UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE 

LINDA W. WEISS,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

NY-0707-16-0149-J-1

DATE: February 16, 2016

Linda W. Weiss, Slingerlands, New York, pro se.

Kimberly Negley, Esquire, St. Louis, Missouri, for the agency.

Stephen F. Butera, Esquire, Clarksburg, West Virginia, for the agency.

Xan DeMarinis, Esquire, Washington, D.C., for the agency.

BEFORE

Arthur S. Joseph

Chief Administrative Judge

FINAL DECISION (WITH ANALYSIS AND FINDINGS) 1

INTRODUCTION

On January 16, 2016, the appellant, 2 SES-0670, Director, Albany, New

York Stratton Veterans Administration Medical Center (AVAMC), filed a timely

 

1 A final decision was issued on February 5, 2016 to comply with the 21-day time limit 

in 38 U.S.C. § 713(e). The analysis and findings were not included because of a major 

technical problem associated with the preparation of this decision and an exhaustive 

review of the voluminous appeal file. 
2

appeal with the Merit Systems Protection Board (the Board) challenging her 

removal from Federal service, effective January 12, 2016. Appeal File (AF), Tab 

1. The Board has jurisdiction over this appeal. 38 U.S.C. § 713(e) 3

; 5 U.S.C. 

§ 7701(b)(1). 

The appellant initially requested a hearing, but later waived her right to 

have one. Compare AF, Tab 1, with AF, Tabs 51, 52. Hence, the appeal was 

decided on the written record after each party presented their arguments and 

evidence and submitted rebuttal arguments. For the reasons stated below, the 

agency's action is REVERSED.

Background

The appellant has held a number of positions with the agency since 

August 27, 1973. See AF, Tab 11 at 8-14. Since September 12, 2010, and at all 

times relevant to this appeal, she served as Director of AVAMC, which was a 

position in the Senior Executive Service (SES). See AF, Tab 1 at 8; Tab 11 at 15. 

In her role as Director of AVAMC, she had “overall responsibility for planning, 

organizing, directing, coordinating, controlling, reviewing, evaluating, and 

improving medical, administrative, and supporting operations of a health care 

facility/system which administers a variety of medical care and treatment.” AF, 

Tab 57 at 6. Part of her responsibility was to ensure that “issues raised by 

veterans, their families and/or representatives are adequately addressed” and to 

“identify and resolv[e] problems which may inhibit accomplishing the facility’s 

 

2 Although the appellant was previously represented by an attorney, she submitted a pleading on 

January 28, 2016, indicating that he no longer represented her due to his medical 

status. Compare Appeal File (AF), Tab 1 at 3, with AF, Tab 64 at 3. Therefore, the appellant is 

now appearing pro se.

3 38 U.S.C. § 713 was implemented under Veterans' Access to Care through Choice, 

Accountability and Transparency Act of 2014, Pub. L. No. 113-146.
3

patient care mission.” Id. at 7-8. The appellant’s position description further 

provides that:

A large portion of the work involves making decisions and 

determinations for which there are no written precedents. In the 

multitude of professional and administrative matters involved, 

consistent use of sound management judgment is required. In order 

to operate effectively in this position, the Director must demonstrate 

health system administration skills and maturity of judgment 

reflecting significant management experience at a highly responsible 

level in a comparable health environment. Interpretation of VA 

regulations and policies must be made in such a manner as to ensure 

that they contribute to accomplishing the health care facility and 

VISN (Veteran Integrated Services Network) and that their intent is 

carried out.

Id. at 9.

The instant appeal involves the appellant’s responsibilities as Director of 

AVAMC as they relate to her actions between March 20 – July 12, 2015, and 

another AVAMC employee, Marilee Sweet. See, e.g., AF, Tab 48 at 23-25. The 

agency appointed Ms. Sweet to the position of Nursing Assistant in June 

2009. AF, Tab 27 at 92. In December 2011, Associate Director for Patient and 

Nursing Services (ADPNS) Deborah Spath proposed Ms. Sweet’s removal based 

upon a number of charges that included physical and verbal patient abuse. Id. at 

72-74. The appellant was the deciding official in that matter. Id. at 70-71. She 

sustained some, but not all of the charges and specifications. Id. at 70. Most 

notably, the appellant did not sustain the charge of physical patient abuse, which 

stemmed from an allegation that she had roughly shoved food in the mouth of a 

patient, but she did sustain the verbal patient abuse charge. Id. at 70, 73. Rather 

than remove Ms. Sweet, the appellant suspended her for one day. Id. at 67, 68, 

70. A subsequent performance appraisal, covering the period from October 2012 

through September 2013, rated Ms. Sweet as “Excellent.” Id. at 44-45.

In July 2014, a patient alleged that Ms. Sweet had been rough when 

administering care, she hit him, and she threatened him. AF, Tab 25 at 11, 21; 
4

but see AF at 11-20 (responses from Ms. Sweet and a nurse that witnessed the 

encounter, both indicating that the patient had been aggressive and Ms. Sweet 

merely protected herself), 24 (report from another nurse, describing the patient as 

having a history of aggressive behavior). As a result, the agency temporarily 

discontinued Ms. Sweet’s contact with patients, detailing her to kitchen 

duties. See AF, Tab 25 at 11, Tab 68 at 4. Around that time, several prior 

complaints that implicated Ms. Sweet came to light. See, e.g., AF, Tab 25 at 7-8 

(complaint), 11 (complaint), 27 (complaint), 29 (complaint). For example, two 

generally alleged that Ms. Sweet had been rude and rough when administering 

care and another complained that she called him a jerk when he sought her 

help. AF, Tab 25 at 7-8; Tab 26 at 22-23. 

After the July 2014 allegation of physical abuse, the agency compiled 

information about the complaints involving Ms. Sweet. See AF, Tab 20 

at 19-24. In the days that followed, the appellant convened an Administrative 

Investigation Board (AIB). See id. at 10. She requested that the AIB investigate 

allegations of patient abuse, reports of charge nurses not following patient care 

standards, and claims of unit members failing to follow hospital policy. Id. The 

AIB issued its findings in September 2014. 4

 AF, Tab 19 at 9-17. Among other 

things, the AIB concluded, “In the allegations of patient abuse, it appears abuse 

has occurred on [Ms. Sweet’s unit] in the forms of physical, emotional, verbal, 

 

4 Consistent with agency policy, the AIB defined patient abuse as including “physical, 

psychological, emotional, financial, sexual, or verbal abuse.” AF, Tab 19 at 10. It 

further indicated that “patient abuse may also include such actions as intentional 

omission of care; willful violation of a patient’s privacy; willful physical injury; 

intimidation; verbal harassment or ridicule; sexually or financially exploitive 

relationships; or any action or behavior that conflicts with a patient’s rights.” Id. 

