UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CONRAD D. OSBY,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

SF-0752-17-0346-I-1

DATE: May 25, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Ronald P. Ackerman, Culver City, California, for the appellant.

Maureen Ney, Esquire, and Steven R. Snortland, Esquire, Los Angeles, 

California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

upheld his removal. Generally, we grant petitions such as this one only in the 

following circumstances: the initial decision contains erroneous findings of 

material fact; the initial decision is based on an erroneous interpretation of statute 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

or regulation or the erroneous application of the law to the facts of the case; the 

administrative judge’s rulings during either the course of the appeal or the initial 

decision were not consistent with required procedures or involved an abuse of 

discretion, and the resulting error affected the outcome of the case; or new and 

material evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant was a GS-11 Patient Representative (Transitional Patient 

Advocate) for the agency. Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 33. His 

basic job duties were to “act as a communicator, facilitator, and problem solver” 

for patients in the Veterans Administration Healthcare System, and to be a 

personal advocate for these individuals as they move through the system. IAF,

Tab 18 at 25. Effective April 3, 2017, the agency removed the appellant based on 

three charges: (1) Entering Incorrect Information Into a Patient’s Records

(12 specifications); (2) Inappropriate Conduct (6 specifications); and (3) Failure 

to Follow Instructions (13 specifications). IAF, Tab 5 at 34-36, 48-54. The 

appellant filed a Board appeal challenging his removal and raising an affirmative 

defense of retaliation for prior equal employment opportunity (EEO) activity. 

IAF, Tab 1, Tab 17 at 5-10.

¶3 After holding a hearing, the administrative judge issued an initial decision 

upholding the removal. IAF, Tab 24, Initial Decision (ID). She sustained all 

three charges, although not all of the underlying specifications, and found that the 

agency established a nexus between the charges and the efficiency of the service. 
3

ID at 4-24. She found that the removal penalty was reasonable, and that the 

appellant failed to prove his affirmative defense. ID at 24-28.

¶4 The appellant has filed a petition for review, disputing the charges and the 

penalty determination, and renewing his allegation of reprisal for EEO activity. 

Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR

File, Tab 3.

ANALYSIS

¶5 In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the 

burden of proving by preponderant evidence that its action was taken for such 

cause as would promote the efficiency of the service. 5 U.S.C. 

§ 1201.56(b)(1)(ii); MacDonald v. Department of the Navy, 4 M.S.P.R. 403, 404 

(1980). To meet this burden, the agency must prove its charge, establish a nexus 

between the charge and the efficiency of the service, and demonstrate that the 

penalty imposed was reasonable. Pope v. U.S. Postal Service, 114 F.3d 1144, 

1147 (Fed. Cir. 1997). However, even if the agency carries this burden, the 

removal may not be sustained if the appellant shows that it was based on a 

prohibited personnel practice described in 5 U.S.C. § 2302(b). 5 U.S.C. 

§ 7701(c)(2)(B); Mata v. Department of the Army, 114 M.S.P.R. 6, ¶ 11 (2010); 

5 C.F.R. § 1201.56(c)(2).

¶6 Under Charge 1, Entering Incorrect Information Into a Patients’ Records, 

the agency essentially charged the appellant with entering into the Computerized 

Patient Records System (CPRS) that he provided several patients assistance that 

he did not actually provide. IAF, Tab 5 at 48-50. The administrative judge found 

that the agency proved 7 of the 12 specifications and she therefore sustained the 

charge. ID at 4-14. On petition for review, the appellant disputes 

Specifications 5-9. PFR File, Tab 1 at 3-4. However, because the administrative 

judge did not sustain these specifications, we find that the appellant’s argument is 

immaterial and provides no basis to disturb the initial decision. ID at 2 -3, 9-12. 
4

As for the specifications that the administrative judge did sustain, the appellant 

argues that the agency never trained him on how to enter data into CPRS. PFR 

File, Tab 1 at 3. However, even if true, we find that this argument is likewise 

immaterial. A lack of CPRS training might explain a deficiency in the appellant’s 

