UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

FANNIE M. EVANS,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

DC-0752-13-6505-I-1

DATE: September 9, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL*

Matthew E. Hughes, Esquire, Washington, D.C., for the appellant. 

Jeremiah Crowley, Joint Base Andrews, Maryland, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

affirmed her removal. Generally, we grant petitions such as this one only when: 

the initial decision contains 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 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. See 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 filed an appeal of the agency’s action removing her from the 

position of Medical Support Assistant, GS-05. Initial Appeal File (IAF), Tab 1. 

The agency proposed the appellant’s removal based on the following charges: 

(1) conduct unbecoming a Federal employee (two specifications); and (2) failure 

to follow leave procedures resulting in absence without leave (AWOL) (two 

specifications). IAF, Tab 5 at 56. After receiving the appellant’s replies to the 

proposed action, the agency issued a decision that sustained both specifications of 

the conduct unbecoming charge and the first specification of the AWOL charge. 

Thus, the agency found that the charges were supported and that the penalty of 

removal was warranted. Id. at 24-56. The appellant was removed effective 

September 11, 2013. Id. at 24. She filed an appeal challenging the charged 

misconduct, but she did not raise any affirmative defenses. IAF, Tab 1. 

¶3 After holding a hearing, the administrative judge sustained the first 

specification of the conduct unbecoming charge, finding that the agency 

established that the appellant misinformed a patient regarding the need for lab 

work, which resulted in inconvenience to the patient and poor customer service. 

IAF, Tab 28, Initial Decision (ID) at 3-11. The administrative judge also 
3

sustained the second specification, finding that the agency established by 

preponderant evidence that the appellant failed to ensure that a patient was timely 

seen by the physician and, as a result, the patient’s appointment was 

unnecessarily delayed, which resulted in poor customer service. Thus, the 

administrative judge sustained the conduct unbecoming charge. 

¶4 Further, the administrative judge sustained the AWOL charge, finding that 

the agency proved that the appellant was absent without authorization from 

May 7-10, 2013. Specifically, the administrative judge found that the appellant 

was provided notification of the medical documentation required to support her 

leave request, that the appellant did not provide sufficient medical 

documentation, and that, because the appellant failed to follow those leave 

procedures, the agency properly charged her with AWOL. ID at 15. The 

administrative judge concluded that the agency-imposed penalty of removal 

promoted the efficiency of the service and was reasonable under the 

circumstances of this case. ID at 18‐19. 

ANALYSIS

¶5 On review, the appellant challenges the administrative judge’s findings and 

determinations on each of the charges. Petition for Review (PFR) File, Tab 1. As 

to the conduct unbecoming charge, the appellant contends that the agency failed 

to prove that she provided misinformation to a patient about scheduled lab work,

which resulted in an inconvenience to the patient and poor customer service; that 

she failed to ensure that a patient was timely seen by a doctor; and that she 

further failed to notify a medical technician that the patient was waiting to be 

seen by a doctor, resulting in the patient waiting an additional 30-40 minutes. 

PFR File, Tab 1 at 5-12. The appellant asserts that the agency must prove each 

specification of the conduct unbecoming charge by preponderant evidence and 

that the agency failed to do so. 
4

¶6 However, a charge of conduct unbecoming has no specific elements of 

proof; the agency establishes the charge by proving the appellant committed the 

acts alleged under this broad label. Canada v. Department of Homeland 

Security, 113 M.S.P.R. 509, ¶ 9 (2010). Such a charge typically involves conduct 

that is improper, unsuitable, or otherwise detracts from one’s character or 

reputation. Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 42 

(2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011). Rude, discourteous, and 

unprofessional behavior in the workplace is outside the accepted standards of 

conduct reasonably expected by agencies and can be the subject of discipline. 

See Holland v. Department of Defense, 83 M.S.P.R. 317, ¶¶ 10‐12 (1999) 

(sustaining a removal for rude and discourteous behavior); Wilson v. Department 

of Justice, 68 M.S.P.R. 303, 309-10 (1995) (sustaining a removal for disrespectful 

conduct and the use of insulting, abusive language); Peters v. Federal Deposit 

Insurance Corporation, 23 M.S.P.R. 526, 529 (1984) (sustaining a removal for 

discourteous and unprofessional conduct), aff’d, 770 F.2d 182 (Fed. Cir. 1985) 

(Table). Further, and contrary to the appellant’s assertion, an agency is required 

to prove only the essence of its charge and 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). 