Moreover, the AIB report noted that “Intent to abuse is not necessary. The patient’s 

perception of how he/she was treated is an essential component of the determination as 

to whether abuse occurred.” Id.
5

intimidation, psychological, omission of care, violation of patient’s rights, and 

violation of patient’s privacy.” 5

 Id. at 16. 

At the conclusion of the AIB, agency’s Regional Counsel reviewed its 

findings. See AF, Tab 40 at 5-6. On November 18, 2014, attorney Dafni Kiritsis 

sent the appellant a memorandum concerning the AIB’s legal sufficiency. 

Id. Ms. Kiritsis opined that although there were some inconsistencies in the 

statements of witnesses, broad themes emerged. Id. at 5. Her memorandum 

closed with the following: 

You can accept the [AIB] team's findings and conclusions in whole 

or in part and/or reach your own findings and conclusions. I 

recommend that you accept the findings of fact and conclusions and 

that you heavily consider the additional considerations noted by the 

[AIB] team. The report is legally sufficient. 

Id. at 6.

Citing the AIB, ADPNS Spath issued a December 29, 2014 notice, 

proposing Ms. Sweet’s removal based upon charges of patient abuse and 

inappropriate behavior towards a patient. Id. at 30-32. The appellant was again 

the deciding official in the matter. Id. at 16-18. After receiving Ms. Sweet’s 

reply, the appellant did not sustain either charge; Ms. Sweet received no 

discipline. Id. The appellant later explained that, in her opinion, the initial 

investigation did not reveal adequate evidence to prove the allegations in Ms. 

Sweet’s proposed removal. AF, Tab 44 at 21-28. Among other things, she 

opined that the report was ambiguous in that it found that there “appear[ed]” to 

be abuse and there was as much evidence weighing against a finding of abuse as 

 

5 The AIB report spoke only in these broad terms; although it cited to evidence gathered 

as part of the investigation, the AIB report did not provide a detailed analysis. Id.

at 16.
6

there was evidence weighing in favor of it.6 Id. at 21, 23-24. Although 

ADPNS Spath proposed the action, and she indicated that she was not 

comfortable with returning Ms. Sweet to duty after these most recent allegations, 

ADPNS Spath echoed many of the appellant’s concerns with the AIB conclusions 

and proving that Ms. Sweet had committed the charged misconduct. See AF, 

Tab 41 at 81-96.

On January 30, 2015, the appellant and ADPNS Spath implemented a plan 

that detailed Ms. Sweet from her permanent position in the Community Living 

Center (CLC) to the Intensive Care Unit (ICU) under the supervision of the ICU 

nurse manager. E.g., AF, Tab 40 at 15; Tab 67 at 51. Her days were essentially 

split in half – she spent the mornings in the CLC and the afternoons in the 

ICU. See AF, Tab 40 at 15; Tab 67 at 41. While in the CLC, Ms. Sweet 

underwent "direct observation and close supervision" as well as "extensive reeducation" with Lauren Dunn, a Restorative Nurse and instructor for certified 

nursing assistant programs, as well as Dr. Caitlyn Holley, a Psychologist. AF, 

Tab 41 at 5, Tab 67 at 41. While in the ICU, Ms. Sweet was assigned to a nurse 

and prohibited from performing any patient care duties alone. AF, Tab 67 

at 46-47.

In a February 4, 2015 letter to Dr. Carolyn M. Clancy, Interim Under 

Secretary for Health at the agency, an anonymous individual alleged that Ms. 

Sweet was still engaging in patient care even though she had been found to have 

committed patient abuse. AF, Tab 40 at 8. An AIB was later empaneled to 

determine the veracity of the allegations in the letter received by Dr. Clancy. 

See, e.g., AF, Tab 47 at 15; Tab 67 at 35.

 

6 The appellant also indicated that while the AIB did not result in discipline of 

Ms. Sweet, it did result in a shakeup among the nurse managers. AF, Tab 44 

at 22, 27-28.
7

Meanwhile, on or about March 13, 2015, Ms. Dunn wrote a report which 

outlined her conclusions after weeks of observing Ms. Sweet in the CLC. AF, 

Tab 41 at 5-6. That report included the following:

Overall, her impatience at times, speaking in a sharp loud voice, 

rough handling while turning a resident, lack of regard for physical 

privacy, or ignoring residents’ behavioral or verbal cues could be 

interpreted as a lack of empathy or insensitivity. It became apparent 

however, that she has concrete thinking and may not be able to 

recognize the importance of behavioral, verbal or environmental cues 

that can affect the communication, psychosocial interactions and care 

of residents. By providing task focused care only, she was often 

unaware of the obvious residents’ expressed or non-verbal 

communications. She missed behaviors that started to escalate or 

didn’t notice how her actions caused the resident’s pain or 

upset. She does not appear to grasp the meaning or significance of 

these cues which are essential for resident to communicate their 

choice and needs. This was particularly apparent when she provided 

care for those having PTSD, dementia or other special care 

needs. When she is given directions to change her interventions, she 

persists in doing what is comfortable for her.

Although her current skills would have been sufficient in the past, 

she lacks the ability to meet the needs of the resident in the current 

paradigm of Resident Centered Care. Based on Ms. Sweet’s pattern 

of behaviors with providing care to patients and residents without 

insight or ability to alter/demonstrate to effectively shift her care to 

meet the total needs of the patient/resident population, I recommend 

that she not be assigned to direct care for residents or patients, as 

these behaviors will continue.

Id. at 6. Ms. Dunn met with several individuals, including ADPNS Spath, ICU 

Nurse Manager Margaret Rogers, and the appellant, on March 20, 2015, where 

she discussed her observations and the draft report. AF, Tab 47 at 45; Tab 54 

at 5; Tab 67 at 43, 47. Thereafter, the meeting attendees engaged in some 

discussion concerning the possibility of reassigning Ms. Sweet to another 

position (Supply Technician) that did not involve patient care. E.g., AF, Tab 66 

at 9, Tab 67 at 47; Tab 68 at 5. 

Also on or around March 20, 2015, the appellant and/or ADPNS Spath 

discussed the aforementioned report and alternative job placement with Ms. 
8

Sweet and her union representative. See, e.g., AF, Tab 60 at 4; Tab 65 at 5; Tab 

68 at 5. Ms. Sweet indicated that if the position of Supply Technician were 

offered, she would accept it. Id. Accordingly, the agency sought a position 

description for the permanent reassignment of Ms. Sweet from Nursing Assistant 

to Supply Technician. AF, Tab 60 at 5. On June 3, 2015, the agency received 

that position description, and on July 12, 2015, Ms. Sweet was assigned to the 

Supply Technician position. Id. at 4-5.

