, a heart condition and other 

ailments, it is unclear whether she claimed that the agency failed to provide a 

reasonable accommodation for her medical conditions or that it treated her 

differently because of her conditions. Accordingly, I have analyzed the 

appellant’s claim under both theories of disability discrimination.

Disability Discrimination

As a federal employee, the appellant’s disability discrimination claim 

arises under the Rehabilitation Act of 1973. However, the Equal Employment

Opportunity Commission (EEOC) regulations implementing the Americans with

Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA), 

have been incorporated by reference into the Rehabilitation Act, and the Board 

applies them to determine whether there has been a Rehabilitation Act violation. 

Those regulations are found at 29 C.F.R. Part 1630.

Accommodation

To establish a prima facie case of disability discrimination based on a 

failure to accommodate, the appellant must show: (a) that she is an individual 

with a disability under 29 C.F.R. § 1630.2(g) and that the action appealed to the 

Board was based upon her disability; and (b) that she is a qualified individual 

with a disability; that is, that she satisfies the requisite skill, experience, 

education, and other job-related requirements of the position she holds or desires 

and can perform the essential functions of the position with or without reasonable 

accommodation. See 29 C.F.R. §§ 1630.2(m), 1630.3. An agency need not 

provide a reasonable accommodation or a reasonable modification to policies, 

practices, or procedures to an individual who meets the definition of disability 

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solely because she is regarded as having a physical or mental impairment that 

substantially limits one or more major life activities. 42 U.S.C. § 12201(h).

The appellant may prove that she has a disability by showing that she (1) 

has a physical or mental impairment that substantially limits one or more major 

life activities; (2) has a record of such an impairment; or (3) is regarded as having 

such an impairment. 42 U.S.C. § 12102(1), 29 C.F.R. § 1630.2(g)(1),(2),(3). The 

definition of disability is construed in favor of broad coverage. 42 U.S.C. 

§ 12102(4)(A). A physical or mental impairment is any physiological disorder or 

condition, cosmetic disfigurement, or anatomical loss affecting one or more body 

systems, or any mental or psychological disorder. 29 C.F.R. § 1630.2(h). The test 

for whether a disability substantially limits the ability of an individual to perform 

a major life activity is applied as compared to most people in the general 

population. 29 C.F.R. § 1630.2(j)(1)(ii). 

In the second method of proving a disability, an individual “has a record 

of” a disability if she has a history of, or has been misclassified as having, a 

mental or physical impairment that substantially limits one or more major life 

activities. This may include individuals who were treated for a disease but no 

longer have it as well as individuals who were misdiagnosed with a substantially 

limiting impairment even though they did not actually have that impairment. S. 

Rep. No. 116, 101st Cong., 2d Sess. 23. The impairment indicated in the record 

must be an impairment that would substantially limit one or more of the 

individual’s major life activities. Id. Whether an individual has such a record is to 

be broadly construed. If the individual has such a record, the agency need not 

have relied on that record for the individual to be covered under this test.

With regard to the third method of proving disability, an individual meets 

the requirement of being “regarded as having such an impairment” if she 

establishes that she has been subjected to a prohibited action because of an actual 

or perceived physical or mental impairment whether or not the impairment limits 

or is perceived to limit a major life activity. However, the “regarded as” test shall 

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not apply to impairments that are transitory and minor. A transitory impairment is 

an impairment with an actual or expected duration of six months or less. 42 

U.S.C. § 12102(3).

The appellant alleged that her ability to work (and arrive at work on time) 

was affected by anxiety and a heart condition that may have required surgery. AF, 

Tab 23. Although she did not explain how the anxiety substantially limited one or 

more major life activities, I assume arguendo that the appellant is a qualified 

individual with a disability because she has the skills, experience, and/or 

education to hold her position.

An agency must provide reasonable accommodation to the known 

limitations of a qualified individual with a disability unless to do so would create 

an undue hardship. See Simpson v. U.S. Postal Service, 113 M.S.P.R. 346, ¶ 13 

(2010) (citing 42 U.S.C. § 12112(a), (b)(5)(A); Paris v. Department of the 

Treasury, 104 M.S.P.R. 331, ¶ 11 (2006); 29 C.F.R. § 1630.9). Reasonable 

accommodation may entail modifications to the individual’s current position or 

reassignment to a vacant position. 42 U.S.C. § 12111(9). And, an employer is 

liable for discriminating against an employee in need of accommodation based 

upon the employee’s known disability. See Conneen v. MBNA America Bank, 

F.3d 318 (3rd Cir. 2003); 42 U.S.C. § 12112(b)(5)(A) (requiring only reasonable 

accommodations to known disability); Beck v. University of Wisconsin Board of 

Regents, 75 F.3d 1130, 1134 (7th Cir. 1996) (noting initial duty of employee to 

inform employer of disability is dictated by “common sense lest a disabled 

employee keep his disability a secret and sue later for failure to accommodate”). 

While the law does not require any formal mechanism or “magic words” to notify 

an employer that an employee needs an accommodation, either by direct 

communication or other appropriate means, the employee “must make clear that 

[he/she] wants assistance for his or her disability.” Jones v. United Parcel 

Service, 214 F.3d 402, 408 (3rd Cir. 2000).

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According to the appellant, she first requested to telework as a reasonable 

accommodation prior to March 2015. AF, Tab 23 at 11. That request was denied, 

and in August 2017, she again requested a reasonable accommodation. AF, Tab 

13 at 5-19 and Tab 23 at 11-13. After the appellant provided medical 

documentation in which her doctor recommended a flexible schedule including 

potential telework, the offer of accommodations was formalized on November 13, 

2017, and included a flexible schedule and break times. Id.

The evidence established that the appellant requested a reasonable 

accommodation for anxiety around October 2017, at which point the agency made 

every effort to accommodate the appellant, including offering extra time for her 

to gather medical documentation, offering to amend her leave restriction and 

institute a gliding start time even prior to receiving the requisite medical 

documentation. AF, Tab 13 at 9 and 17. The appellant declined these agency 

efforts. Id. at 17. As a result, I find the agency did not fail to reasonably 

accommodate the appellant’s disability.