¶7 The appellant did not deny the alleged misconduct in her reply to the 

agency’s proposal notice. IAF, Tab 5 at 52. Rather, she argued that the agency 

failed to tell her either in writing or verbally that her behavior was an issue. 

Further, the appellant never addressed this incident during the hearing and she 

offered nothing to refute the testimony offered by agency witnesses, either below 

or on review. Thus, to the extent the appellant now argues that the administrative 

judge improperly credited the veracity of the patient’s accusation over her 

testimony, and that the administrative judge accorded no weight to the possibility 

that the patient miscomprehended the information that was allegedly provided to 
5

her by the appellant, the appellant’s arguments are mere disagreement with the 

administrative judge’s credibility determinations and provide no basis for review. 

See Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 

(1987) (observing that mere reargument of factual issues already raised and 

properly resolved by the administrative judge below do not establish a basis 

for review).

¶8 The appellant also argues on review that the agency failed to prove 

specification 2 of the conduct unbecoming charge. We disagree. The agency 

utilized two different electronic record-keeping systems to check in patients. 

AHLTA was the more reliable system and the CHCHS-1 system was more 

user-friendly. The appellant testified below that she used the CHCHS-1 system 

because the AHLTA system was down, but she failed to provide any witnesses to 

support her claim. IAF, Tab 26, Hearing Compact Disc (HCD). In contrast, two 

agency witnesses testified that they had used the AHLTA system throughout the 

date in question and that the system was fully functional and that no other 

employees had checked patients in on the CHCHS‐1 system that day. Id. On 

review, the appellant does not reassert her claim that she used the CHCHA‐1 

system because the AHLTA system was down, but instead argues for the first 

time that she should not be disciplined because the agency did not have a blanket 

policy requiring the AHLTA system to be used. PFR File, Tab 4 at 9-12. 

However, the Board 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. Banks v. Department 

of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has failed to make 

such a showing here. 

¶9 The appellant also argues that the administrative judge failed to accord any 

weight to the facts showing that she made multiple attempts to timely notify the 

physician that her patient had arrived, including both calling and walking back to 
6

notify the technician. PFR File, Tab 4 at 9. The administrative judge considered 

the appellant’s testimony regarding the incident. ID at 9-10. However, she found 

that it was inconsistent with the appellant’s written reply to the proposed removal 

and with the testimony of agency witnesses. Id. We discern no reason to reweigh 

the evidence or substitute our assessment of the record evidence for that of the 

administrative judge. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 

(1997) (finding no reason to disturb the administrative judge’s findings when she 

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions); Broughton, 33 M.S.P.R. at 359 (same); see Haebe v. 

Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (finding that the 

Board may overturn credibility determinations that are implicitly or explicitly 

based on demeanor only when it has “sufficiently sound” reasons for doing so). 

Here, even though the administrative judge did not explicitly cite to Hillen v. 

Department of the Army, 35 M.S.P.R. 453, 458 (1987), in making her credibility 

determinations, the administrative judge did perform a proper Hillen-type

analysis regarding the witnesses, and we find no reason to disturb her 

determination that the agency proved by preponderant evidence the charge of 

conduct unbecoming a Federal employee. ID at 3-15. 

¶10 Concerning the charge of failure to follow leave procedures resulting in 

AWOL, the appellant argues that the agency improperly conflated two charges 

into one when it charged her with “[f]ailure to follow leave procedures resulting 

in AWOL.” PFR File, Tab 4 at 12; IAF, Tab 5 at 56. However, while AWOL and 

failure to follow leave procedures are typically considered as distinct charges 

with different elements, in this case they are based on the same conduct and we 

find no error by the agency in charging her with a single charge. See 

Valenzuela v. Department of the Army, 107 M.S.P.R. 549, 553 n.* (2007); 

Jones v. Department of Justice, 98 M.S.P.R. 86, ¶ 16 (2004) (merging the charge

of AWOL into the charge of failure to follow instructions, when both charges 

were based on the same underlying facts, i.e., the appellant’s failure to follow 
7

instructions by refusing to provide the necessary medical documentation to 

substantiate his alleged inability to work). 

