UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JENEIL H. MAGLOIRE,

Appellant,

v.

GENERAL SERVICES 

ADMINISTRATION,

Agency.

DOCKET NUMBER

AT-0752-19-0778-I-1

DATE: August 16, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jennifer Robinson, Denver, Colorado, for the appellant.

Carisa LeClair and Jaron E. Chriss, Atlanta, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

sustained the agency’s charge of absence without leave (AWOL) and mitigated 

the appellant’s removal to a 30-day suspension. Generally, we grant petitions 

such as this one only in the following circumstances: the initial decision contains 

 

1A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 

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

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

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

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

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

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative judge’s rulings during either the course of 

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. 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 Effective September 30, 2018, the agency removed the appellant from her 

position as a GS-14 Realty Officer in the agency’s Real Property Utilization and 

Disposal Division on a single charge of AWOL. Initial Appeal File (IAF), Tab 4 

at 4, 5-9. The charge was supported by 41 specifications alleging that the 

appellant had failed to report to work and did not contact her supervisor to 

request approval for her absences between May 14 and July 16, 2018. Id. at 5-9, 

39-46. The appellant filed a formal equal employment opportunity (EEO) 

complaint in which she claimed that her removal resulted from disability 

discrimination based on her medical conditions of cognitive issues, memory loss, 

and anxiety disorder. IAF, Tab 8 at 5-7. On August 16, 2019, the agency issued 

its Final Agency Decision on the appellant’s EEO complaint, finding that the 

agency did not subject the appellant to discrimination on the basis of her 

disability. Id. at 8-21. The appellant timely filed this appeal on September 14, 

2019. IAF, Tab 1. 
3

¶3 After holding a hearing, the administrative judge determined that, on the

earliest date for which the agency charged the appellant as AWOL, she had 

exhausted her sick and annual leave. IAF, Tab 43, Initial Decision (ID) at 12. 

However, he determined that, during the time that the agency alleged she was 

AWOL, the appellant had 35 hours of leave available to her under the Family and 

Medical Leave Act (FMLA).

2

 ID at 12-13. Presuming that the appellant had a 

FMLA-qualifying reason for her absence for those 35 hours, the administrative 

judge found that the agency established that the appellant would not have had 

FMLA leave available for her use on at least 36 of the 41 days that the agency 

alleged she was AWOL. ID at 13. The administrative judge also determined the 

agency established that, despite the medical conditions that the appellant 

experienced during the time the agency found that she was AWOL, its denial of 

leave without pay (LWOP) was reasonable. ID at 17. Because the agency 

established that the appellant was absent from work during each day that the 

agency alleged she was AWOL, and that it had properly denied her requests for 

LWOP on 36 of those days, the administrative judge sustained the AWOL charge. 

ID at 17-18. 

¶4 The administrative judge found that the appellant failed to prove that the 

agency denied her due process by considering ex parte information. ID at 18-22. 

He also found that the appellant failed to establish that the agency discriminated 

against her on the basis of her disability. ID at 25-26. The administrative judge 

determined that the agency established a nexus between the appellant’s AWOL 

 

2

Subject to meeting certain certification requirements, the FMLA entitles an employee 

to a total of 12 administrative workweeks of leave during any 12-month period for one 

of the FMLA-qualifying reasons, to include caring for a parent who has a serious health 

condition or because of a serious health condition that makes the employee unable to 

perform the functions of the employee’s position. 5 U.S.C. § 6382(a)(1). The 

administrative judge determined that, as of April 23, 2018, the appellant had used 445 

of her 480 hours of FMLA-qualifying leave for the year ending January 4, 2019, leaving 

her with 35 hours of remaining entitlement to leave under the FMLA. ID at 12-13 & 

n.2; IAF, Tab 21 at 19-20. 
4

and the efficiency of the service. ID at 10-11. Nevertheless, he also determined 

that the medical evidence the appellant submitted after her removal established 

that she had made significant strides during her treatment and had sufficiently 

recovered with essentially a clean bill of health regarding her cognitive functions. 