On July 31, 2015, the AIB that had been convened due to the anonymous 

complaint submitted its completed report. AF, Tab 47 at 15-32. The 

investigators found,

[Appellant] did not act appropriately when she disregarded the 

conclusions of the AIB she convened and did not sustain any of the 

charges against Ms. Sweet. [Appellant] had enough evidence to 

sustain discipline against Ms. Sweet and she had the responsibility as 

the Medical Center Director to do so.

Id. at 16, 27-28. Subsequently, on September 1, 2015, the agency’s Office of 

Accountability and Review recommended “appropriate action” against the 

appellant “for her failure to hold a subordinate accountable for patient abuse. Id.

at 42-24.

On November 9, 2015, Deputy Secretary Sloan Gibson issued a notice of 

pending action, proposing the appellant's removal based upon a single charge of 

"Failure to Take Timely Action." AF, Tab 48 at 23-25. The accompanying 

specification alleged, "Despite receiving information in March 2015 indicating 

that Nursing Assistant Marilee Sweet should not be involved in direct patient 

care, you failed to assure her removal from direct patient care until 

July 12, 2015." 7

 Id. at 24. On November 17, 2015, the appellant filed a written 

 

7 The agency’s charge is specifically limited to the appellant’s purported failure 

concerning the period between March 2015 and July 12, 2015. See AF, Tab 48 

at 23-25. Accordingly, this decision will only address that which the agency charged; it 

will not address any other possible improprieties. See, e.g., AF, Tab 12 at 7 (criticizing 

the appellant’s decision not to sustain the 2014 proposal to remove Ms. Sweet and 
9

response to the proposal notice. Id. at 12-21. On January 11, 2016, Deputy 

Secretary Gibson issued his decision sustaining the charge against the appellant 

and removing her from service, effective January 12, 2016. Id. at 5-6, 8-10. This 

Board appeal followed. 

ANALYSIS AND FINDINGS

Legal Standards for SES Removal Cases 

The SES is a corps of elite Federal managers held to a very high standard 

of conduct. Baracker v. Department of the Interior, 70 M.S.P.R. 594, 602 (1996 

Cir. 1994). They are expected to conform to a higher standard of conduct than 

other employees. See Dolezal v. Department of the Army, 58 M.S.P.R. 64, 71 

(1993), aff'd, 22 F.3d 1104 (Fed. Cir. 1994); Walcott v. U.S. Postal Service, 52 

M.S.P.R. 277, 284 (1992) (an agency can hold a high-ranking supervisor to a 

higher standard of conduct for purposes of penalty), aff'd, 980 F.2d 744 (Fed. Cir. 

1992) (Table).

Congress’ recent passage of the Veterans’ Access, Choice, and 

Accountability Act of 2014, highlights its very low tolerance for misconduct by 

members of the SES at the Department of Veterans Affairs (DVA). Pub. L. 

No. 113-146, Title VII, § 707 (2014). Congress granted the DVA Secretary the 

ultimate authority to determine when the removal of an SES member at the 

agency is warranted. More specifically, under 38 U.S.C. § 713(a), the agency 

“may remove an individual employed in a senior executive position at the 

Department of Veterans Affairs from their SES position if the Secretary 

determines the performance or misconduct of the individual warrants such 

removal.” 38 U.S.C. §§ 713 (a). Section (g)(2) defines the term “misconduct” to 

 

criticizing the appellant for allowing Ms. Sweet’s initial transfer to the ICU, which 

occurred in January 2015); Minor v. U.S. Postal Service, 115 M.S.P.R. 307, ¶ 10 (2010) 

(finding that an administrative judge erred in substituting a different specification for 

the one invoked by the agency because the Board is required to review an agency’s 

decision on an adverse action solely on the grounds invoked by the agency).
10

include “[n]eglect of duty, malfeasance, or failure to accept a directed 

reassignment or to accompany a position in a transfer of function.” 38 U.S.C. 

§ 713(g)(2). 

If the DVA Secretary exercises the aforementioned authority, 38 U.S.C. 

§§ 713(d), (e) provides for Board review, at which time the agency must prove 

the charge(s) by preponderant evidence. See 5 C.F.R. § 1210.18(a). The Board is 

required to review the agency’s decision on a disciplinary action solely on the 

grounds invoked by the agency; it may not substitute a more adequate or proper 

basis. See Minor, 115 M.S.P.R. 307, ¶ 10.

If the agency proves misconduct by the appellant, its chosen penalty is 

presumed reasonable and will be upheld unless the appellant adduces 

preponderant evidence that the agency’s chosen penalty is unreasonable under all 

the circumstances of the case. See 5 C.F.R. §§ 1210.18(a), (d). If the appellant 

meets that burden, the agency’s action must be reversed. See 5 C.F.R. 

§ 1210.18(a), (d).

Charge: Failure to Take Timely Action 

The gravamen of the charge is that after receiving Ms. Dunn's findings and 

recommendation on March 20, 2015, that Ms. Sweet be removed from direct care 

of patients and residents, the appellant failed to ensure that Ms. Sweet was 

removed from such care until July 12, 2015. See, e.g., AF, Tab 48 at 24. The 

agency asserted, without objection, that the charge is akin to neglect of duty 

because the appellant failed to take timely action to ensure that Ms. Sweet was 

not involved in direct patient care after March 20th. E.g., AF, Tab 14 (January 

19, 2016 telephonic conference recording), Tab 67 at 19. 

A charge of “neglect of duty” is akin to that of “negligence,” which may be 

defined as “a failure to exercise the degree of care required under the particular 

circumstances, which a person of ordinary prudence in the same situation and 

with equal experience would not omit.” See, e.g., Thomas v. Department of 
11

Transportation, 110 M.S.P.R. 176, ¶ 9 (2008), aff’d, 330 F. App’x. 920 (Fed. Cir. 

2009); see also Mendez v. Department of Treasury, 88 M.S.P.R. 596, ¶ 26 

(2001). To establish the appellant’s duty, the agency must prove that the 

appellant either knew or should have known of that duty. See Green v. 

Department of Navy, 61 M.S.P.R. 626, 630–31 (1994), aff’d, 36 F.3d 1116 (Fed. 

Cir. 1994) (Table).

Here, the appellant acknowledges receiving Ms. Dunn’s evaluation and 

recommendation concerning Ms. Sweet on March 20, 2015. AF, Tab 54 at 5. 

She also acknowledges that Ms. Sweet remained detailed to the position of 

Nursing Assistant in the ICU until she was converted to the position of Supply 

Technician, on July 12, 2015. AF, Tab 60 at 4-5. However, the appellant 

disputes the agency’s allegation that she engaged in any impropriety.