CPRS data, but it would not explain why he entered affirmatively incorrect data 

into the system. For the reasons explained in the initial decision, we agree with 

the administrative judge that the agency proved Specifications 1-4 and 10-12. ID 

at 4-8, 12-14. We therefore agree with the administrative judge that the agency 

proved its charge. ID at 14; see Burroughs v. Department of the Army, 918 F.2d 

170, 172 (Fed. Cir. 1990) (finding that, when more than one event or factual 

specification supports a single charge, proof of one or more, but not all, of the 

supporting specifications is sufficient to sustain the charge).

¶7 Under Charge 2, Inappropriate Conduct, the agency essentially charged the 

appellant with sending six disrespectful or insubordinate emails to his supervisor. 

IAF, Tab 5 at 50-51. The administrative judge sustained the charge and all 

specifications except for Specification 4. ID at 14-19. On petition for review, 

the appellant argues that his supervisor never raised any concerns to him about 

his communications until his removal was proposed. PFR File, Tab 1 at 4. We 

find that this argument goes more properly to the issue of penalty, discussed 

below. The appellant does not contest the inappropriateness of the emails 

underlying the five sustained specifications, and we agree with the administrative 

judge, for the reasons explained in her initial decision, that they were, in fact, 

inappropriate. ID at 14-19. We therefore agree with the administrative judge that 

the agency proved its charge. ID at 19; see Burroughs, 918 F.2d at 172.

¶8 Under Charge 3, Failure to Follow Instructions, the agency included 

1 specification related to the appellant’s failure to follow instructions for logging 

in for telework, and 12 specifications related to his failure to follow instructions 

to indicate in CPRS when a patient “no-showed” to an appointment. IAF, Tab 5 

at 51-53. The administrative judge sustained Specification 1, regarding the 
5

telework login, as well as Specifications 3-11 and 13, regarding the CPRS 

no-show data. ID at 2-3, 19-23. On petition for review, the appellant does not 

challenge the administrative judge’s findings regarding Specification 1. For the 

reasons explained in the initial decision, we agree with the administrative judge 

that the agency proved that specification. ID at 19-20. 

¶9 As for the remaining specifications regarding the CPRS no-show data, the 

appellant appears to argue that he did not follow instructions to enter this data 

because he was concerned about violating the privacy provisions of the Health 

Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 

No. 104-191, 110 Stat. 1936. PFR File, Tab 1 at 4. We seriously doubt that the 

appellant had a good faith belief that placing no-show information in a medical 

record could possibly violate HIPAA. Moreover, even if the appellant were 

genuinely concerned that his supervisor’s instructions might somehow conflict 

with the HIPAA privacy requirements, he could have asked his supervisor for 

guidance in navigating the privacy issue, but we see no indication that he did so. 

We do not credit the appellant’s assertion that he had no opportunity to ask 

questions. PFR File, Tab 1 at 4. Finally, the appellant questions the source of the 

agency’s information that these patients no-showed to their appointments. Id. 

The appellant’s supervisor testified that she deduced from the absence of any 

follow-up documentation in their notes that these patients no-showed to their 

scheduled appointments. Hearing Recording, July 25, 2017, Track 7 at 42:12 

(testimony of the appellant’s supervisor). We find that this circumstantial 

evidence was sufficient to establish that the patients no-showed, as alleged. For 

the reasons explained in the initial decision, we thus agree with the administrative 

judge that the agency proved Specifications 3-11 and 13. ID at 20-23. We agree 

with the administrative judge that the agency proved its charge. ID at 23; see

Burroughs, 918 F.2d at 172.