ID at 29. Given that recovery, which he observed had happened within a month 

of her removal, and her long, successful service history, the administrative judge 

found that the penalty of removal exceeded the tolerable bounds of 

reasonableness, and he mitigated the penalty to what he determined was the 

maximum reasonable penalty, a 30-day suspension. Id. 

¶5 In its petition for review, the agency argues that, in mitigating the penalty, 

the administrative judge improperly substituted his judgment for that of the 

agency. Petition for Review (PFR) File, Tab 1 at 4, 9-10. The agency contends 

that the deciding official carefully considered each of the Douglas factors and

determined that a lesser penalty was not justified, despite the mitigating factors of 

the appellant’s 28 years of Federal service and work performance. Id. at 10-11. 

It argues that the administrative judge incorrectly used post-removal evidence to 

conclude that the appellant’s medical condition could be remedied or controlled 

and contends that the deciding official reasonably concluded otherwise in 

determining that the appellant’s potential for rehabilitation was poor. Id.

at 14-15. The agency also argues that the administrative judge gave the 

appellant’s post-removal evidence more weight than was warranted under the 

circumstances, contending that the post-removal medical evidence had nothing to 

do with the events that led to her removal. Id. at 15-16. 

¶6 The appellant filed a motion to file an additional pleading, i.e., a motion to 

dismiss the agency’s petition for review as moot, in which she argued that,

because the agency had exceeded the interim relief that was ordered by the 

administrative judge, it had effectively removed the action from controversy. 

PFR File, Tab 7 at 6-7, Tab 8 at 4-5. The appellant also contended that, in the 

alternative, the agency’s petition for review should be dismissed because the 
5

agency had failed to comply with the administrative judge’s interim relief order

by transferring her to the position of Supervisory Realty Specialist rather than 

appointing her to the position of Realty Officer. PFR File, Tab 7 at 8.3 The 

appellant has also filed a response to the agency’s petition for review. PFR File, 

Tab 9. The agency has filed a response to the appellant’s motion to dismiss and a 

reply to the appellant’s response to its petition for review. PFR File, Tabs 13-14. 

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the agency proved the AWOL 

charge and established the nexus requirement.

¶7 As explained above, the administrative judge found that the agency 

established the AWOL charge concerning 36 of the 41 days that it alleged the 

appellant was AWOL. ID at 13; Savage v. Department of the Army, 122 M.S.P.R. 

 

3 As an initial matter, we grant the appellant’s motion to file an additional pleading. 

However, we deny her motion to dismiss the appeal as moot, or, alternative ly, to 

dismiss the agency’s petition for review for failure to demonstrate compliance with the 

interim relief order. Even if the agency exceeded the administrative judge’s interim 

relief order, the agency’s petition for review is not moot. See Campbell v. U.S. Postal 

Service, 95 M.S.P.R. 185, ¶ 6 (2003) (stating that the Board will not automatically 

dismiss an agency’s petition for review as moot when the agency has in good faith and 

inadvertently exceeded the requirements of an interim relief order). 

Regarding the appellant’s argument that the agency did not comply with the 

administrative judge’s interim relief order, the agency alleged that it reinstated the 

appellant to the Realty Officer position, and then reassigned her to the position of 

Supervisory Realty Specialist with the same duty and pay grade, which it mistakenly 

considered to also be a Realty Officer position. PFR File, Tab 13 at 6-7. It also argued 

that the Supervisory Realty Specialist position was within the appellant’s experience, 

and served the agency’s needs. Id. at 8. The agency asserted that the appellant’s 

original position had been slated to be abolished, and that, because it had a strong and 

overriding interest in the appellant’s reassignment, it had therefore made an implicit 

undue disruption determination. Id. at 8-9; see Purzycki v. General Services 

Administration, 81 M.S.P.R. 188, ¶ 9 (1999) (finding that an agency should be found in 

compliance with an interim relief order if it can show that it had a strong overriding 

interest or compelling reason for assigning duties other than those assigned prior to an 

appellant’s separation and that, if the agency can make such a showing, the Board will 

find that it has made an implicit undue disruption determination). The agency also 

argues that, prior to her removal, the appellant specifically requested to be reassigned to 

a different division. Id. Accordingly, we find the appellant’s argument unavailing.
6

612, ¶ 28 n.5 (2015) (explaining that, to prove an AWOL charge, an agency must 

demonstrate that the employee was absent without authorization and, if the 

employee requested leave, that the request was properly denied), overruled in

part by Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25. 

