UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LAURA TOMSEN,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

NY-0714-18-0016-I-1

DATE: April 12, 2024

THIS ORDER IS NONPRECEDENTIAL1

Laura Tomsen, Tonawanda, New York, pro se.

Kevin B. Thiemann, Albany, New York, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

affirmed her removal from Federal service for patient abuse pursuant to 38 U.S.C.

§ 714. For the reasons discussed below, we GRANT the appellant’s petition for

review, VACATE the initial decision, and REMAND the case to the New York

Field Office for further adjudication in accordance with this Remand Order. 

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
BACKGROUND

The appellant was employed by the agency as a GS-5 Medical Support

Assistant. Initial Appeal File (IAF), Tab 1 at 1. The agency proposed the

appellant’s removal for one charge of patient abuse pursuant to 38 U.S.C. § 714.

IAF, Tab 9 at 45-46. The deciding official found that the charge was supported

by substantial evidence and sustained the appellant’s removal, effective

October 20, 2017. Id. at 20-22. The appellant appealed her removal to the Board.

IAF, Tab 1. She did not request a hearing and did not raise any affirmative

defenses. Id. at 2, 5. In an initial decision based on the written record, the

administrative judge found that the agency proved the charge of patient abuse by

substantial evidence and he stated that, because the agency sustained the charge

by substantial evidence, its chosen penalty of removal must be affirmed. IAF,

Tab 19, Initial Decision (ID) at 5-8. The appellant has filed a petition for review

and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 4.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant argues that the administrative judge did not

consider all of the evidence she submitted. PFR File, Tab 1 at 5. The

administrative judge’s failure to mention all of the evidence of record does not

mean that he did not consider it in reaching his decision, and we find no basis to

disturb the initial decision on this basis. Marques v. Department of Health and

Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.

1985) (Table). The appellant also argues that, after the record closed before the

administrative judge, she learned that the deciding official was accused of

negligence in his handling of another employee’s sexual harassment allegation,

which she asserts “clouded his judgment” in the appellant’s case. PFR File,

Tab 1 at 3-4. We find that the allegations against the deciding official, which

were brought by a different employee and are unrelated to the charge brought

against the appellant, do not warrant disturbing the findings in the initial

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decision. Further, on review, the appellant appears to assert for the first time,

without support, that the veteran who made allegations against her, which formed

the basis of the charge in this appeal, suffers from a mental health disorder. Id.

at 5. The appellant has not established that her representations about the

veteran’s mental health are based on new evidence that was unavailable despite

her due diligence. See Banks v. Department of the Air Force, 4 M.S.P.R. 268,

271 (1980) (providing 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); 5 C.F.R. § 1201.115(d). Moreover, these new allegations are not

material to the outcome of this appeal. See Russo v. Veterans Administration,

3 M.S.P.R. 345, 349 (1980). 

Notwithstanding, remand is required for a different reason. While this

petition for review was pending, the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit) held in Rodriguez v. Department of Veterans Affairs, 8 F.4th

1290, 1298-1301 (Fed. Cir. 2021), that, although the Board uses the substantial

evidence standard in reviewing an action under 38 U.S.C. 714, the agency itself

must apply a preponderant evidence standard in determining whether the charges

should be sustained. Here, the deciding official sustained the proposed removal

based on his finding that the charge was “supported by substantial evidence.”

IAF, Tab 9 at 20. Although the agency’s removal decision predated Rodriguez,

the holding in Rodriguez applies to all pending cases, regardless of when the

events at issue took place. Semenov v. Department of Veterans Affairs,

2023 MSPB 16, ¶ 22. The administrative judge and the parties did not have the

benefit of Rodriguez, and they were therefore unable to address its impact on this

appeal. Accordingly, we remand this case for adjudication of whether the

agency’s apparent error in applying the substantial evidence standard of proof

was harmful. Id., ¶¶ 23-24 (finding it appropriate to apply the harmful error

standard from 5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C. § 714). 

3
Additionally, in Connor v. Department of Veterans Affairs, 8 F.4th 1319,

1325-26 (Fed. Cir. 2021), the Federal Circuit determined that the Board must

consider and apply the factors set forth in Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305-06 (1981), in its review of an agency’s penalty selection

under 38 U.S.C. § 714. The court held that, although section 714 precludes the

Board from mitigating the agency’s chosen penalty, “[i]t does not alter the

penalty review with respect to the Douglas factors” and that, although the Board

cannot mitigate the penalty, “if the Board determines that the [agency] failed to

consider the Douglas factors or that the chosen penalty is unreasonable, the Board

must remand to the [agency] for a redetermination of the penalty.” Connor,

8 F.4th at 1326-27 (citing Brenner v. Department of Veterans Affairs, 990 F.3d

1313, 1325 (Fed. Cir. 2021)) (explaining that, “if the [Board] concludes that the

[agency’s] removal decision is unsupported by substantial evidence, the [Board]

should remand to the [agency] for further proceedings”). As we found with the

Rodriguez case, the Federal Circuit’s decision in Connor applies to all pending

cases, regardless of when the events at issue took place. See Lee v. Department

of Veterans Affairs, 2022 MSPB 11, ¶ 16.

Here, the administrative judge did not review the agency’s penalty, finding

that the penalty “must be affirmed” because the agency sustained its charge by

substantial evidence. ID at 8 (emphasis omitted). Moreover, in the deciding

official’s decision letter upholding the proposed removal, he did not reference

Douglas or cite to the Douglas factors. IAF, Tab 9 at 20-22. Thus, the record is

unclear as to whether the agency properly considered the Douglas factors in

making the decision to remove the appellant. The administrative judge and the

parties did not have the benefit of Connor, and thus were unable to address its

impact on this appeal. Therefore, remand is required for this issue as well. 

The administrative judge who decided this case is no longer with the Board

and this case must be assigned to a new administrative judge on remand. The

administrative judge should provide the parties with an opportunity to present

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evidence and argument addressing whether the deciding official’s use of the

substantial evidence standard constituted harmful error and whether the agency

properly considered the Douglas factors.2 The administrative judge should hold a

supplemental hearing, if requested by the appellant, to address these two issues.

To the extent it is appropriate, the administrative judge may adopt, in the remand

initial decision, the original findings in the initial decision. However, if any of

the evidence and argument developed on remand causes the administrative judge

to disagree with the previous findings contained in the initial decision, he or she

should explain that in the remand initial decision. 

ORDER

For the reasons discussed above, we remand this case to the New York

Field Office for further adjudication in accordance with this Remand Order. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

2

 In reviewing the penalty, the administrative judge should determine whether the

agency proved by substantial evidence that it properly applied the Douglas factors and

whether the agency’s penalty selection was reasonable. See Connor, 8 F.4th at 1326;

Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1376, 1379 (Fed. Cir. 2020)

(identifying the Board’s scope of review of the penalty in an action taken under

38 U.S.C. § 714 as substantial evidence). If not, he should remand the appellant’s

removal to the agency for a new decision on the appropriate penalty. Id. 

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