Although the appellant acknowledges receiving Ms. Dunn’s evaluation and 

recommendation concerning Ms. Sweet at the March 20, 2015 meeting, AF, 

Tab 54 at 5, the record is somewhat unclear as to what information was conveyed 

at that time. In a statement provided under oath for this appeal, Ms. Dunn 

detailed seven specific interactions between Ms. Sweet and patients during the 

observation period that were deemed inappropriate. See AF, Tab 67 

at 42-43. Examples include leaving a patient exposed while bathing him, 

speaking in a sharp and loud tone, and failing to recognize a patient’s expressed 

discomfort while moving him. Id. at 42-43. According to Ms. Dunn, these 

incidents were included in her March 2015 report, which she read to the appellant 

during the March 20, 2015 meeting. Id. at 43. However, the actual report, which 

was made available in this appeal, does not detail or otherwise identify those 

specific instances. See AF, Tab 41 at 5-6; but see AF, Tab 44 at 32 (interview 

with appellant, where she referenced an example of Ms. Sweet reportedly failing 

to notice a patient’s reaction); Tab 67 at 47 (Rogers declaration, indicating that 

Ms. Dunn discussed “several incidents” where Ms. Sweet failed to recognize 

patient needs and concerns at the meeting). Nevertheless, Ms. Dunn’s report 
12

clearly recommends that Ms. Sweet “not be assigned to direct care for residents 

or patients.” AF, Tab 41 at 6. In a sworn declaration, Ms. Dunn indicated that 

this recommendation was not limited to resident care in the CLC, but all direct 

patient care. AF, Tab 67 at 43. Ms. Dunn explained, “while Ms. Sweet had 

excellent time management skills and excelled in prioritizing and providing task 

centered personal care, her impatience at times, speaking in sharp loud voice, 

rough handling while turning a resident, lack of regard for physical privacy, or 

ignoring residents’ behavioral or verbal cues could be interpreted as a lack of 

empathy or insensitivity.” Id. According to Ms. Dunn, the appellant commented 

at the conclusion of the meeting, “some people are just not able to do certain 

jobs,” or words to that effect. 8

 Id.

While testifying before the AIB, the appellant seemed to corroborate Ms. 

Dunn’s claim, indicating that she knew that Ms. Sweet’s “days of direct patient 

care were over” following the March 20, 2015 meeting. AF, Tab 44 at 35-36. 

Accordingly, she engaged Ms. Sweet and her union representative, Christine 

Polnak, about the possibility of reassignment to a non-patient care position, after 

which, Ms. Sweet agreed. E.g., AF, Tab 60 at 4. 

The appellant maintains that she subsequently took appropriate action 

concerning Ms. Sweet in having her reassigned to the Supply Technician position. 

 

8 Assessment of the probative value of hearsay evidence necessarily depends on the 

circumstances of each case. Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 

(1981). The following factors affect the weight to be accorded to hearsay evidence: 

(1) the availability of persons with firsthand knowledge to testify at the hearing; 

(2) whether the statements of the out-of-court declarants were signed or in affidavit 

form, and whether anyone witnessed the signing; (3) the agency’s explanation for 

failing to obtain signed or sworn statements; (4) whether declarants were disinterested 

witnesses to the events, and whether the statements were routinely made; 

(5) consistency of declarants’ accounts with other information in the case, internal 

consistency, and their consistency with each other; (6) whether corroboration for 

statements can otherwise be found in the agency record; (7) the absence of 

contradictory evidence; (8) credibility of declarant when he made the statement 

attributed to him. Id. at 87.
13

See AF, Tab 67 at 9-11. For example, during the period in question, the AVAMC 

sought a position description for the Supply Technician position from VISN. AF, 

Tab 60 at 4. The position description was classified and returned to AVAMC on 

June 3, 2015, and Ms. Sweet was reassigned to the position on July 12, 2015. Id. 

at 4-5. Thus, the appellant did take remedial actions after the March 20, 2015 

meeting in that she and other necessary parties immediately began to take steps to 

create a Supply Technician position and get buy-in from Ms. Sweet to accept the 

reassignment. See, e.g., AF Tab 60 at 4-5; Tab 66 at 9-11; Tab 68 at 5-6. 

The appellant also maintains that, when asked during the March 20, 2015 

meeting, the nursing professionals expressed no objections about Ms. Sweet 

remaining in the ICU until the agency could effectuate her permanent 

reassignment. See AF, Tab 66 at 9. Therefore, she argued, at least initially, that 

her actions were appropriate because Ms. Sweet remained in the ICU and under 

the prior restrictions limiting her patient interactions following the March 20, 

2015 report. See, e.g., AF, Tab 48 at 14-16; Tab 66 at 14. However, the record 

reflects otherwise.

ICU Nurse Manager Rogers provided a sworn statement indicating that she 

attended a meeting in late March 2015 with the Human Resources Chief and 

ADPNS Spath, where it was determined that Ms. Sweet needed to be made whole. 

AF, Tab 67 at 47. Accordingly, contrary to the appellant’s prior assertions, all 

prior restrictions were lifted and Ms. Sweet performed patient care tasks 

independently from that point until her reassignment on July 12, 2015. See id. 

Ms. Rogers indicated that she witnessed Ms. Sweet performing tasks 

independently, tasks that included ambulating with patients, performing finger 

sticks, drawing blood, and performing EKGs. Id. Ms. Rogers’ sworn statement 

also indicates that Ms. Sweet floated to other units for part of that period, though 

there is no indication whether she independently performed patient care duties 

while floating. See id. 
14

Although there is significant evidence to suggest that the appellant may 

have mistakenly believed that Ms. Sweet would remain under patient care 

restrictions during the relevant period, March 20 – July 12, 2015, Ms. Rogers’ 

sworn statement establishes that she was under no such restrictions. Compare

AF, Tab 44 at 32-33, Tab 54 at 4-5, Tab 66 at 9, with AF, Tab 67 at 47. The 

appellant presented no evidence to refute Ms. Rogers’ eyewitness account. 

Instead, she has responded to Ms. Rogers’ statement by alleging that the lifting of 

Ms. Sweet’s restrictions was done without her knowledge or approval. AF, 

Tab 69 at 8. 