The administrative judge declined to sustain 5 days of AWOL due to the 

appellant’s remaining entitlement to 35 hours of leave under the FMLA. See 

Ellshoff v. Department of the Interior; 76 M.S.P.R. 54, 73 (1997) (finding that,

when the facts related to a leave-related charge implicate the FMLA, the Board 

will consider and apply the FMLA without shifting the burden of proof to the 

appellant). Because he sustained 36 of the specifications, he sustained the 

charge. ID at 13; 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). He also found that the agency 

established a nexus between the charged misconduct and the efficiency of the 

service. ID at 10-11. The parties do not challenge these findings on review, and 

we discern no reason to disturb them. 

The agency failed to show that the administrative judge erred in mitigating the 

penalty.

¶8 As to the penalty, the administrative judge correctly observed that, when all 

of the agency’s charges are sustained, but, like here, some of the underlying 

specifications are not sustained, the agency’s penalty determination is entitled to 

deference and should be reviewed only to determine whether it is within the 

parameters of reasonableness. ID at 26; Payne v. U.S. Postal Service, 

72 M.S.P.R. 646, 650 (1996). In reviewing the agency’s choice of penalty to 

determine whether it was within the parameters of reasonableness, the 

administrative judge recognized the seriousness of the appellant’s misconduct and 

the fact that, as a supervisor, the agency was entitled to hold her to a higher 

standard of conduct. ID at 27; see Bowman v. Small Business Administration, 
7

122 M.S.P.R. 217, ¶ 12 (2015) (observing that the Board has held that AWOL is a 

serious offense that warrants a severe penalty and that agencies may hold 

supervisors to a higher standard of conduct). The administrative judge also found 

that the penalty was consistent with the agency’s table of penalties, which 

authorizes a penalty of removal for a first offense of AWOL involving an absence 

that exceeds 10 days without permission and without adequate justification. ID 

at 27; IAF, Tab 5 at 22. Nevertheless, he determined that the appellant’s 

post-removal medical evidence demonstrated that her medical conditions had 

played a role in the absences at issue and that her cognitive functions had 

significantly improved; thus, he determined that, under the circumstances, the 

penalty of removal exceeded the tolerable limits of reasonableness. ID at 29; see 

Bowman, 122 M.S.P.R. 217, ¶¶ 12-15 (finding a 30-day suspension was the 

maximum reasonable penalty for a supervisor with over 20 years of service and a 

prior leave-related disciplinary action whose medical condition played a role in 

the absences that supported the agency’s AWOL charge). 

The administrative judge correctly reviewed the reasonableness of 

the penalty based on the appellant’s post-removal medical evidence.

¶9 The agency generally argues on review that the administrative judge 

erroneously substituted his judgment for that of the agency. PFR File, Tab 1 at 4, 

9-10. However, the administrative judge correctly observed that he must analyze 

whether the penalty was within the tolerable limits of reasonableness based on the 

new evidence the appellant submitted to the Board, and not based on the facts and 

circumstances known to the deciding official at the time he made his decision to 

remove the appellant. ID at 28; see Norris v. Securities and Exchange 

Commission, 675 F.3d 1349, 1357 (Fed. Cir 2012) (finding that an arbitrator erred 

by stating that the issue before him was whether the penalty was within the 

tolerable limits of reasonableness based upon the facts and circumstances known 

to the deciding official at the time). 
8

¶10 The administrative judge determined that the deciding official’s penalty 

analysis may have been appropriate in finding that the appellant’s medical 

condition, and the extent that she would recover and return to full function, was 

not a substantial mitigating factor at the time of his decision. ID at 29; 