Disparate Treatment

An appellant may also establish a prima facie case of disability 

discrimination under a disparate treatment theory by showing that she (1) is a 

member of a protected class; (2) suffered an adverse employment action; and (3) 

the unfavorable action gives rise to an inference of discrimination. Here, the 

agency has articulated nondiscriminatory reasons for its action. Thus, the inquiry 

proceeds directly to the ultimate question of whether, upon weighing all of the 

evidence, the appellant has met her overall burden of proving discrimination. See 

Gregory v. Department of the Army, 114 M.S.P.R. 607, ¶ 40 (2010). The Board 

has held that a mixed motive analysis is appropriate in disability discrimination 

claims arising under the ADAAA and that the appellant need not prove that but 

for the discrimination, the action would not have been taken. See Southerland v. 

Department of Defense, 119 M.S.P.R. 566, ¶ 21 (2013). Under a mixed-motive 

analysis, an employee is entitled to some relief if she proves that her disability 

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was “a motivating factor” in the decision, “even though other factors also 

motivated the practice.” Id., ¶ 23 (citing 42 U.S.C. §§ 2000e-2(m), 2000e5(g)(1)); see also Forte v. Department of the Navy, 123 M.S.P.R. 124, ¶ 27 

(2016). An agency may limit the extent of the remedy if it demonstrates by clear 

and convincing evidence that it “would have taken the same action in the absence 

of the impermissible motivating factor.” Southerland, 119 M.S.P.R. 566, ¶¶ 23-25 

(citing 42 U.S.C. § 2000e-5(g)(2)(B)). 

While the appellant made conclusory statements asserting her belief she 

was discriminated against, she failed to provide any evidence that her anxiety or 

any other disability was a motivating factor in the agency’s decision. Based on 

my review of the entire record, I find that the appellant did not establish that her 

disability was a motivating factor in her removal. While she made it clear that she 

felt her supervisor, Breen, discriminated against her, the appellant did not allege 

that the deciding official, Progulske, or either of her coworkers who provided 

statements to substantiate the inappropriate conduct charge (Camp and Hamilton) 

discriminated against her. AF, Tab 23. The appellant presented no direct evidence 

of discriminatory animus, nor has she provided circumstantial evidence of 

discrimination, such as: similarly situated nondisabled employees who were 

treated more favorably; that the agency lied about its reason for removing her; 

that the agency’s explanation was inconsistent; that the agency failed to follow its 

established procedures; that the agency generally treats disabled employees less 

favorably; or incriminating statements. Rather, I find that the agency’s removal 

action was taken solely in response to the appellant’s misconduct. Therefore, I 

find she did not prove that the agency discriminated against her based on her 

disability under a disparate treatment theory.

Retaliation for protected activity

The appellant’s claim of reprisal based on EEO activity is an allegation of 

a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). Federal employees 

are protected against discrimination based on race, color, sex, religion, and 

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25

national origin, as well as retaliation for the exercise of Title VII rights, by 42 

U.S.C. § 2000e-16. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 36-37 

(2015). The Board has held that a violation is established where the appellant 

shows that discrimination or retaliation “was a motivating factor in the contested 

personnel action, even if it was not the only reason.” Id., ¶ 41. To establish a 

prima facie case of retaliation for engaging in protected activity, the appellant 

must show that: (a) she engaged in protected activity; (b) the accused official(s) 

knew of the protected activity; (c) the adverse employment action under review 

could, under the circumstances, have been retaliation; and (d) there was a genuine 

nexus between the retaliation and the adverse employment action. See Warren v. 

Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986); Cloonan v. 

United States Postal Service, 65 M.S.P.R. 1, 4 (1994). To establish a genuine 

nexus between the protected activity and the adverse employment action, the 

appellant must prove that the employment action was taken because of the 

protected activity. Cloonan, 65 M.S.P.R. at 4, n.3.

In support of her affirmative defense, the appellant alleged that she 

engaged in protected EEO activity when she notified her supervisors on January 

12, 2015, of allegations of sexual harassment against a co-worker and when she 

was a witness in another employee’s complaint. AF, Tab 23 at 5-6 and Tab 25 at 

94-95. The agency considered this to be an “informal EEO complaint.” AF, Tab 

22 at 35. On February 3, 2015, she gave her supervisor a written statement of 

what had happened and requested a move to another office in a different building, 

away from her alleged harasser. AF, Tab 19 at 77-78. Breen later facilitated this 

move for her; he provided the appellant with information about making a formal 

complaint and options for elevating the issue but the appellant declined to 

formalize the complaint. AF, Tab 24 at 25-28. The agency stated that in terms of 

the appellant being a witness in another matter, it “is not aware of any allegation 

of sexual harassment against John Galvez by Shana DiPalma,” and the appellant 

has declined to provide evidence that the deciding official was aware she had 

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26

been a witness in another EEO complaint. AF, Tab 25 at 94-95. While it is 

evident that Breen, the proposing official whose analysis the deciding official 

adopted, knew about the protected activity the appellant had engaged in with 

regard to the “informal EEO complaint,” the adverse action took place more than 

three years later following wrongdoing by the appellant. Further, the support that 

Breen provided to the appellant after she made the allegation demonstrated that 

he wanted to support the appellant and not punish her for what happened. On 

these facts, I find that the appellant failed to show a genuine nexus between her 

protected activity and her removal. I further find that the appellant failed to show 

that the agency was aware she was a witness in any other EEO proceeding. 

Accordingly, I find that the appellant failed to prove she was removed in 

retaliation for having participated in any protected activity.

DECISION

The agency’s action is AFFIRMED.

FOR THE BOARD: /S/ 

Silvia de la Cruz

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on December 23, 2019, unless a 

petition for review is filed by that date. This is an important date because it is 

usually the last day on which you can file a petition for review with the Board. 