Based upon the aforementioned evidence, I find that the agency supported 

its charge by preponderant evidence. In reaching that finding, I note that during 

the March 20, 2015 meeting, Ms. Dunn reported her observations of Ms. Sweet’s 

deficiencies and recommended that the appellant remove Ms. Sweet’s duties 

involving direct patient care. The appellant herself recognized there were issues 

as to whether Ms. Sweet was suitable to perform nursing assistant duties 

involving direct care. Nevertheless, Ms. Sweet independently performed patient 

care duties for several more months. Although the appellant may have devoted 

efforts to reassigning Ms. Sweet, she failed to exercise proper oversight or 

monitoring in the interim. It appears that she did not make any inquiry to 

confirm whether Ms. Sweet’s duties remained limited while the reassignment 

action was processed. The record reflects that the appellant had the authority to 

detail Ms. Sweet away to another position not involving direct patient care duties 

while the appellant was working on the reassignment action, but she did not 

exercise that authority. A person of ordinary prudence in the same situation with 

equal experience as the appellant would person would have exercised appropriate 

oversight and monitoring of the situation.

I find that, under the circumstances of this case and in light of the mission 

of the agency, the appellant should have known that Ms. Sweet’s status warranted 

her immediate and continued attention. Indeed, such a failure to exercise 
15

appropriate oversight is inconsistent with the mission of the agency. The 

appellant is a Member of the SES and Director of AVAMC, who is held to a 

higher standard of conduct than a subordinate employee, clearly would be 

expected to have known this.

I find, based on evidence of record, a person of ordinary prudence in the 

same situation and with equal experience as the appellant would have either 

removed Ms. Sweet from direct care duties entirely pending her reassignment to 

the Supply Technician position or exercised appropriate oversight and monitoring 

to ensure that Ms. Sweet had close supervision and monitoring while performing 

those duties. See Thomas, 110 M.S.P.R. 176, ¶ 9. Such a failure to exercise 

appropriate oversight is inconsistent with the mission of the agency. Although 

there are no indications that Ms. Sweet engaged in any impropriety during the 

relevant period, the risk of inadequate care existed. The agency was not required 

to wait until there was actual harm before taking such action. See Boatman v. 

Department of Justice, 66 M.S.P.R 58, 59 (1994) (holding that the agency need 

not watt until harm actually occurs stating “[t]hat more dire consequences did not 

occur is a matter of chance.”). Consequently, the agency’s charge is 

SUSTAINED.

Affirmative Defenses

An appellant must prove any affirmative defense by preponderant evidence. 

5 C.F.R. § 1201.4(q); 5 C.F.R. §§ 1210.18(b)(3), (c). In her appeal form, the 

appellant alleged that the agency had committed a number of harmful errors, 

though the arguments appear to be substantive defenses to the charged 

misconduct, rather than genuine allegations of harmful error. See AF, Tab 1 at 

6. She next alleged that the agency’s action amounted to retaliation for her 

efforts to provide a reasonable accommodation for Ms. Sweet. Id. She lastly 

contended that in the weeks following her proposed removal, the appellant 

disclosed a number of prohibited personnel practices or retaliation and abuse of 
16

authority to the Deputy Secretary, and she filed an equal employment opportunity 

(EEO) complaint against the Deputy Secretary. Id.

Following her appeal, I issued a January 16, 2016 affirmative defenses 

order. AF, Tab 4. That order provided the legal standards for proving harmful 

error, whistleblower retaliation, and retaliation for engaging in EEO 

activity. Id. The order directed the appellant to specifically identify the factual 

bases for her affirmative defenses by January 22, 2016. Id. However, the 

appellant failed to submit a response specifically addressing any affirmative 

defense she intended to pursue. See AF, Tab 52. Moreover, the appellant failed 

to show good cause for her failure to do so and her closing brief contained no 

arguments concerning any affirmative defense. See AF, Tab 63. Nevertheless, I 

will attempt to address any affirmative defense that she may have intended to 

raise and to pursue. 

Harmful Error 

Harmful error is an “error by the agency in the application of its procedures 

that is likely to have caused the agency to reach a conclusion different from the 

one it would have reached in the absence or cure of the error. 5 C.F.R. 

§ 1201.4(r). Although the appellant used the term “harmful error” in her initial 

pleading, the accompanying allegations were more appropriately addressed while 

determining whether the agency met its burden and whether the penalty is 

reasonable. See AF, Tab 1 at 6 (alleging that the agency committed harmful error 

by ignoring the types of duties Ms. Sweet performed during the relevant period, 

and ignoring the fact that there were no complaints involving Ms. Sweet during 

that period).

The appellant claimed during a recorded telephonic conference on 

January 26, 2016, that the agency committed harmful error by taking the removal 

action against her after she had not sustained the charges in the 2014 notice of 

proposed removal of Ms. Sweet. AF, Tab 61. To prove harmful error, the 
17

appellant must show, by preponderant evidence, that there was a law, rule or 

regulation applicable to the removal proceedings, the agency did not follow it, 

and that, if it had been followed, the agency was likely to have reached a 

different decision on her removal. See 5 C.F.R. §§ 1201.4(r), 

1201.56(b)(2)(i)(C), 1210.18(c); Cornelius v. Nutt, 472 U.S. 648, 657-59 (1985) 

(harmful error is not defined in 5 U.S.C. § 7701 and the Board defines it by 

regulation). Here, I find no law, rule, or regulation that would preclude the 

agency from taking the instant removal action despite her having not sustained 

the proposed removal of Ms. Sweet. Accordingly, I find that the harmful error 

claim is without merit. 

Retaliation for EEO Activity 

In her initial appeal form, the appellant appeared to suggest that her 

removal was taken because she filed an informal discrimination complaint after 

Deputy Secretary Gibson issued the November 9, 2015 notice of pending removal 

action. AF, Tab 1 at 6. She also suggested that agency retaliated against her for 

providing an employee with a reasonable accommodation. Id. She reportedly 

filed an informal discrimination complaint on December 23, 2015, and on 

January 4, 2016, her EEO counselor sent a demand letter to Deputy Secretary 

Gibson who has not responded it. Id.9 To the extent that she is raising such a 

 

9 The appellant also alleged in her initial appeal form that she disclosed prohibited personnel 

practices of retaliation and abuse of authority and prohibited personnel practices to the Deputy 

Secretary in her November 17, 2015 response letter to the notice of proposed removal. AF,

Tab 1 at 6. However, I am unable to discern any viable whistleblowing claim. The substance of 

the argument in that initial pleading merely recounted her criticisms of the AIB and its 

conclusion that she should be held administratively responsible for failing to discipline Ms. 

Sweet. Id. Moreover, she did not show good cause for failure to respond to the 

January 16, 2016 affirmative defenses order which required to provide information concerning 

such a claim and offered no explanation for her failure to so. See AF, Tab 3. In addition, when I 

asked the appellant to identify her affirmative defenses during the January 26, 2016 prehearing 

conference, she did not state that she was asserting whistleblower reprisal. See AF, 
18

claim, she did not, however, respond to my January 16, 2016 affirmative defenses 

order, which required her to submit further information. See AF, 

Tab 3. Moreover, when asked during the telephonic conferences on January 22 

and 26, 2016, to assert all her affirmatives defenses, she did not raise such a 

reprisal claim as an affirmative defense. See AF, Tabs 51 and 61. She similarly 

failed to raise such a claim in her closing brief. See AF, Tab 66. She may, 

however, have raised that claim in a subsequent rebuttal submission. See AF, 

Tab 69. Accordingly, I will now consider the matter. 