¶10 The appellant also disputes the penalty, arguing that he was never counseled 

or placed on a performance improvement plan prior to his removal. PFR File, 
6

Tab 1 at 4-5. To the extent that the appellant is arguing that he was not on notice 

that his conduct was unacceptable, we agree with the administrative judge that he 

was on notice, either through his supervisor’s emails or by virtue of simply 

having worked with that supervisor for 8 years. ID at 27-28; see Social Security 

Administration v. Carr, 78 M.S.P.R. 313, 340 (1998) (holding that even without 

formal prior notice, an employee should have known that vulgar language was 

inappropriate), aff’d, 185 F.3d 1318 (Fed. Cir. 1999). There is no requirement 

under 5 U.S.C. chapter 75 that an agency provide an employee with a specific 

warning before it proposes an adverse action. Flanagan v. Department of the 

Army, 44 M.S.P.R. 378, 381 (1990). Nor is there any general requirement that an

agency use progressive discipline when its table of penalties lists removal as an 

option for a first occurrence of the proven misconduct. See Roberson v. Veterans 

Administration, 27 M.S.P.R. 489, 493 (1985). In this case, removal is within the 

range for a first occurrence of either intentionally misstating a material fact 

(Charge 1) or disrespectful conduct towards a supervisor (Charge 2). IAF, Tab 6 

at 63, 66. The appellant also argues, with supporting documentation, that the 

administrative judge mistakenly found that he was suspended twice in 2009, when 

in fact he was only suspended once, but served his suspension over two 

nonconsecutive periods. PFR File, Tab 1 at 1-2, 6-9. He argues that he was 

unable to explain this to the administrative judge because the agency “did not 

provide him with the information” until after the initial decision was issued. Id.

at 2. As an initial matter, we find that the notice of proposed removal indicates 

that the appellant was suspended twice in 2009, so he should have been aware of 

this issue well before his Board appeal was even filed. IAF, Tab 1 at 53. 

Furthermore, to the extent that the appellant is arguing that the agency failed to 

produce the suspension documentation during discovery, it was incumbent upon 

him to file a timely motion to compel to obtain this information. See Ioannou v. 

Office of Personnel Management, 56 M.S.P.R. 426, 431 (1993), abrogated on 

other grounds by Ruskin v. Office of Personnel Management, 73 M.S.P.R. 544
7

(1997). In any event, there was nothing to prevent the appellant from explaining 

this issue to the administrative judge even absent supporting documentation. 

Moreover, even considering that the appellant served one prior 30-day 

suspension, rather than two prior 15-day suspensions, this fact is of insufficient 

weight to alter the outcome of the penalty analysis. For the reasons explained in 

the initial decision, we agree with the administrative judge that the Board lacks 

an adequate basis to disturb the agency-imposed penalty of removal. ID at 26-28; 

see generally Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). 

¶11 Finally, the appellant renews his claim that his removal was retaliation for 

his prior EEO activity. PFR File, Tab 1 at 3. We find that this argument 

constitutes mere disagreement with the administrative judge’s analysis of the 

issue, and as such, provides no basis to disturb the initial decision. See Weaver v. 

Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980). For the reasons 

explained in the initial decision, we agree with the administrative judge that the 

appellant did not prove this affirmative defense. 2 ID at 24-26.

NOTICE OF APPEAL RIGHTS3

You may obtain review of this final decision. 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 

 

2 Because we discern no error with the administrative judge’s motivating factor analysis 

or conclusion regarding this claim, we do not reach the question of whether retaliation 

was a “but-for” cause of the removal action. See Pridgen v. Office of Management and 

Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33. It is unclear from the record whether the 

prior EEO activity was based on a claim of disability discrimination. Assuming 

arguendo that it was, the appellant would need to prove that the retaliation was a but-for 

cause of the action at issue in this case. See Pridgen, 2022 MPSB 31, ¶¶ 45-47. We 

find that the appellant has not met this burden.

3

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
8

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 final decision, 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 

within 60 calendar days of the date of issuance of this decision. 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 particu lar 

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 
9

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 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 you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. 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 you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 
10

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

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 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 your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction. 4The court of appeals must receive your 

 

4

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 
11

petition for review within 60 days of the date of issuance of this decision. 

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. 

 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
12

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.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board