However, if you prove that you received this initial decision more than 5 days 

after the date of issuance, you may file a petition for review within 30 days after 

the date you actually receive the initial decision. If you are represented, the 30-

day period begins to run upon either your receipt of the initial decision or its 

receipt by your representative, whichever comes first. You must establish the 

date on which you or your representative received it. The date on which the initial 

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27

decision becomes final also controls when you can file a petition for review with 

one of the authorities discussed in the “Notice of Appeal Rights” section, below. 

The paragraphs that follow tell you how and when to file with the Board or one of 

those authorities. These instructions are important because if you wish to file a 

petition, you must file it within the proper time period. 

BOARD REVIEW

You may request Board review of this initial decision by filing a petition 

for review. 

If the other party has already filed a timely petition for review, you may 

file a cross petition for review. Your petition or cross petition for review must 

state your objections to the initial decision, supported by references to applicable 

laws, regulations, and the record. You must file it with:

The Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.

Washington, DC 20419

A petition or cross petition for review may be filed by mail, facsimile (fax), 

personal or commercial delivery, or electronic filing. A petition submitted by 

electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and 

may only be accomplished at the Board's e-Appeal website 

(https://e-appeal.mspb.gov). 

NOTICE OF LACK OF QUORUM

The Merit Systems Protection Board ordinarily is composed of three 

members, 5 U.S.C. § 1201, but currently there are no members in place. Because a 

majority vote of the Board is required to decide a case, see 5 C.F.R. § 1200.3(a), 

(e), the Board is unable to issue decisions on petitions for review filed with it at 

this time. See 5 U.S.C. § 1203. Thus, while parties may continue to file petitions 

for review during this period, no decisions will be issued until at least two 

members are appointed by the President and confirmed by the Senate. The lack of 

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28

a quorum does not serve to extend the time limit for filing a petition or cross 

petition. Any party who files such a petition must comply with the time limits 

specified herein.

For alternative review options, please consult the section below titled 

“Notice of Appeal Rights,” which sets forth other review options.

Criteria for Granting a Petition or Cross Petition for Review

Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only 

issues raised in a timely filed petition or cross petition for review. Situations in 

which the Board may grant a petition or cross petition for review include, but are 

not limited to, a showing that: 

(a) The initial decision contains erroneous findings of material fact. (1) 

Any alleged factual error must be material, meaning of sufficient weight to 

warrant an outcome different from that of the initial decision. (2) A petitioner 

who alleges that the judge made erroneous findings of material fact must explain 

why the challenged factual determination is incorrect and identify specific 

evidence in the record that demonstrates the error. In reviewing a claim of an 

erroneous finding of fact, the Board will 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. 

(b) 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 

petitioner must explain how the error affected the outcome of the case. 

(c) 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. 

(d) New and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. To 

constitute new evidence, the information contained in the documents, not just the 

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29

documents themselves, must have been unavailable despite due diligence when 

the record closed. 

As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition 

for review, or a response to a petition for review, whether computer generated, 

typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A 

reply to a response to a petition for review is limited to 15 pages or 3750 words, 

whichever is less. Computer generated and typed pleadings must use no less than 

12 point typeface and 1-inch margins and must be double spaced and only use one 

side of a page. The length limitation is exclusive of any table of contents, table of 

authorities, attachments, and certificate of service. A request for leave to file a 

pleading that exceeds the limitations prescribed in this paragraph must be 

received by the Clerk of the Board at least 3 days before the filing deadline. Such 

requests must give the reasons for a waiver as well as the desired length of the 

pleading and are granted only in exceptional circumstances. The page and word 

limits set forth above are maximum limits. Parties are not expected or required to 

submit pleadings of the maximum length. Typically, a well-written petition for 

review is between 5 and 10 pages long.

If you file a petition or cross petition for review, the Board will obtain the 

record in your case from the administrative judge and you should not submit 

anything to the Board that is already part of the record. A petition for review 

must be filed with the Clerk of the Board no later than the date this initial 

decision becomes final, or if this initial decision is received by you or your 

representative more than 5 days after the date of issuance, 30 days after the date 

you or your representative actually received the initial decision, whichever was 

first. If you claim that you and your representative both received this decision 

more than 5 days after its issuance, you have the burden to prove to the Board the 

earlier date of receipt. You must also show that any delay in receiving the initial 

decision was not due to the deliberate evasion of receipt. You may meet your 

burden by filing evidence and argument, sworn or under penalty of perjury (see 5 

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30

C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail 

is determined by the postmark date. The date of filing by fax or by electronic 

filing is the date of submission. The date of filing by personal delivery is the 

date on which the Board receives the document. The date of filing by commercial 

delivery is the date the document was delivered to the commercial delivery 

service. Your petition may be rejected and returned to you if you fail to provide 

a statement of how you served your petition on the other party. See 5 C.F.R. 

§ 1201.4(j). If the petition is filed electronically, the online process itself will 

serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(1).

A cross petition for review must be filed within 25 days after the date of 

service of the petition for review.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial 

decision in accordance with the Board's regulations. 

NOTICE OF APPEAL RIGHTS

You may obtain review of this initial decision only after it becomes final, 

as explained in the “Notice to Appellant” section above. 5 U.S.C. § 7703(a)(1). 

By statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this decision when it becomes final, 

you should immediately review the law applicable to your claims and carefully 

follow all filing time limits and requirements. Failure to file within the 

applicable time limit may result in the dismissal of your case by your 

chosen forum. 

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Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date this decision becomes final. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

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32

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after this 

decision becomes final under the rules set out in the Notice to Appellant section, 

above. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board,

582 U.S. ____ , 137 S. Ct. 1975 (2017). 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. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after this decision 

becomes final as explained above. 5 U.S.C. § 7702(b)(1). 

If you submit a request for review to the EEOC 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 a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

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33

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and you wish to challenge the Board’s rulings on your whistleblower claims 

only, excluding all other issues, then you may file a petition for judicial review 

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction. The court of appeals must receive your petition for 

review within 60 days of the date this decision becomes final under the rules set 

out in the Notice to Appellant section, above. 5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

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34

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

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CERTIFICATE OF SERVICE

I certify that the attached Document(s) was (were) sent as indicated this 

day to each of the following: 

Appellant

Electronic Mail Delta Danielle Harris 

405 Autumn Terrace

Sebastian, FL 32958

Agency Representative

Electronic Mail Cecelia Townes 

Department of the Interior

75 Spring Street SW

Suite 304

Atlanta, GA 30303

November 18, 2019 /s/

(Date) JoAnn Atkinson

Paralegal Specialist

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DELTA DANIELLE HARRIS, 

Petitioner 

v. 