An appellant may establish EEO reprisal using direct evidence or any of 

three types of circumstantial evidence: a convincing mosaic of evidence from 

which a discriminatory intent may be inferred; evidence of disparate treatment of 

similarly situated comparators; or evidence that the agency’s stated reason is not 

worthy of credence but rather a pretext for discrimination. Savage v. Department 

of the Army, 122 M.S.P.R. 612, ¶¶ 42-43 (2015). A convincing mosaic can be 

inferred from evidence of suspicious timing, ambiguous statements, behavior 

towards and comments directed at other protected employees, and other relevant 

“bits and pieces” of evidence. Id. ¶ 42 (quoting Troupe v. May Department 

Stores Company, 20 F.3d 734, 736-37 (7th Cir. 1994)). If an appellant shows by 

preponderant evidence that the prohibited consideration was a motivating factor 

in the contested personnel action, violating 42 U.S.C. § 2000e-16, the Board will 

inquire whether the agency has shown by preponderant evidence that it still 

would have taken the contested action in the absence of the discriminatory or 

retaliatory motive. Id., ¶¶ 49-51. If the agency meets that burden, its violation 

will not require reversal of the action. Id., ¶ 51. 

 

Tab 61. Accordingly, I find that even if the appellant’s initial appeal form could be construed as 

raising a whistleblower reprisal affirmative defense, she later abandoned it.
19

Here, the appellant failed to cite any location within the record where the 

complaints in question may be available, and after reviewing the voluminous 

filings, I have been unable to locate them. In any event, Deputy Secretary 

Gibson, who was the proposing official and the deciding official, issued the 

proposal to remove the appellant prior to her purported EEO complaint. Compare

AF, Tab 1 at 6, with AF, Tab 48 at 23-25. Although the decision to remove the 

appellant was dated soon after the purported discrimination complaint, I also find 

no basis for concluding that this timing supports the appellant’s bare assertion of 

reprisal. In fact, the appellant has failed to identify any evidence to suggest that 

the deciding official was even aware of the appellant’s EEO complaint against 

him. Also, as previously indicated, the agency supported its charge. I find that 

the proven charge constitutes a legitimate business reason for the agency’s 

action. I find that the appellant failed to produce any evidence that the real 

reason for the action was reprisal for her discrimination complaint. Therefore, I 

find that she failed to prove the claim. 

The appellant also alleged in her appeal and the recorded telephonic 

conference on January 26, 2016, that the agency action was taken in retaliation 

for her efforts to provide reasonable accommodation to Ms. Sweet by reassigning 

her to the Supply Technician position. AF, Tab 1 at 6; Tab 61. She has not, 

however, introduced any supportive evidence. It is possible that the agency’s 

decision to remove the appellant was motivated by her decision not to sustain Ms. 

Sweet’s proposed removal in 2014. See, e.g., AF, Tab 12 at 7 (agency brief, 

critical of appellant’s handling of allegations against Ms. Sweet prior to the 

period at issue in their charge); Tab 47 at 16, 27-28 (AIB report, dated weeks 

before the appellant’s proposed removal, recommending the appellant be held 

responsible for not upholding the proposed removal of Ms. Sweet). However, I 

find no evidence that supports a finding that the agency was improperly 

motivated by the appellant’s subsequent attempts to place Ms. Sweet in another 

position – an act that the appellant characterizes as a reasonable accommodation 
20

and one that the agency has not interfered with. Instead, the record suggests that 

the agency’s motivation(s) were entirely based upon the appellant’s role in Ms. 

Sweet being permitted to continue dealing with patients, something that the 

agency claims to have been avoidable even if Ms. Sweet was being given a 

reasonable accommodation. See, e.g., AF, Tab 70 at 5-6. As previously 

indicated, I found the agency established a legitimate business reason, i.e., 

essentially neglect of duty, for taking the removal action. I find that the appellant 

failed to prove that the action was taken in reprisal for providing Ms. Sweet with 

a reasonable accommodation. Accordingly, I find that the appellant has failed to 

establish this affirmative defense. 

The penalty was unreasonable under the circumstances. 

The Board generally analyzes the agency’s penalty selection, including 

penalties assessed to members of the SES, under the statutory “efficiency of the 

service” standard, as interpreted by Douglas and its progeny. See 5 U.S.C. 

§§ 7513(a), 7701(b)(3); Douglas v. Department of Veterans Affairs, 

5 M.S.P.R. 280, 307-08 (1981). That general rule places the burden of proving 

the reasonableness of the agency’s penalty selection on the agency. See 5 C.F.R. 

§ 1201.56(b)(1). However, as indicated earlier, the newly enacted legislation 

under which the Board exercises jurisdiction over this appeal narrowly 

circumscribes the Board’s authority regarding review of the agency’s 

penalty. 38 U.S.C. § 713(a)(1). In interpreting 38 U.S.C. § 713, the Board 

concluded that the efficiency of the service standard and Douglas do not apply, 

and that the express statutory language creates a rebuttable presumption in favor 

of the agency’s discretion to select the appropriate penalty. 79 Fed. Reg. 63031, 

63032 (Oct. 22, 2014). 10 

 

10 The Board’s final rule implementing this new legislation instructs as follows:

Penalty review. As set forth in paragraph (a) of this section, proof of 

the agency's charge(s) by preponderant evidence creates a 
21

Thus, proof of the charged misconduct shall create a presumption that the 

imposed penalty was warranted. 5 C.F.R. §§ 1210.18(a), (d). However, the 

appellant may rebut this presumption by establishing that the penalty was 

unreasonable under the circumstances of the case. Id. If she does so, the 

agency’s action must be reversed because mitigation of the penalty by the 

administrative judge is not authorized. Id.

Here, as noted earlier, Deputy Secretary Gibson served as the proposing 

and deciding official in the appellant’s removal action. See AF, Tab 48 at 8-10, 

23-25; Tab 67 at 34-39. His decision letter indicates that after reviewing the 

evidence file and the appellant’s written response, he found that that appellant’s 

misconduct was serious and “inconsistent with the Department’s core values and 

mission of public service.” AF, Tab 48 at 8. In a sworn statement provided for 

this appeal, he elaborated on the bases for his decision. AF, Tab 67 

at 35-36. According to Deputy Secretary Gibson, the appellant had a duty to “act 

at all times in a manner that is truly Veteran-centric by identifying, fully 

considering, and appropriately advancing the interest of Veterans.” Id. at 35. He 

further indicated that the appellant was expected to “ensure that the safety of 

Veteran patients is at the forefront of every decision” she made. Id. at 36. He 

declared that “Unnecessarily exposing patients to potential harm by permitting an 

employee who . . . was known to have committed patient abuse in the past to 

continue to provide hands-on-care to patients is contrary to the values” he 

expected. Id.

