UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SUSAN E. WILLIAMS,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

CH-0752-13-0396-I-1

DATE: August 28, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Ariel E. Solomon, Esquire, Albany, New York, for the appellant.

Aaron J. Bennett, Esquire, Dallas, Texas, 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 90-day suspension. For the reasons 

discussed below, we GRANT the agency’s petition for review, AFFIRM the 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

portion of the initial decision sustaining the agency’s charges, and MODIFY the 

initial decision to SUSTAIN the removal action. 

BACKGROUND

¶2 The appellant was a GS-12 Revenue Officer for the Internal Revenue 

Service (IRS). Initial Appeal File (IAF), Tab 8, Subtab 4a. On August 30, 2012, 

the agency proposed to remove the appellant based on two charges: (1) conduct 

unbecoming an IRS employee; and (2) failure to provide accurate information on 

official documents. Id., Subtab 4d. The agency listed one specification in 

support of its first charge and three specifications in support of its second charge. 

Id. After providing the appellant with the opportunity to respond to the proposal 

notice, the deciding official issued a decision letter sustaining the proposed 

removal. Id., Subtab 4b. The appellant was removed from her position effective 

February 22, 2013. 2

 Id., Subtab 4a. Thereafter, she filed an appeal contesting her 

removal and raising numerous affirmative defenses, including a claim that the 

agency’s action was barred by the doctrine of laches and claims that the agency 

discriminated against her on the basis of her disability, retaliated against her for a 

prior equal employment opportunity and Board appeal, and violated her due 

process rights. IAF, Tab 1, Tab 18 at 3-4, Tab 26 at 10. 

¶3 Following a hearing, the administrative judge issued an initial decision 

mitigating the removal to a 90-day suspension. IAF, Tab 27, Initial Decision (ID)

at 2, 24. The administrative judge sustained both of the agency’s charges but 

found that the agency had failed to establish the first two specifications of its 

charge of failure to provide accurate information on official documents. ID at 

5-10. The administrative judge found that the agency established nexus and that 

 2 The appellant was previously removed by the agency effective March 2, 2011, for: 

(1) conduct unbecoming an IRS employee; (2) unauthorized possession of property; and 

(3) making false statements on an official work record. See Williams v. Department of 

the Treasury, MSPB Docket No. CH-0752-11-0434-I-1. The Board, however, reversed 

the agency’s removal action because it found that the agency had violated the 

appellant’s due process rights. Id., Final Order (Aug. 10, 2012).
3

the appellant had failed to establish her affirmative defenses. ID at 11-18. 

However, she found that the penalty of removal exceeded the maximum 

reasonable penalty and that the maximum penalty within the bounds of 

reasonableness was a long-term suspension of 90 days. ID at 23-24.

¶4 The agency has timely filed a petition for review. Petition for Review 

(PFR) File, Tab 1. The appellant has filed a response to the agency’s petition for 

review, and the agency has filed a reply to the appellant’s response. PFR File, 

Tabs 4-5. In its petition for review, the agency challenges the administrative 

judge’s findings that it failed to prove the first two specifications of its charge of 

failure to provide accurate information on official documents and that the 

agency-imposed penalty exceeded the bounds of reasonableness. PFR File, Tab 1 

at 6-24. The appellant, on the other hand, contends that the administrative judge 

properly found that the agency failed to prove the first two specifications of its 

second charge and that the administrative judge correctly mitigated the penalty. 3

 

PFR File, Tab 4. 

¶5 As discussed below, the agency’s assertions fail to provide a basis for 

disturbing the administrative judge’s finding that the agency did not prove the 

first two specifications of its charge of failure to provide accurate information on 

official documents. However, we agree with the agency’s contention that the 

administrative judge erred in mitigating the penalty. 

 3 The parties do not dispute the administrative judge’s findings that the agency 

established nexus and that the appellant failed to establish her affirmative defenses. 