Mingledough v. Department of Veterans Affairs, 88 M.S.P.R. 452, ¶ 12 (2001) 

(finding that a medical condition was not a significant mitigating factor absent 

evidence that the impairment can be remedied or controlled). He noted that, at 

the time the agency charged the appellant with AWOL, she had exhausted all of 

her leave, and it appeared to the agency that she may have been abusing leave

because, even though she insisted that she could not return to work, i.e., that her 

absence was open-ended, there was no clear medical evidence suggesting she was 

incapacitated to the point that she could not return to work. ID at 12 n.2, 16-17; 

see Patterson v. Department of the Air Force, 74 M.S.P.R. 648, 652 (1997)

(finding that, when an employee has exhausted all available leave, an agency may 

deny LWOP and place the employee on AWOL when there is no foreseeable end 

to the employee’s absence and the absence is a burden to the agency). 

¶11 Thus, the administrative judge did not mitigate the penalty based on any 

alleged inadequacies in the deciding official’s penalty analysis. As discussed 

below, the administrative judge instead found that the appellant’s post-removal 

medical documentation and her testimony before him indicated that her absences 

were related to her underlying mental conditions, and that she had sufficiently 

recovered within a month of her removal to return to work. ID at 27, 29. 

The administrative judge correctly found that the appellant’s 

post-removal medical evidence provides the requisite link to 

her absences.

¶12 Mitigation of the penalty is warranted when, as the administrative judge 

found here, the medical evidence corroborates the appellant’s testimony that her 

mental illness, in this case, cognitive issues caused by depression, anxiety, and 

amnesia, played a role in her absence. ID at 27-28; Bowman, 122 M.S.P.R. 217, 
9

¶ 14; see Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 136 (1997) 

(finding that alleged stressful events did not constitute a mitigating factor when 

the appellant failed to show how his misconduct was directly related to these 

events). 

¶13 The agency contends that the appellant’s post-removal medical evidence 

failed to provide a link to the relevant period, i.e, the period that led to the 

adverse action being taken, and instead shows that she improved after she was 

removed. PFR File, Tab 1 at 15-16; see Bowman, 122 M.S.P.R. 217, ¶ 14 (where

proximity in time, testimony, or other evidence provides the requisite link to the 

relevant period, the subsequent medical evidence can be very probative of a prior 

medical condition). We disagree. The appellant’s post-removal medical evidence 

consists of progress notes from her Speech Pathologist’s treatment of the 

appellant over six appointments between September 27 and October 30, 2018. 

IAF, Tab 27 at 4-8, Tab 28 at 4-11. Those dates include one appointment while 

she was still employed by the agency, as the agency effected the appellant’s 

removal on September 30, 2018. IAF, Tab 4 at 8, Tab 27 at 4-5. The remainder 

of those appointments took place within the month immediately following the 

appellant’s removal. IAF, Tab 27 at 6-8, Tab 28 at 4-11. The provider’s 

September 27, 2018 progress note describes the chronology of the appellant’s 

difficulties, which the appellant reportedly first noticed while she was still at 

work, and specifically states that the appellant had been out since May 2018, “due 

to her changes in cognition,” and that she continued to have memory and 

problem-solving issues. IAF, Tab 27 at 4. The September 27, 2018 note also 

states that the appellant’s “cognitive linguistic skills [were] making steady 

gains,” and that the appellant was “showing readiness for vocational activities,” 

which the provider found was “a marked improvement since her initial exam,” on 

August 9, 2018. Id. at 4-5. Thus, the evidence overlaps with the appellant’s 

removal, and it addresses the appellant’s mental condition in the period covered 

by the AWOL charge. Id.; IAF, Tab 4 at 39-43.
10

¶14 In this regard, the administrative judge found that the appellant’s testimony 

and the medical documentation in the record both supported the conclusion that 

her absences were related to certain underlying medical conditions, including 

depression, anxiety, and amnesia—conditions that were exacerbated by grief over 

the death of her mother in November 2017 and the stress caused by having to 

move and care for her elderly father. ID at 27; IAF, Tab 27 at 4-8, Tab 28 

at 4-10. The agency has not provided a basis for disturbing the administrative 

judge’s decision to credit the appellant’s testimony. The administrative judge 

held a hearing, and the Board must 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; the Board may 

overturn such determinations only when it has “sufficiently sound” reasons for 

doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). 

