UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TRACY A. MAY,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

DA-0752-14-0126-I-1

DATE: August 29, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Tracy A. May, El Reno, Oklahoma, pro se.

Jamie L. Sagehorn, Tinker AFB, Oklahoma, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

mitigated the appellant’s removal to a reduction in grade to a non-supervisory 

position. For the reasons discussed below, we GRANT the agency’s petition for 

review, AFFIRM the administrative judge’s findings on the merits of the agency’s 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

charges and on the nexus between the appellant’s misconduct and the efficiency 

of the service, REVERSE the decision to mitigate the penalty, and SUSTAIN the 

appellant’s removal. 

¶2 The agency removed the appellant from her position as a GS-06 Supervisory 

Education and Training Technician at the Tinker Air Force Base Child 

Development Center based on two charges: disregard of a directive, and 

negligence. Initial Appeal File (IAF), Tab 5 at 14, 16-17. Specifically, the 

agency charged that the appellant negligently administered the wrong prescription 

medicine to one of the children under her care and then failed to follow an agency 

directive requiring her to notify the acting director of the center and the parents 

of the child involved of her mistake. Id. at 28. She filed an appeal of her 

removal and subsequently waived her right to a hearing. IAF, Tabs 1, 7. 

¶3 In an initial decision on the written record, the administrative judge

determined that the agency proved its charges, but she determined that, because 

the agency failed to show that the deciding official gave adequate consideration 

to the relevant Douglas factors, 2 its choice of penalty was not entitled to 

deference. IAF, Tab 12, Initial Decision (ID) at 2-7, 10. In that regard, the 

administrative judge found that the deciding official’s analysis of the Douglas

factors failed to show that he had given serious consideration to a lesser penalty 

or to the appellant’s potential for rehabilitation and further found it “difficult if 

not impossible to understand the [deciding official’s] statement that the 

appellant’s actions ‘broke the trust that is required of all childcare employees,’” 

in light of the fact that following the incident, “the agency allowed the appellant 

to continue in her supervisory position and even retrained her the following day 

on administering medicines to the children in her care.” ID at 10-11 (quoting 

IAF, Tab 10 at 7). Thus, considering the applicable Douglas factors, the 

administrative judge determined that a demotion was the maximum reasonable 

 2 See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
3

penalty for the sustained charges and she mitigated the penalty to a reduction in 

grade to a GS-05 non-supervisory position. ID at 12-13. 

¶4 In its timely-filed petition for review, the agency argues that, contrary to 

the administrative judge’s findings, the deciding official thoughtfully considered 

the relevant Douglas factors. Petition for Review (PFR) File, Tab 1 at 7-8. The 

agency also argues that the administrative judge improperly made credibility 

determinations without a hearing, erroneously found that the penalty of removal 

was beyond tolerable limits of reasonableness, erroneously considered evidence 

not in the record, and confused argument with evidence in a manner that 

materially affected the initial decision. Id. at 8-10. Ultimately, the agency 

contends that the administrative judge erred in mitigating the penalty. 

¶5 Where, as here, all of the agency’s charges have been sustained, the Board 

will review an agency-imposed penalty only to determine if the agency 

considered all of the relevant factors and exercised management discretion within 

tolerable limits of reasonableness. Woebcke v. Department of Homeland Security, 

114 M.S.P.R. 100, ¶ 7 (2010). In determining whether the selected penalty is 

reasonable, the Board gives due deference to the agency’s discretion in exercising 

its managerial function of maintaining employee discipline and efficiency. Id. 

The Board recognizes that its function is not to displace management’s 

responsibility or to decide what penalty it would impose, but to assure that 

management judgment has been properly exercised and that the penalty selected 

by the agency does not exceed the maximum limits of reasonableness. Id. Thus, 

the Board will modify a penalty only when it finds that the agency failed to weigh 

the relevant factors or that the penalty the agency imposed clearly exceeded the 

bounds of reasonableness. Id.