Accordingly, we do not further address these issues here. In any event, we discern no 

basis for disturbing these well-reasoned findings on review.
4

DISCUSSION OF ARGUMENTS ON REVIEW

We discern no basis for disturbing the administrative judge’s findings regarding 

the agency’s charges.

Conduct unbecoming an IRS employee

¶6 To prove a charge of conduct unbecoming a federal employee, an agency is 

required to demonstrate that the appellant engaged in the underlying conduct 

alleged in support of the broad label. See Raco v. Social Security 

Administration, 117 M.S.P.R. 1, ¶ 7 (2011). In support of its charge of conduct 

unbecoming an IRS employee, the agency specified that, on January 14, 2009, the 

appellant was arrested and charged with one count of stealing in the amount of 

$136.50. IAF, Tab 8, Subtab 4d at 1. The agency stated that, on February 24, 

2010, the appellant pled guilty to one count of petty larceny and she was 

sentenced on March 4, 2010, to participate and complete 12 hours in the petty 

larceny offender program. Id. 

¶7 We agree with the administrative judge’s finding that the agency proved 

that the appellant engaged in the misconduct underlying this charge. In 

particular, as noted by the administrative judge, the appellant stipulated to the 

arrest for the allegation of shoplifting. ID at 5; IAF, Tab 23 at 1, Tab 8, Subtab 

4o at 48. The administrative judge further properly found that the appellant pled 

guilty to one count of petty larceny. 4

 ID at 5-6; IAF, Tab 8, Subtab 4o at 63. 

Accordingly, we discern no basis for disturbing the administrative judge’s finding 

that the agency proved its charge of conduct unbecoming an IRS employee by 

preponderant evidence. ID at 6.

Failure to provide accurate information on official documents

¶8 A charge of failure to provide information on official documents is a 

non-intent based charge. See Butler v. Internal Revenue Service, 86 M.S.P.R. 

 4 The administrative judge properly noted that, while the appellant explained that she 

pled guilty to avoid the costs of litigation and have the offense expunged from her 

record, an expungement of her record did not mean the offense did not occur. ID at 5.
5

513, ¶ 7 (2000) (finding that specific intent was not a part of the charge of failure 

to provide accurate information on official documents). As previously noted, the 

agency listed three specifications in support of this charge. IAF, Tab 8, Subtab 

4d at 1-2. Under the first specification, the agency stated that, on February 9, 

2009, the appellant documented a field call to Taxpayer A in the Integrated 

Collection System (ICS). Id. at 1. The agency stated that Taxpayer A, however, 

advised the appellant’s supervisor on February 12, 2009, that they had never met 

in person. Id. at 1. Under the second specification, the agency stated that, on 

February 11, 2009, the appellant documented a field call to Taxpayer B in ICS. 

Id. The agency stated that Taxpayer B, however, advised the appellant’s 

supervisor that, while they had spoken with the appellant on February 11, 2009, 

the appellant did not visit their office on that date. Id. Under the third 

specification, the agency stated that, on February 11, 2009, the appellant 

documented a field call to Taxpayer C in ICS, in which the appellant stated that 

she had an in-depth discussion with the power-of-attorney (POA) for Taxpayer C. 

Id. at 2. The agency stated that the POA for Taxpayer C, however, stated in an 

interview on May 20, 2009, that he did not meet with the appellant in person on 

February 11, 2009, and that he had in fact never met with the appellant. Id.

¶9 In finding that the agency had failed to prove the two specifications under 

this charge, the administrative judge considered hearing testimony from the 

appellant and from the appellant’s supervisor and made comprehensive credibility 

findings. 5

 ID at 6-10. The Board must give deference to an administrative 

judge’s credibility determinations when they are based, explicitly or implicitly, 

on the observation of the demeanor of witnesses testifying at a hearing and can 

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

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

Here, the administrative judge thoroughly reviewed the evidence and the hearing 

 5 Neither Taxpayer A nor Taxpayer B testified.
6

testimony and specifically cited to Hillen v. Department of the Army, 35 M.S.P.R. 