¶15 The agency also argues on review that the administrative judge gave the 

appellant’s post-removal evidence too much weight. PFR File, Tab 1 at 15. The 

agency rightly observes that Norris, 675 F.3d 1349, does not specify the weight to 

be given to post-removal mitigating evidence. However, the agency has failed to 

show that the administrative judge improperly weighed the relevant post-removal 

medical evidence. In assessing the probative value of medical evidence, one must 

consider the qualifications of the health care providers, their familiarity with the 

appellant’s condition, and whether their opinions provide a reasoned explanation 

for their findings as opposed to mere conclusory assertions. See Stevens v. 

Department of the Army, 73 M.S.P.R. 619, 627 (1997). 

¶16 Here, the medical provider’s opinions set forth reasoned and specific 

explanations of the appellant’s medical conditions. IAF, Tab 27 at 4-8, Tab 28 

at 4-11. Although the agency argues that the evidence in this case is effectively 

meaningless because the medical provider told the agency that the appellant was 

able to return to work prior to her being removed, PFR File, Tab 1 at 15, we do 

not discern any inconsistencies in the medical provider’s opinions. Specifically, 
11

the provider’s prognosis that the appellant could attempt a soft transition to work 

earlier does not mean that she was incorrect that the appellant had progressed to 

the point that she was ready to return to work when the medical provider

discharged the appellant on October 30, 2018. IAF, Tab 4 at 12-14, Tab 27 

at 4-8, Tab 28 at 4-11. 

¶17 The agency also questions the qualifications of the medical provider, a 

Speech Pathologist, to give advice on the appellant’s “generalized anxiety 

disorder” and “other amnesia.” PFR File, Tab 1 at 15. However, the record does 

not reflect that the agency challenged or objected to the provider’s qualifications 

below, and its unsupported challenge on review provides no substantive reason to 

discount the Speech Pathologist’s assessment and diagnosis of the appellant. See 

Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the 

Board generally will not consider an argument raised for the first time in a 

petition for review absent a showing that it is based on new and material evidence 

not previously available despite the party’s due diligence). Moreover, the record

reflects that the appellant’s neurologist, who had diagnosed the appellant with 

amnesia and was, with the assistance of a nurse practitioner, treating her for the 

condition, had referred her to the Speech Pathologist for treatment. IAF, Tab 4 

at 12-14, Tab 21 at 121, Tab 30 at 17. The record reflects that the Speech 

Pathologist was treating the appellant for, among other things, memory loss, 

which the administrative judge found was related to her absences. ID at 5, 9, 27;

IAF, Tab 4 at 12-14, Tab 27 at 4-8, Tab 28 at 4-11. 

¶18 Based on the foregoing, we discern no basis for disturbing the 

administrative judge’s finding that the provider’s findings, as set forth in the 

appellant’s post-removal medical documentation and the appellant’s testimony 

before him, both supported the conclusion that her absences were related to her 

underlying medical conditions and that her impairment could be remedied or 

controlled. ID at 27-28; IAF, Tab 27 at 4-12. 
12

The administrative judge correctly considered the appellant’s 

potential for rehabilitation based on her post-removal 

medical evidence.

¶19 We similarly find unpersuasive the agency’s argument on review that the 

deciding official correctly determined that the appellant’s potential for 

rehabilitation was poor because she was likely to continue being AWOL. PFR 

File, Tab 1 at 13-15. The agency contends in its petition for review that the 

deciding official’s testimony that the appellant failed to submit justification to 

excuse her absences did not indicate that he was unaware of her condition, and 

that he carefully considered it in considering the reasonableness of the penalt y 

and her potential for rehabilitation. Id. at 12-13; see Mingledough, 88 M.S.P.R. 

452, ¶ 12 (finding that a medical condition was not a significant mitigating factor

when the potential for rehabilitation was poor). 