 

presumption that the Secretary's decision to remove or transfer the 

appellant was warranted. An appellant may rebut this presumption by 

establishing that the imposed penalty was unreasonable under the 

circumstances of the case, in which case the action is reversed. 

However, the administrative judge may not mitigate the Secretary's 

decision to remove or transfer the appellant. 

5 C.F.R. § 1210.18(d).
22

Arguing against her removal, the appellant presented a sworn statement 

detailing her record, which includes more than 42 years of service for the agency 

without any prior discipline. AF, Tab 66 at 4-5; see also AF, Tab 11 

at 8-14. Her statement, which is unrebutted in this regard, reflects a very 

successful career, including a number of accomplishments specific to her tenure 

as Director AVAMC. 11 AF, Tab 66 at 4-5. One of those accomplishments is 

evidenced by a letter from Deputy Secretary Gibson, dated just days after he 

proposed the appellant’s removal. AF, Tab 10 at 18; Tab 66 at 5. The letter 

congratulates the appellant because AVAMC had been recognized as “one of the 

Highest Performing Hospitals in Healthcare Quality for 2015,” something he 

deemed a “remarkable achievement.” Id.

Many of the appellant’s arguments concerning the merits of the agency’s 

charge are more relevant to the presumptively reasonable penalty. To that end, 

while I find that the agency proved its charge, I do not find that the evidence the 

agency presented supports the severity alleged. See, e.g., AF, Tab 67 at 4-31. In 

other words, the agency proved that the appellant should have done more, but the 

appellant proved that her actions were not as egregious as the agency suggests.

In terms of the severity of the appellant’s failure to take timely action, I 

first note that the agency has consistently insinuated that Ms. Sweet was a clear, 

present, and imminent danger to patients. While arguing before me, the agency 

has even, at times, erroneously claimed that Ms. Sweet was previously disciplined 

for physical abuse of a patient. Compare AF, Tab 67 at 9, with AF, Tab 27 at 70, 

72-73. However, the evidence the agency presented reflects a more complicated 

situation. For example, although there had been prior complaints involving Ms. 

 

11 To the extent that the agency may disagree with the appellant’s assertions concerning her 

career and accomplishments at AVAMC, they failed to present any argument or evidence., other 

than those related to Ms. Sweet. 
23

Sweet in the CLC, and some had been substantiated, Ms. Sweet had also received 

high marks for performance. Compare AF, Tab 27 at 70-74, with AF, Tab 27. at 

41-45. In fact, the appellant received contrasting opinions about Ms. Sweet on 

the very day the agency has relied upon as key in establishing the appellant’s 

duty to act. During the March 20, 2015 meeting, while Ms. Dunn conveyed her 

negative report concerning Ms. Sweet’s performance in the CLC, two ICU Nurse 

Managers, Ms. Rogers and Ms. Wettig, informed the appellant that Ms. Sweet 

was performing successfully and positively contributing to their unit with no 

issues over the same period. AF, Tab 66 at 8-9; see also AF, Tab 67 at 47. The 

appellant reportedly asked the nursing professionals if there were any objections 

to Ms. Sweet continuing to work in the ICU under the previously imposed 

restrictions, and none were raised. 12 AF, Tab 66 at 9. Moreover, the record fails 

to establish, or even suggest, that Ms. Sweet engaged in any impropriety or 

caused any harm following that March 20, 2015 meeting. See, e.g., AF, Tab 60 

at 5. Although the positive reviews, the acquiescence of others, and the absence 

of actual harm do not negate Ms. Dunn’s negative reports, all are relevant in 

considering the seriousness of the appellant’s offense. 

I next note that while Ms. Dunn’s March 2015 report did recommend 

removing Ms. Sweet from patient care based upon her observations in the CLC, 

her recommendation does not reflect as dire a situation as the agency seems to 

argue. See AF, Tab 41 at 6. For example, the agency has repeatedly argued that 

the appellant, as Director, had the authority to remove any employee suspected of 

 

12 I note that the only evidence reflecting the positive report and absence of any objection from 

ICU managers is the sworn statement from the appellant herself. See AF, Tab 66 at 8-

9. However, the agency presented no evidence to the contrary. The agency did submit a 

statement from one of those managers, Ms. Rogers, but her statement is noticeably devoid of any 

opinion about Ms. Sweet’s performance or concern about her return to the ICU. See AF, Tab 67 

at 46-47. 
24

potential abuse, and she should have immediately exercised that authority 

following Ms. Dunn’s report. E.g., AF, Tab 67 at 21-22, 37. However, while Ms. 

Dunn’s report did reflect significant cause for concern, she did not specifically 

allege that Ms. Sweet abused any patient or posed an imminent danger of doing 

so. See Tab 41 at 5-6. Ms. Dunn instead indicated that Ms. Sweet’s skills 

“would have been sufficient in the past,” but were insufficient under current 

standards. Id. at 6. She described Ms. Sweet’s improprieties as acts that “could 

be interpreted as a lack of empathy or insensitivity.” AF, Tab 41 at 6, Tab 67 

at 43. This context is also relevant in considering the seriousness of the 

appellant’s offense.

In her sworn statement, again unrebutted in this regard, the appellant 

indicated that remedial action was complicated by Ms. Dunn and Dr. Holley 

telling her that Ms. Sweet had a cognitive disorder, which may have both caused 

her improprieties and required reasonable accommodation under the law. AF, 

Tab 66 at 8; see also AF, Tab 65 at 5. The agency counters that even if Ms. 

Sweet qualified for a reasonable accommodation, the “appellant had the 

obligation to synthesize the facility’s obligations under the Rehabilitation Act 

with her duty to ensure safe patient care.” AF, Tab 70 at 5-6. While my 

sustaining the charge necessarily reflects agreement that the appellant should 

have done more after receiving the March 20, 2015 report, the appellant did not 

sit by idly. Instead, the appellant immediately acted to put a plan in motion that 

would permanently reassign Ms. Sweet – a plan that would remove her from 

patient care, utilize the skills she excelled at, and fulfill a need at AVAMC. See, 

e.g., AF, Tab 60 at 4-5, Tab 66 at 9-11, Tab 68 at 5-6. These facts are also 

relevant in considering the severity of the appellant’s offense.

As discussed above, the appellant repeatedly expressed her belief that Ms. 