DEPARTMENT OF THE INTERIOR, 

Respondent 

Federal Circuit Docket No.: 2020-1522 

March 12, 2020

Motion for Extension 

Petitioner received a Notice of Docketing from the United States Court of Appeal for the Federal 

Circuit on Saturday March 7, 2020 dated March 3, 2020. 

Petitioner also received an Index List from the U.S. Merit Systems Protection Board, on Friday 

March 6, 2020, dated March 3, 2020. 

According to the above letters received Petitioner is required to meet the following deadlines: 

Form 10 -- Statement Concerning Discrimination is due March 17, 2020 

Form 11 -- Informal Brief due March 24, 2020 

The Petitioner respectfully asks the Court for a 30-day extension to the above deadlines. 

The Petitioner requests this extension for two reasons: 1) Petitioner recently had a major surgery 

on March 5, 2020 and is recovering and 2) The Petitioner is currently working on an EEOC case 

deadline that has already been extended due to the surgery and must meet that deadline. The 

recovery process is profoundly causing setbacks which delay my proficiency. 

The Petitioner is not qualified to represent herself and is without representation. Thus, the 

Petitioner needs extensive time to study, prepare, and understand the documentation that is 

required in the above submittals. The extension of 30-days will allow the Petitioner adequate 

time to properly file the documentation listed above. 

Respectfully submitted, 

Delta Harris 

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DELTA DANIELLE HARRIS, 

Petitioner 

v. 

DEPARTMENT OF THE INTERIOR, 

Respondent 

Federal Circuit Docket No.: 2020-1522 

March 12, 2020 

AMENDED: This document was amended and resubmitted to include the Certificate of Service 

page and sent to the Respondent March 17, 2020. 

Motion for Extension 

Petitioner received a Notice of Docketing from the United States Court of Appeal for the Federal 

Circuit on Saturday March 7, 2020 dated March 3, 2020. 

Petitioner also received an Index List from the U.S. Merit Systems Protection Board, on Friday 

March 6, 2020, dated March 3, 2020. 

According to the above letters received Petitioner is required to meet the following deadlines: 

Form 10 -- Statement Concerning Discrimination is due March 17, 2020 

Form 11 -- Informal Brief due March 24, 2020 

The Petitioner respectfully asks the Court for a 30-day extension to the above deadlines. 

The Petitioner requests this extension for two reasons: 1) Petitioner recently had a major surgery 

on March 5, 2020 and is recovering and 2) The Petitioner is currently working on an EEOC case 

deadline that has already been extended due to the surgery and must meet that deadline. The 

recovery process is profoundly causing setbacks which delay my proficiency. 

The Petitioner is not qualified to represent herself and is without representation. Thus, the 

Petitioner needs extensive time to study, prepare, and understand the documentation that is 

required in the above submittals. The extension of 30-days will allow the Petitioner adequate 

time to properly file the documentation listed above. 

Respectfully submitted, 

Delta Harris 

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CERTIFICATE OF SERVICE 

I hereby certify that that attached Documents were sent to as indicated to each of the following: 

Electronically mailed: Clerk of the Court 

 United States Court of Appeals for the Federal Circuit 

 prose@cafc.uscourts.gov

 Originally Submitted: March 12, 2020 

Electronically mailed: Respondent 

Director 

Commercial Litigation Branch 

Civil Division 

U.S. Department of Justice 

natcourts.appeals@usdoj.gov

natcourts.dockets@usdoj.gov

national.courts@usdoj.gov

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NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

DELTA DANIELLE HARRIS,

Petitioner

v.

DEPARTMENT OF THE INTERIOR,

Respondent

______________________

2020-1522

______________________

Petition for review of the Merit Systems Protection 

Board in No. AT-0752-19-0427-I-1.

______________________

ON MOTION

______________________

O R D E R

Upon consideration of Delta Danielle Harris’s motion 

to extend by 30 days the time to file her Statement Concerning Discrimination and her informal opening brief,

IT IS ORDERED THAT:

The motion is granted to the extent that Ms. Harris’s 

Statement Concerning Discrimination and her informal 

opening brief are due no later than April 30, 2020.

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2 HARRIS v. INTERIOR

March 18, 2020 

Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

s31

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123

FORM 8. Entry of Appearance

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

____________________________ v. ____________________________

No. _______

ENTRY OF APPEARANCE

(INSTRUCTIONS: Counsel should refer to Federal Circuit Rule 47.3. Pro se petitioners and 

appellants should read paragraphs 1 and 18 of the Guide for Pro Se Petitioners and Appellants. 

File this form with the clerk within 14 days of the date of docketing and serve a copy of it on the 

principal attorney for each party.)

Please enter my appearance (select one):

 _____Pro Se _____As counsel for: _______________________________

 Name of party

I am, or the party I represent is (select one):

 _____Petitioner _____Respondent _____Amicus curiae _____Cross Appellant

 _____Appellant _____Appellee _____Intervenor

As amicus curiae or intervenor, this party supports (select one):

 ___ Petitioner or appellant ___ Respondent or appellee

My address and telephone are:

 Name: _________________________________________________

 Law firm: _________________________________________________

 Address: _________________________________________________

 City, State and ZIP: _________________________________________________

 Telephone: _________________________________________________

 Fax #: _________________________________________________

 E-mail address: _________________________________________________

Statement to be completed by counsel only (select one):

 _____ I am the principal attorney for this party in this case and will accept all service 

 for the party. I agree to inform all other counsel in this case of the matters 

 served upon me.

 _____ I am replacing ______________ as the principal attorney who will/will not 

 remain on the case. [Government attorneys only.]