¶20 However, the agency’s finding that the appellant’s potential for 

rehabilitation was poor was based on the evidence, including the medical 

documentation, that it had at the time of the appellant’s removal. We have 

already determined that the administrative judge correctly reviewed the penalty 

based on the appellant’s post-removal medical evidence—evidence the deciding 

official could not have had when he made his decision to remove the appellant.

Norris, 675 F.3d at 1357 (finding that an arbitrator erred by stating that the issue 

before him was whether the penalty was within the tolerable limits of 

reasonableness based upon the facts and circumstances known to the deciding 

official at the time). Thus, by necessity, the appellant’s recovery from mental 

conditions that were implicated in her AWOL similarly justifies the reassessment 

of a determination that the appellant’s potential for rehabilitation was poor 

because her absence appeared open-ended. Id.

¶21 Concerning other penalty factors, the agency argues that, by raising the 

appellant’s 28 years of discipline-free Federal service, the administrative judge

appeared to “give the factor more weight than it was given by the deciding 
13

official.” PFR File, Tab 1 at 13. We are not persuaded. In conducting his 

penalty analysis, the administrative judge was required to determine whether the 

penalty was within the parameters of reasonableness. Payne, 72 M.S.P.R. at 650 

(finding that when all of the agency’s charges are sustained, but some of the 

underlying specifications are not sustained, the agency’s penalty determination is 

entitled to deference, and should be reviewed only to determine whether it is 

within the parameters of reasonableness). The appellant’s length of service is a 

pertinent part of that analysis, as is the fact that her service was discipline-free. 

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981). 

The appellant does not challenge the administrative judge’s findings that she

failed to establish that the agency denied her due process or discriminated against 

her on the basis of her disability.

¶22 As noted above, the administrative judge found that the appellant failed to 

prove that the agency denied her due process by considering ex parte information. 

ID at 18-22. He found that the appellant established that the proposing official 

and the deciding official engaged in ex parte communications after the appellant 

responded to the notice of proposed removal. ID at 20. Nevertheless, he found 

that the appellant failed to establish that the ex parte information involved, which 

included correspondence between the proposing official and the appellant, and a 

conversation between the proposing official and the deciding official to go

through all the documents relevant to the case, was so substantial and so likely to 

cause prejudice as to rise to the level of a due process violation. ID at 21; see

Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 

1999) (finding that “[o]nly ex parte communications that introduce new and 

material information to the deciding official will violate the due process 

guarantee of notice”). The appellant does not challenge this finding on review 

and we discern no reason to disturb it. 

¶23 The administrative judge also found that the appellant failed to show that 

the agency discriminated against her on the basis of her disability. ID at 25-26. 
14

He found that she established that she suffered from a disability, as the medical 

documentation she submitted indicated that she suffered from depression, anxiety, 

and amnesia, and that those conditions affected her attention, memory, and ability 

to concentrate. ID at 25. Nevertheless, because the appellant’s medical 

documentation at that time did not suggest that she needed an extended leave of 

absence, and instead suggested that she should return to work, he determined that, 

even if the appellant’s request for time off constituted a request for a reasonable 

accommodation, her medical documentation did not support her request. ID 

at 25-26. Thus, he found that the appellant failed to show that the agency denied 

her a reasonable accommodation. ID at 26; see Bond v. Department of Energy, 

82 M.S.P.R. 534, ¶ 23 (1999) (observing that the Board has found open-ended 

latitude in leave and attendance matters constitutes an unduly burdensome 

accommodation); Stevens, 73 M.S.P.R. at 628-29 (same). The appellant does not 

challenge this finding on review and we discern no reason to disturb it. 

¶24 Accordingly, we affirm the initial decision. 

ORDER

¶25 We ORDER the agency to cancel the removal and substitute in its place a 

30-day suspension without pay. See Kerr v. National Endowment for the Arts, 

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later 

than 20 days after the date of this decision.