Sweet remained in the ICU, under significant limitations that included one-onone supervision, throughout the relevant period. See, e.g., AF, Tab 44 at 32-33;

Tab 66 at 9. She asserts that any lifting of those restrictions occurred without her 
25

approval or knowledge. AF, Tab 67 at 47; Tab 69 at 9. The agency has presented 

arguments to the contrary, but I find them unsupported. See, e.g., AF, Tab 41 at 

97-98; Tab 67 at 24, 47. I find that the record suggests the appellant was under 

the impression, albeit a mistaken one, that Ms. Sweet would remain in the ICU, 

where she had done nothing wrong, under constant supervision. And while it 

may seem counterintuitive, given the vulnerable nature of patients requiring 

intensive care, the record establishes the ICU as the place where Ms. Sweet’s 

patient interaction was least likely to cause harm due to a number of factors, 

including its patient to provider ratio. See, e.g., AF, Tab 41 at 96; Tab 66 at 8-9; 

Tab 68 at 4. Therefore, to the extent that Ms. Sweet did not remain in the ICU 

under constant supervision during the relevant period, the record suggests that the 

appellant’s failure was one of omission. To be clear, if the appellant had met the 

agency’s expectations, Ms. Sweet would not have been permitted to work with 

patients at all, regardless of any restrictions. Nevertheless, the aforementioned 

context again goes to the seriousness of the appellant’s offense. 

When he proposed the appellant’s removal, Deputy Secretary Gibson 

indicated that he considered a number of factors to determine the appropriate 

penalty. AF, Tab 48 at 24. However, his proposal did not detail any factors that 

one might expect to weigh against the most severe possible penalty –

removal. Id. at 23-25. In his decision letter, Deputy Secretary Gibson indicated 

that he considered the appellant’s response to the charge. Id. at 8-10. However, 

while that written response alluded to many of the aforementioned considerations, 

such as her more than 42 years of service for the agency, complications stemming 

from attempts to provide reasonable accommodation, and the ICU being the most 

controlled unit available, Deputy Secretary Gibson’s decision letter did not. Id. 

at 8-10.

In the absence of a hearing in this appeal, Deputy Secretary Gibson 

submitted a sworn statement, but that statement also fails to discuss any factors 
26

that one might expect to weigh against removal. 13 See AF, Tab 67 

at 34-39. Instead, both his decision letter and sworn statement generally discuss 

how he found the appellant’s misconduct serious and “inconsistent with the 

Department’s core values and mission of public service.” E.g., AF, Tab 48 

at 8. Deputy Secretary Gibson indicated that the appellant had a duty to “act at 

all times in a manner that is truly Veteran-centric by identifying, fully 

considering, and appropriately advancing the interest of Veterans,” but failed to 

do so by “unnecessarily exposing patients to potential harm.” AF, Tab 67 

at 35-36. 

After reviewing the record as a whole, I find that the single proven offense 

before me is serious, and I recognize that senior managers are held to a higher 

standard of conduct than other employees. See Dolezal, 58 M.S.P.R. at 71; 

Walcott, 52 M.S.P.R. at 284. I also recognize that the law creates a presumption 

that the chosen penalty is reasonable. 38 U.S.C. § 713; 5 C.F.R. §§ 1210.18(a), 

(d). However, I must determine whether the appellant has rebutted that 

presumption.

The record fails to establish that the deciding official considered any of the 

previously discussed mitigating matters, including the fact that the offense was 

not as serious as the agency has argued. In that regard, although the March 2015 

report placed the appellant on notice that remedial action was necessary, the 

record does not reflect as simple, obvious, or dire a situation as the agency has 

presented. In addition, it is interesting to note that the record fails to establish or 

even suggest that the agency has disciplined any other individuals for their role in 

 

13 Curiously, Deputy Secretary’s sworn statement speaks of the “gravity of the charges, both 

separately and together,” as well as his having “sustained all of the charges.” AF, Tab 67 

at 38. However, there was only one charge and one attendant specification in the proposal 

notice. AF, Tab 48 at 8-10, 23-25. 
27

this matter. While the agency may rightfully expect someone in the appellant’s 

senior position to take further precautionary measures under the circumstances, 

the fact remains that she did immediately act in a way that remedied the problem, 

permanently, with no resulting harm. To be clear, this decision should not be 

interpreted as minimizing the agency’s concerns for the well-being of veterans or 

criticizing the agency’s high expectations in that regard. Nevertheless, based on 

the foregoing, I find that the facts and circumstances as presented by the record 

before me demonstrate that it is unreasonable to remove an employee who has 

very positively contributed to the agency for more than 42 years for this one 

offense.

In conclusion, I find that appellant has rebutted the presumption that the 

penalty was reasonable. If 38 U.S.C. § 713 did not prohibit it, I would mitigate 

the penalty. However, because that is not allowed, the only option is to reverse 

the action outright. 5 C.F.R. §§ 1210.18(a), (d). Therefore, agency’s decision to 

remove the appellant from the Federal service is REVERSED.

DECISION

The agency’s action is REVERSED.

___/S/___________________________

Arthur S. Joseph

Chief Administrative Judge

NOTICE TO APPELLANT

Pursuant to 38 U.S.C. § 713(e)(2), this decision is final and not subject to 

any further appeal.

ORDER

I ORDER the agency to cancel appellant’s removal from the position of 

SES-0670, Director, AVAMC and to restore her effective January 12, 2016. See 

Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The 
28

agency must complete this action no later than 20 days after the date of this 

decision.

I 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. I 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 this 

Order. If there is a dispute about the amount of back pay, interest due, and/or 

other benefits, I ORDER the agency to pay the appellant the undisputed amount 

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

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.

ATTORNEY FEES

You may ask for the payment of attorney fees (plus costs, expert witness 

fees, and litigation expenses, where applicable) by filing a motion with this office 

as soon as possible, but no later than 60 calendar days after the date of this 

decision. Pursuant to 5 C.F.R. § 1210.20(d)(2), any such motion must be

prepared in accordance with the provisions of 5 C.F.R. Part 1201, Subpart H, and 

applicable case law. 
29

ENFORCEMENT

If, after the agency has informed you that it has fully complied with this 

decision, you believe that there has not been full compliance, you may ask the 

Board to enforce its decision by filing a petition for enforcement with this office, 

describing specifically the reasons why you believe there is noncompliance. 

Your petition must include the date and results of any communications regarding 

compliance, and a statement showing that a copy of the petition was either mailed 

or hand-delivered to the agency. Pursuant to 5 C.F.R. § 1210.20(d)(1), the 

procedures in 5 C.F.R. Part 1201, Subpart F, not those in Part 1210, apply to any 

such petition. 
30

Eg3

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-50's (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.