 _____ I am not the principal attorney for this party in this case.

Date admitted to Federal Circuit bar (counsel only): ______________

This is my first appearance before the United States Court of Appeals for the Federal Circuit 

(counsel only):

 _____Yes _____No

_____A courtroom accessible to the handicapped is required if oral argument is scheduled.

______________ ___________________________________

 Date Signature of pro se or counsel

cc: ___________________________________

Form 8

Reset Fields

DELTA DANIELLE HARRIS DEPARTMENT OF THE INTERIOR

20-1522

✔ DEPARTMENT OF THE INTERIOR

✔

Borislav Kushnir

United States Department of Justice, Commercial Litigation Branch

PO Box 480, Ben Franklin Station

Washington, DC 20044

(202) 307-5928

(202) 353-0461

Steven.Kushnir@usdoj.gov

✔

✔

March 20, 2020 /s/ Borislav Kushnir

Delta Danielle Harris

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CERTIFICATE OF SERVICE

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20th

March 2020

Entry of Appearance

✔

✔

Delta Danielle Harris

405 Autumn Terrace

Sebastian, FL 32958

/s/ Borislav Kushnir

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sttUEJVED

mar 23 2U2U

FORM 10. Statement Concerning Discrimination Form 10

"""g" Steles Court of rji TIib hioerai Cirait

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

H^riy^r ^ ."S "Tv^-io n rj/C

No.^o7o^ 1^27

PF.TTTTONRR'S FED. CIR. R. 15(c^ STATEMENT CONCERNING DISCRIMINATION

Please complete sections A, B. and C.

A / / A ^

Section A:

. / Please complete sections

^ J^/A

Check the statements below that apply to your case. Usually, it is one statement, but it may be

more. Do not alter or add to any of the statements.

□ (1) No claim of discrimination by reason of race, sex, age, national origin, or handicapped condition

has been or will be made in this case.

□ (2) Any claim of discrimination by reason of race, sex, age, national origin, or handicapped condition

raised before and decided by the Merit Systems Protection Board or arbitrator has been abandoned

or will not be raised or continued in this or any other court.

□ (3) The petition seeks review only of the Board's or arbitrator's dismissal of the case for lack of

jurisdiction or for untimeliness.

□ (4) The case involves an application to the Office of Personnel Management for benefits.

□ (5) The case was transferred to this court from a district court and I continue to contest the

transfer.

Section B:

Answer the following: Have you filed a discrimination case in a United States district court from

the Board's or arbitrator's decision? q identify any case.

Section C;

Answer the following: Have you filed a discrimination case in the Equal Employment Opportunity Commission fi:om the Board's or arbitrator's decision?^ Yes^^No If yes, identify any case

3/ /y 1^0

Date Petitioner's signature

Mail this form with the petition for review or within 14 days of the date of docketing of the petition for

review to:

Clerk of Court

United States Court of Appeals for the Federal Circuit

717 Madison Place, NW

Washington, DC 20439

cc:

Reset Fields

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DELTA DANIELLE HARRIS,

Petitioner

V.

DEPARTMENT OF THE INTERIOR,

Respondent

Federal Circuit Docket No.: 2020-1522

March 17, 2020

FORM 10: Supplemental Attachment

Statement Concerning Discrimination

NOTE: Petitioner submitted a Motion for Extension of time on March 12, 2020 (attached). As

of today, Petitioner has not received confirmation to that Motion, Thus, Petitioner is submitting

the Statement Concerning Discrimination Form JO in lieu of a granted extension.

Section A

Not Applicable: Statements 1 through 5 do not apply to the Petitioner's case.

Section C

Petitioner's response: NO

The Petitioner is currently involved in a different case with the Equal Employment Opportunity

Commission involving the Department of the Interior.

EEOC No. 510-2018-X-00306X Complainant was discriminated against and subjected to a

hostile work environment based on disability (adverse actions

and failure to provide reasonable accommodations), reprisal (two

Incidents of opposition of discrimination, denied reasonable

accommodations which were requested since 2015), prior sexual

harassment complaint, and ongoing EEO activity, prior sexual

harassment claim and disparate treatment.

Respectfully submj

Delta Hari^

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(93 of 117) (96 of 120) Case: 20-1522 Document: 8 Page: 3 Filed: 03/23/2020 Case: 20-1522 Document: 17-3 Page: 93 Filed: 06/18/2020

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Case 2:20-cv-14195-RLR Document 1 
DELTA DANIELLE HARRIS, 

Petitioner 

V. 

DEPARTMENT OF THE INTERIOR, 

Respondent 

Federal Circuit Docket No.: 20-1522 

April 8, 2020 

Motion Requesting Supplemental Evidence to the Record 

The Petitioner, Delta Danielle Harris, respectfully requests to submit supplemental evidence 

from the previously filed wrongful termination EEO Formal Administrative Record pertaining to 

this case to be added to the Court of Appeals record, specifically, the Report of Investigations. 

 As instructed by the Department of the Interior’s policy and procedure, the Petitioner followed 

the Federal Sector EEO Formal complaint process regarding her wrongful termination. Since the 

complaint is a ‘mixed-case’, the Petitioner elected for MSPB review. 

The Petitioner’s Administrative Complaint Record is missing from the MSPB’s record. 

It was not known to the Petitioner, until recently, that the Agency’s EEO Administrative 

Complaint Records pertaining to the Petitioners wrongful termination was not provided and 

included into the MSPB’s records. 

The Petitioner’s EEO Administrative Complaint Record is imperative to this case and is the 

premise to the Petitioner’s defense. 

Respectfully requested, 

Delta Harris 

 

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Certificate of Service 

 I certify that this Motion was sent via email, on April 8, 2020, to the following recipients: 

U.S. Court of Appeals of the Federal Circuit 

 prose@cafc.uscourts.gov

United States Department of Justice, Commercial Litigation Branch 

 Steven Kushnir 

Steven.Kushnir@usdoj.gov

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DELTA DANIELLE HARRIS, 

Petitioner 

V. 

DEPARTMENT OF THE INTERIOR, 

Respondent 

Federal Circuit Docket No.: 20-1522 

April 8, 2020 

Motion to Submit Documents from the MSPB Listed Index 

The Petitioner, Delta Danielle Harris, respectfully requests to submit the documents she provided 

to the MSPB that are listed in the MSPB’s Listed Index. 