¶26 We also ORDER the agency to pay the appellant the correct amount of back 

pay, interest on back pay, and other benefits under the Office of Personnel 

Management’s regulations, no later than 60 calendar days after the date of this 

decision. We ORDER the appellant to cooperate in good faith in the agency’s 

efforts to calculate the amount of back pay, interest, and benefits due, and to 

provide all necessary information the agency requests to help it carry out the 

Board’s Order. If there is a dispute about the amount of back pay, interest due, 
15

and/or other benefits, we ORDER the agency to pay the appellant the undisputed 

amount no later than 60 calendar days after the date of this decision. 

¶27 We further ORDER the agency to tell the appellant promptly in writing 

when it believes it has fully carried out the Board’s Order and of the actions it has 

taken to carry out the Board’s Order. The appellant, if not notified, should ask 

the agency about its progress. See 5 C.F.R. § 1201.181(b). 

¶28 No later than 30 days after the agency tells the appellant that it has fully 

carried out the Board’s Order, the appellant may file a petition for enforcement 

with the office that issued the initial decision on this appeal if the appellant 

believes that the agency did not fully carry out the Board’s Order. The petition 

should contain specific reasons why the appellant believes that the agency has not 

fully carried out the Board’s Order, and should include the dates and results of 

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶29 For agencies whose payroll is administered by either the National Finance 

Center of the Department of Agriculture (NFC) or the Defense Finance and 

Accounting Service (DFAS), two lists of the information and documentation 

necessary to process payments and adjustments resulting from a Board decision 

are attached. The agency is ORDERED to timely provide DFAS or NFC with all 

documentation necessary to process payments and adjustments resulting from the 

Board’s decision in accordance with the attached lists so that payment can be 

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of 

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If 

you believe you meet these requirements, you must file a motion for attorney fees 
16

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. 

You must file your motion for attorney fees and costs with the office that issued 

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS4

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 

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). 

 

4

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.
17

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 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 
18

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, 

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 
19

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. 5The court of appeals must receive your 

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 a t 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 

 

5

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. 

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

132 Stat. 1510. 
20

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.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE

Civilian Pay Operations

DFAS BACK PAY CHECKLIST

The following documentation is required by DFAS Civilian Pay to compute and pay back pay 

pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following 

checklist to ensure a request for payment of back pay is complete. Missing documentation may 

substantially delay the processing of a back pay award. More information may be found at: 

https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. 

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by 

vendor pay, not DFAS Civilian Pay. 

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the 

specific dates of the back pay period within the ticket comments. 

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket 

comments as to why the documentation is not applicable: 

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. 

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. 

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s 

until notified to do so by DFAS Civilian Pay.*** 

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until 

notified to do so by DFAS Civilian Pay.*** 

☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). 

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee 

in a job undertaken during the back pay period to replace federal employment. 

Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also, 

include record of any unemployment earning statements, workers’ compensation, 

CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, 

or severance pay received by the employee upon separation. 

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority 

under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment 

they may have received. The payroll office must collect the debt from the back pay award. The 

annual leave will be restored to the employee. Annual leave that exceeds the annual leave 

ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process 

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit 

Systems Protection Board, EEOC, and courts. 

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing 

what to do in accordance with decision. 

2. The following information must be included on AD-343 for Restoration: 

a. Employee name and social security number. 

b. Detailed explanation of request. 

c. Valid agency accounting. 

d. Authorized signature (Table 63). 

e. If interest is to be included. 

f. Check mailing address. 

g. Indicate if case is prior to conversion. Computations must be attached. 

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected 

(if applicable). 

Attachments to AD-343 

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, 

etc. with number of hours and dates for each entitlement (if applicable). 

2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts. 

3. Outside earnings documentation statement from agency. 

4. If employee received retirement annuity or unemployment, provide amount and address to 

return monies. 

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of the type of 

leave to be charged and number of hours. 

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to 

be paid. 

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required 

data in 1-7 above. 

The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment, 

Correction to Promotion, Wage Grade Increase, FLSA, etc.) 

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided. 

c. Lump Sum amount of Settlement, and if taxable or non-taxable. 

If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel 

Operations at 504-255-4630.