¶11 As to the merits of the AWOL charge, the appellant claims that she 

submitted medical documentation, which her supervisor, the proposing official, 

found to be insufficient, and that, while she was provided a 69-page regulation to 

review, her supervisor never explained what additional documentation was 

required. PFR File, Tab 4 at 12-15. The appellant contends that there is no 

evidence that her supervisor ever advised her of what constituted “sufficient 

medical documentation.” Id. at 14. 

¶12 It is undisputed that the medical documentation the appellant provided 

consisted of a note from a physician stating only that she needed to be excused 

from work from May 6-13, 2013. The documentation provided no reason for the 

appellant’s absence, and the note was stamped and not personally signed by any 

medical professional. IAF, Tab 6 at 5. The record also reflects that the appellant 

met with her supervisor concerning the documentation she submitted and that her 

supervisor provided her a deadline of 14 days to submit additional documentation. 

Her supervisor subsequently emailed her on the date it was due to see if she had 

obtained the necessary medical documentation. Id. at 30. The appellant did not 

submit any additional medical documentation to support her leave request. In 

addition, the record evidence reflects that the appellant previously was counseled 

regarding proper leave procedures. Id. at 25-28, 68, 72, 76, 81, 83. 

¶13 During the hearing, the appellant and her supervisor both testified that the 

appellant refused to meet with her supervisor for any reason without a union 

official present. IAF, Tab 26, HCD. The appellant also testified that, when she 

and her union representatives met with her supervisor concerning her leave 

request, she was never advised of what was necessary to constitute sufficient 

medical documentation. Id. She testified further that, when she asked in the 

meeting what specific medical documentation was needed, her supervisor refused 

to tell her. Id. In contrast, the appellant’s supervisor testified that, when she and 
8

the Squadron Operations Officer met with the appellant and two union 

representatives, the supervisor explained to the appellant that her medical note 

required a diagnosis and her physician’s signature. Id. The supervisor testified 

further that she told the appellant that she had to provide this information for her 

leave to be approved and provided her 14 days within which to submit it. Id. 

¶14 The hearing testimony of both the appellant and her supervisor reflects that 

the appellant had two union representatives present at this meeting. Id. Thus, the 

appellant could have called either or both of these witnesses to testify on her 

behalf about what transpired during the meeting. The appellant failed to do so. 

Nor did she provide any other evidence to support her claim that her supervisor

refused to tell her what was necessary to constitute sufficient medical 

documentation. To the extent the appellant is challenging the administrative 

judge’s determination that the appellant’s supervisor was more credible than the 

appellant, she has provided no basis upon which to disturb this determination. 

See Haebe, 288 F.3d at 1302. Accordingly, we find no basis upon which to 

disturb the administrative judge’s determination that the agency proved by 

preponderant evidence that the appellant failed to provide the necessary medical 

documentation to substantiate her leave request, and thus, that she failed to 

follow leave procedures that resulted in her properly being charged AWOL. 

¶15 The appellant additionally asserts that the agency failed to show nexus, and 

that the penalty of removal is too harsh. PFR File, Tab 4 at 15-17. However, 

“the nexus between the charged offense and the efficiency of the service is 

automatic when the charged offense is AWOL.” Bryant v. National Science 

Foundation, 105 F.3d 1414, l417 (Fed. Cir. 1997). Similarly, inappropriate 

conduct is disruptive to the workplace and undermines the efficiency of the 

service. Murray v. Department of the Army, 40 M.S.P.R. 250, 255 (1989). 

¶16 Finally, the deciding official’s hearing testimony indicates that he 

considered the appellant’s written response to the charged misconduct and applied 

the relevant Douglas factors appropriately when assessing which penalty to 
9

impose. IAF, Tab 26, HCD; Tab 5 at 28-37. Furthermore, the administrative 

judge found no evidence that the appellant had any remorse for her conduct and 

that she did not accept any responsibility for her actions. ID at 18. Therefore, we 

discern no error with the administrative judge’s finding that the penalty of 

removal was reasonable. ID at 6. Accordingly, the appellant has provided no

basis upon which to disturb the initial decision. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, and 11. 
10

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 Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board