These documents are imperative to this case and is the premise to the Petitioner’s defense. 

Respectfully requested, 

Delta Harris 

deltaharris7@gmail.com 

 

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Certificate of Service 

 I certify that this Motion was sent via email, on April 8, 2020, to the following recipients: 

U.S. Court of Appeals of the Federal Circuit 

 prose@cafc.uscourts.gov

United States Department of Justice, Commercial Litigation Branch 

 Steven Kushnir 

Steven.Kushnir@usdoj.gov

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DELTA DANIELLE HARRIS, 

Petitioner 

V. 

DEPARTMENT OF THE INTERIOR, 

Respondent 

Federal Circuit Docket No.: 20-1522 

April 12, 2020 

Motion Requesting EEOC Case as Supplemental Evidence to the Record 

BACKGROUND—On January 12, 2015, Petitioner informed her new (Oct 2014) 

Supervisor Mr. Tim Breen (Breen) of the sexual harassment from a co-worker, Mr. John 

Galvez (Galvez). Subsequently, Breen and Agency Management discriminated against 

Petitioner and subjected her to reprisal for two incidents of opposition to discrimination 

for reporting sexual harassment by Galvez, and requesting reasonable accommodations. 

Additional, Breen and Agency management created a hostile work environment based on 

gender, and medical disability issues. Breen and Agency Management knew about 

medical disability issues the Petitioner was experience at the time they were creating the 

hostile work environment. Based upon Breen and Agency Management activities against 

Petitioner and subsequent reprisal, the Petitioner suffered adverse actions and denied 

reasonable accommodations and experienced disparate treatment this ultimately lead to 

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Petitioner’s removal from Federal Service. 

The Petitioner graduated with honors, Cum Laude, from the University of Florida with a 

degree in Environmental Management and later earned a Masters Certificate in 

Sustainable Land Management Resources. With almost 10 years of Service, the 

Petitioner had a stellar career, with above average performance reviews and rewards. It 

was not until she notified management of sexual harassment and subsequent health issues 

that adverse actions were taken against her which led the filing a formal EEOC 

discrimination compliant. 

 

Interior's Work Environment Survey Results 

Secretary Zinke calls for “culture change” at Interior 

EXCERPT OF TRANSCRIPT 12/14/2017 

“Hi, I’m Secretary Ryan Zinke. 

Two months ago, I went to the Grand Canyon to speak to our 

employees of the National Park Service, after we released a survey 

on harassment in the workplace. 

Now today, we are taking the next step and releasing the results of 

a Department-wide survey on the same topic. 

It’s Time to Acknowledge That We Have a Problem. 

Unfortunately, the survey shows that harassment, intimidation, 

and 

discrimination have been a common practice at Interior.... 

I’m speaking today to make it clear that the culture of harassment 

and intimidation...has come to an end. 

I have already removed four senior leaders that were guilty of 

inappropriate behavior, and I will remove four hundred more if 

necessary. 

 

Intimidation, harassment, and discrimination is a cancer to any 

organization. However deep it goes, we will remove it from 

Interior. 

No one at Interior should have to suffer silently – afraid of 

retaliation or isolation – when they’re just trying to do their job... 

...In The Past, The Words “Zero Tolerance” Have Been An 

Empty Promise. 

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While Past Leaders at Interior Have Said the Right Things, 

There Was Very Little If Any Action. 

To be clear, Interior will no longer protect predators or accept 

inappropriate behavior. 

Deputy Secretary Bernhardt and I have directed that each bureau 

head develops an action plan for stopping harassment, and ensure 

that the right 

resources are available for every employee. 

If you have experienced harassment or discrimination, please go 

to DOI.gov/employees where there’s a variety of resources, 

as well as full survey results, available. 

Please...if you see something that’s not right don’t ignore it. 

It’s everyone’s responsibility to take a stand and lead 

from the front. 

I’m committed to ending harassment and the Deputy Secretary and 

I will continue to keep you updated on actions taken in the weeks 

and months to come. 

This is the start of a cultural change at the 

Department of the Interior, and we need your help. 

My goal is simple: I want Interior to be the best possible place 

to work in the government. We have a noble mission, we 

have great, and passionate people, and we – as a team – can 

end harassment and intimidation. 

Thank you, and God bless. 

Source: https://www.doi.gov/employees/interiors-work-environment-survey-results

The Petitioner is currently involved in an EEOC discrimination case: No. 510-2018-

00306X. This case was filed during her employment with the U.S. Fish & Wildlife 

Service (FWS) and after much delay is finally being processed. 

The case is the prelude of the discrimination and retaliation which led to her wrongful 

termination. 

The Agency violated numerous Federal laws and Department of the Interior/FWS 

policies and procedure regarding sexual harassment, reprisal, discrimination, and 

reasonable accommodations. 

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Since her termination, the Petitioner suffered unnecessary events to her wrongful 

termination: i.e. homelessness, loss of vehicle, and financial stability for survival. 

The Petitioner, Delta Danielle Harris, respectfully requests to submit supplemental 

evidence from the previously filed EEO Formal complaint which is currently in judicial 

review. 

Evidence the Petitioner requests to supplement the record are as follows: 

1. Report of Investigations, 

2. All medical records provided to the Agency, 

3. Blue Cross & Blue Shield Patient Report listing office visits 2015-2018, 

4. Email correspondences between the Petitioner and Agency, and 

5. Agency MSPB Discovery responses. 

The Petitioner’s EEO Administrative Complaint Record is imperative to this case and is 

the premise to the Petitioner’s defense. The Petitioner is not an attorney and not qualified 

to represent herself. The information was not previously included due to the fact the 

Petitioner was unaware this information could have been submitted. 

Respectfully requested, 

Delta Harris 

 

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Certificate of Service 

 I certify that this Motion was sent via email, on April 13, 2020, to the following 

recipients: 

U.S. Court of Appeals of the Federal Circuit 

 prose@cafc.uscourts.gov

United States Department of Justice, Commercial Litigation Branch 

 Steven Kushnir 

Steven.Kushnir@usdoj.gov

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NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

DELTA DANIELLE HARRIS,

Petitioner

v.