¶6 With its petition for review, the agency includes evidence regarding interim 

relief, a sworn statement from the director of the Child Development Center, and 

a copy of its table of penalties. PFR File, Tab 1 at 12-20. Regarding the sworn 

statement and the table of penalties, under 5 C.F.R. § 1201.115, the Board will 
4

generally not consider evidence submitted for the first time with the petition for 

review absent a showing that it was unavailable before the record was closed 

despite the party’s due diligence. Both of these items appear to have been 

available before the close of the record below and the agency fails to address their 

availability in its petition for review. Moreover, the sworn statement appears to 

be offered in rebuttal. See PFR File, Tab 1 at 14. Such evidence is not generally 

considered new and material. E.g., Bucci v. Department of Education, 

42 M.S.P.R. 47, 55 (1989). Nevertheless, the same individual offered a similar 

statement as part of the agency’s presentation in the appeal below, IAF, Tab 10 at 

12-14, and, as the following discussion indicates, it differs significantly from the 

administrative judge’s findings, especially regarding what duties the agency 

allowed the appellant to perform after the incident at issue and the implications 

thereof, see ID at 11-12. 

¶7 In a situation like this, where there has been no hearing and the 

administrative judge’s findings are therefore not based on the observation of 

witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its 

own judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d 

1288, 1302 (Fed. Cir. 2002). Because the appellant waived a hearing in this 

matter, IAF, Tab 7, the administrative judge’s findings regarding the facts of this 

case and the deciding official’s consideration of the Douglas factors were not 

based on her observation of witnesses’ demeanor. Thus, where justified by the 

record, the Board may substitute its factual findings for those of the 

administrative judge. 

¶8 The administrative judge found that the agency’s actions following the 

incident at issue undermined the deciding official’s assessment of the appellant’s 

rehabilitative potential because, as noted above, rather than place the appellant on 

administrative leave, it instead let her continue in her supervisory position, and 

retrained her on the procedures for administering medicines. ID at 11. By 

contrast, the center director asserted in her earlier sworn statement that the 
5

agency restricted the range of duties which it allowed the appellant to assume 

after the incident, limiting her to coordinating staff breaks and lunches, and 

performing administrative tasks such as taking hourly counts in each classroom, 

and the center director makes clear that the appellant was not allowed to 

administer medicine upon her return to work. IAF, Tab 10 at 13. Thus, contrary

to the administrative judge’s implied finding that the agency allowed the 

appellant to more or less assume her regular duties following the incident at 

issue, the record instead indicates that the agency acted consistently with the 

deciding official’s statement that the appellant had lost the agency’s trust and that 

her duties were curtailed as a result. 

¶9 Additionally, even though the administrative judge correctly noted that the 

agency did not charge the appellant with being untruthful regarding the events at 

issue or with intentionally failing to follow the agency directive requiring her to 

notify the parents of the child who mistakenly received another child’s 

prescription medicine, these facts are important to the penalty determination and 

the record reflects that the deciding official considered them in that context. For 

example, the first Douglas factor involves the question of whether the offense at 

issue was intentional, Douglas, 5 M.S.P.R. at 305, and the deciding official

indicated in her consideration of that factor that she found the appellant’s act of 

not reporting the incident was intentional, IAF, Tab 5 at 18. As the following 

discussion indicates, we agree with the deciding official that the appellant acted 

intentionally, and that her actions are a severely aggravating factor. 

¶10 Although the appellant consistently claimed that she did not realize her 

mistake until after she returned from lunch, see, e.g., IAF, Tab 5 at 20, 24, 31, 

contemporaneous eyewitness accounts indicate that two of her colleagues 

informed the appellant of her mistake at the time it occurred, and that she 

immediately gave the child involved the correct medication, id. at 37, 40. Thus, 

the appellant’s statement that she did not realize that she had made the mistake at 

issue until after she returned from lunch is simply not credible. Nevertheless, 
6

rather than notify the center director or, as the agency directive specifically 

requires, the parents of the child who erroneously received the wrong medication, 

see, IAF, Tab 5 at 47, the record instead indicates that the appellant spoke with 

the center director to request an early lunch, but she failed to tell the center 

director about the incident that had just occurred, see IAF, Tab 10 at 12, Tab 5 at 

31. Moreover, given that the appellant was told of her mistake right after it 

happened, her failure to notify the center director and to instead ask for an early 

lunch, all the while keeping her mistake to herself, more than justifies the 

deciding official’s opinion that the appellant could no longer be trusted and did 

not exhibit potential for rehabilitation. IAF, Tab 10 at 7, Tab 5 at 19-20. 

¶11 Under all of these circumstances, we find that the deciding official 

adequately considered the relevant Douglas factors and that the penalty of 

removal falls within the tolerable limits of reasonableness. Accordingly, we 

REVERSE the mitigation and SUSTAIN the appellant’s removal. This 

constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision. 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 
7

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 United States 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 United 

States 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.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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.

______________________________

William D. Spencer

Clerk of the Board