DEPARTMENT OF THE INTERIOR,

Respondent

______________________

2020-1522

______________________

Petition for review of the Merit Systems Protection 

Board in No. AT-0752-19-0427-I-1.

______________________

PER CURIAM.

O R D E R

The court considers its jurisdiction over this petition 

for review.

Delta Danielle Harris appealed to the Merit Systems 

Protection Board from her removal from the Department of 

the Interior. The administrative judge’s initial decision affirmed the removal and rejected Ms. Harris’s affirmative 

defenses, which included disability discrimination. Ms. 

Harris then petitioned for this court’s review.

Although this court possesses jurisdiction to review 

certain decisions of the Board, 5 U.S.C. § 7703(b)(1)(A), in 

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2 HARRIS v. INTERIOR

cases involving discrimination claims, the appropriate forum for review is the district court, 5 U.S.C. § 7703(b)(2); 

Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1985 (2017). 

Ms. Harris’s filings with this court indicate that she intends to pursue her discrimination claims. 

Accordingly,

IT IS ORDERED THAT:

(1) Within 30 days from the filing of this order, the parties are directed to show cause why this case should not be 

transferred to a United States district court, and which 

court would be most appropriate. 

(2) The briefing schedule is stayed.

April 21, 2020 

Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

s31

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DELTA DANIELLE HARRIS, 

Petitioner 

v. 

DEPARTMENT OF THE INTERIOR, 

Respondent 

Federal Circuit Docket No.: 2020-1522 

April 28, 2020 

Responcse to Order to Transfer Case to United States District Court 

On April 27, 2020, the Petitioner, Delta Danielle Harris, received Order from the United 

States Court of Appeals for the Federal Circuit (Court of Appeals) ordering the parties to 

show cause to why this case should not be transferred to the United States district court 

and to identify which court would be most appropriate. 

The Petitioner intends to pursue her discrimination claims. The Petitioner concurs with 

the Court of Appeals to transfer the case to the United States district court. The Petitioner 

advises the Court of Appeals transfer the case to the United States District Court Southern 

District of Florida. 

Thank you, 

Delta Harris 

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Certificate of Service 

 I certify that this Motion was sent via email, on April 28, 2020, to the following 

recipients: 

U.S. Court of Appeals of the Federal Circuit 

 prose@cafc.uscourts.gov

United States Department of Justice, Commercial Litigation Branch 

 Steven Kushnir 

Steven.Kushnir@usdoj.gov

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

)

DELTA DANIELLE HARRIS, )

)

Petitioner, )

)

v. ) No. 2020-1522

)

DEPARTMENT OF THE INTERIOR, )

)

Respondent. )

)

RESPONDENT’S RESPONSE TO ORDER TO SHOW CAUSE

On April 21, 2020, the Court issued an order noting that petitioner, Delta 

Danielle Harris, alleged an affirmative defense of discrimination before the Merit 

Systems Protection Board (MSPB or board), and that “Ms. Harris’s filings with 

this court indicate that she intends to pursue her discrimination claims.” ECF No. 

12 at 1-2. The Court directed the parties to “show cause why this case should not 

be transferred to a United States district court,” and inquired “which court would 

be most appropriate.” Id. at 2. In response to the Court’s order, respondent, the 

Department of the Interior (Interior), states that this Court does not possess 

jurisdiction over this “mixed case.” Because no district court possesses

jurisdiction over this matter either, the Court should dismiss the case in lieu of 

transferring it to a district court.

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2

The Supreme Court has defined a “mixed case” as one in which “an 

employee complains of a personnel action serious enough to appeal to the MSPB 

and alleges that the action was based on discrimination.” Kloeckner v. Solis, 568 

U.S. 41, 44 (2012) (emphasis in original). See also Perry v. Merit Sys. Prot. Bd., 

137 S. Ct. 1975, 1980 (2017); 29 C.F.R. § 1614.302(a)(2) (2016). Whether such a 

“mixed case” is decided on the merits, on procedural grounds, or for lack of 

jurisdiction, the proper forum for judicial review is a United States district court, 

pursuant to 5 U.S.C. §§ 7702 and 7703. See Perry, 137 S. Ct. at 1981-82, 1985. 

This Court possesses jurisdiction to review an adverse action in a “mixed case” 

only if the petitioner abandons any claim of discrimination raised before the board. 

Diggs v. Dep’t of Hous. & Urban Dev., 670 F.3d 1353, 1355 n.2 (Fed. Cir. 2011)

(citing Fed. Cir. R. 15(c)).

Ms. Harris held the position of Fish and Wildlife Biologist within Interior’s 

South Florida Ecological Services Office in Vero Beach, Florida. Initial Decision 

at 2, ECF No. 3. She was removed from this position on April 20, 2018, for 

absence without leave, failure to follow leave procedures, lack of candor, misuse of 

a Government-owned vehicle, and inappropriate conduct. Id. at 3. Ms. Harris 

appealed her removal to the board, and argued, in part, that Interior discriminated 

against her on the basis of a disability. Id. at 19-24. The board rejected Ms. 

Harris’s affirmative defense, and affirmed her removal. See id.

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3

Ms. Harris then appealed the board’s decision to this Court. In her statement 

concerning discrimination, Ms. Harris informed the Court that she continues to 

pursue her disability discrimination claim through a pending complaint to the 

Equal Employment Opportunity Commission (EEOC). ECF No. 8. And in 

response to the Court’s order to show cause, Ms. Harris made clear that she 

“intends to pursue her discrimination claims.” ECF No. 13. Because Ms. Harris 

has not abandoned her claim of disability discrimination, this Court lacks 

jurisdiction over her “mixed case.” See Kloeckner, 568 U.S. at 44; Perry, 137 S. 

Ct. at 1980; Diggs, 670 F.3d at 1355 n.2.

The remaining question is whether the Court should transfer the case to a 

United States district court. If this Court “finds that there is a want of jurisdiction, 

the court shall, if it is in the interest of justice, transfer such action or appeal to any 

other such court . . . in which the action or appeal could have been brought at the 

time it was filed or noticed.” 28 U.S.C. § 1631. “It is well settled that transfer of a 

case to another court is only permissible if the destination court has subject matter 

jurisdiction to hear the case.” Alvarado Hosp., LLC v. Price, 868 F.3d 983, 990 

(Fed. Cir. 2017). The destination court’s jurisdiction is thus the “crucial inquiry” 

when deciding whether a case should be transferred pursuant to 28 U.S.C. § 1631. 

Id.

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4

In a “mixed case,” an employee may seek district court review of the board’s 

decision with respect to the underlying personnel action and the claim of 

discrimination. See 5 U.S.C. § 7703(b)(2). But in the event the employee files a 

complaint with the EEOC, the board’s decision “shall be a judicially reviewable 

action as of . . . the date the [EEOC] determines not to consider the decision . . .” 5 

U.S.C. § 7702(a)(3)(B). In other words, if the employee files a complaint with the 

EEOC, and that complaint remains pending before the EEOC, the board’s decision 

is not yet reviewable by a district court.

In response to the Court’s order to show cause, Ms. Harris advised that the 

case should be transferred to the United States District Court for the Southern 

District of Florida. See ECF No. 13. But because the EEOC had not resolved her 

complaint when she filed this appeal (and, in fact, that EEOC complaint remains 

pending today), that district court does not have subject-matter jurisdiction over 

this case. See 5 U.S.C. § 7702(a)(3)(B). The Court should thus dismiss the case in 

lieu of transferring it to a district court. See 28 U.S.C. § 1631; Alvarado Hosp., 

868 F.3d at 990.

CONCLUSION

For the foregoing reasons, the Court should dismiss the case.

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5

Respectfully submitted,

JOSEPH H. HUNT

Assistant Attorney General

ROBERT E. KIRSCHMAN, JR. 

Director

/s/ Claudia Burke

CLAUDIA BURKE

Assistant Director

/s/ Borislav Kushnir

BORISLAV KUSHNIR 

Trial Attorney

Commercial Litigation Branch

Civil Division

U.S. Department of Justice

P.O. Box 480

Ben Franklin Station

Washington, DC 20044

Telephone: (202) 307-5928

Facsimile: (202) 353-0461

Email: Steven.Kushnir@usdoj.gov

May 19, 2020 Attorneys for Respondent

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6

CERTIFICATE OF COMPLIANCE

This response complies with the typeface and type-style limitations of Fed. 

R. App. P. 27(d)(1)(E), 32(a)(5), and 32(a)(6), because it was prepared in a 

proportionally spaced typeface, 14 point Times New Roman font, using Microsoft 

Word. This motion also complies with the length limitations of Fed. R. App. P. 

27(d)(2) because it contains 858 words.

/s/ Borislav Kushnir

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7

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of May, 2020, a copy of the foregoing 

“RESPONDENT’S RESPONSE TO ORDER TO SHOW CAUSE” was filed 

electronically. A copy of this filing was served via email and First Class Mail on 

petitioner at the following address:

Delta Danielle Harris

405 Autumn Terrace

Sebastian, FL 32958

Email: deltaharris7@gmail.com

/s/ Borislav Kushnir

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DELTA DANIELLE HARRIS, 

Petitioner 

V. 

DEPARTMENT OF THE INTERIOR, 

Respondent 

Federal Circuit Docket No.: 20-1522 

May 22, 2020 

Petitioner’s Response to Agency’s Response to Show Cause

The Petitioner, Delta Danielle Harris, respectfully requests the Court of Appeals not dismiss the 

case and transfer case to the District Court. 

CAUSE #1

On April 8, 2020, the Petitioner filed a motion with the Court of Appeals requesting to 

supplement vital evidence to add to the record due to the Agency’s lack to supply the Merit 

Systems Protection Board (Board) all sustainable evidence to the wrongful termination. As of 

today, Petitioner has heard no response to her motion request. 

The Agency failed to present to the Board, the Petitioner’s initial April 2018 EEOC complaint 

for wrongful termination involving discrimination. The evidence consisted of the EEOC 

Administrative Record filed by the Petitioner in 2018. 

The Agency had the responsibility to provide the evidence to the Board but failed to do so. 

This vital substantial evidence was lacking from the Board’s review included the Report of 

Investigation (ROI) and the Agency’s Final Decision (FAD). 

 . 

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The Board was misled by the Agency. The facts were not properly presented. Based on the 

failure of the Agency to present the facts, the Board did not consider substantial evidence. 

CAUSE #2

On May 19, 2020, the Agency submitted a pleading titled: RESPONDENT’S RESPONSE TO 

ORDER TO SHOW CAUSE. 

The 2017 EEOC formal complaint of discrimination are different from the discrimination being 

alleged regarding Petitioner’s removal in 2018. The case should accordingly proceed to district 

court. 

The Agency claims that your discrimination claims are already pending before the EEOC, which 

is not true. The case before currently under review by the EEOC is a formal compliant made in 

2017 prior to the Petitioner’s wrongful termination. 

Below in an excerpt from the November 18, 2018 MSPB Initial Decision, p 31-32 

Judicial or EEOC review of cases involving a claim of discrimination. 

This option applies to you only if you have claimed that you were 

affected by an action that is appealable to the Board and that such 

action was based, in whole or in part, on unlawful discrimination. If so, 

you may obtain judicial review of this decision—including a disposition 

of your discrimination claims—by filing a civil action with an appropriate 

U.S. district court ... 

Therefore, the case is not permissible to be dismissed and should be moved to the district court. 

Respectfully requested, 

Delta Harris 

 

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Certificate of Service

 I certify that this Motion was sent via email, on May 22, 2020, to the following recipients: 

U.S. Court of Appeals of the Federal Circuit 

 prose@cafc.uscourts.gov

United States Department of Justice, Commercial Litigation Branch 

 Steven Kushnir 

Steven.Kushnir@usdoj.gov

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