453, 458 (1987), in setting forth her credibility determinations. ID at 6-10. 

Because the administrative judge’s conclusions of credibility regarding the first 

two specifications underlying this charge were complete, based on proper 

considerations, and consistent with the record, we defer to them on review. See 

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (the Board will 

give due deference to the credibility findings of the administrative judge where 

the administrative judge considered the evidence as a whole, drew appropriate 

inferences, and made reasoned conclusions). Accordingly, we discern no basis 

for disturbing the administrative judge’s finding that the agency did not prove the 

first two specifications underlying its charge of failure to provide accurate

information on official documents.

¶10 Regarding the third specification, the administrative judge considered the 

appellant’s testimony that it must have been a mistake or error on her part to state 

in the case history that she made a field call to the POA of Taxpayer C on 

February 11, 2009. ID at 10; Hearing Compact Diskette (CD) (Aug. 1, 2013) 

(testimony of the appellant). The administrative judge further considered the 

testimony of an agent with the agency’s Treasury Inspector General for Tax 

Administration (TIGTA). ID at 10. As noted by the administrative judge, the 

TIGTA agent testified that she contacted Taxpayer C’s POA on May 20, 2009, 

inquiring if the appellant had made a field call to him on February 11, 2009. ID 

at 10; Hearing CD (Jul. 31, 2013) (testimony of TIGTA agent). The TIGTA agent 

testified that the POA informed her that the appellant did not meet with him in 

person on February 11, 2009, and that he had never met with the appellant. 

Hearing CD (Jul. 31, 2013) (testimony of TIGTA agent). Based on the foregoing, 

we agree with the administrative judge’s well-reasoned finding that the agency 

proved the third specification of its charge of failure to provide accurate 

information on official documents and that it therefore established this charge. 
7

ID at 10; see Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 649 (1996) (proof of 

only one specification supporting a charge is sufficient to sustain the charge).

The administrative judge erred in mitigating the penalty of removal.

¶11 When all of the agency’s charges are sustained, but some of the underlying 

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

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

parameters of reasonableness. Parker v. U.S. Postal Service, 111 M.S.P.R. 510,

¶ 8, aff’d, 355 F. App’x 410 (Fed. Cir. 2009). In applying this standard, the 

Board must take into consideration the failure of the agency to sustain all of its 

supporting specifications. Id. That failure may require, or contribute to, a 

finding that the agency’s penalty is not reasonable. Id. In such a case, the Board 

will look for evidence showing that the agency would have imposed the same 

penalty for the sustained specification. Id.

¶12 Nevertheless, the Board’s function is not to displace management’s 

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

management’s judgment has been properly exercised and that the penalty selected 

by the agency does not exceed the maximum limits of reasonableness. Id., ¶ 9. 

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

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

bounds of reasonableness. 6

 Id. The deciding official need not show that he 

considered all the mitigating factors in determining the penalty. Jones v. 

Department of the Interior, 97 M.S.P.R. 282, ¶ 14 (2004). The Board will 

independently weigh the relevant factors only if the deciding official failed to 

 6 The Board has articulated factors to be considered in determining the propriety of a 

penalty, such as the nature and seriousness of the offense, the employee’s past 

disciplinary record, and the supervisor’s confidence in the employee’s ability to 

perform his assigned duties. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 

305-06 (1981), aff’d, 111 F. App’x 610 (Fed. Cir. 2004). All of the factors will not be 

pertinent in every instance, and so the relevant factors must be balanced in each case to 

arrive at the appropriate penalty. Id. at 306.
8

demonstrate that he considered any specific, relevant mitigating factors before 

deciding upon a penalty. Id. If the agency’s penalty is beyond the bounds of 

reasonableness, the Board will mitigate only to the extent necessary to bring it 

within the parameters of reasonableness. Id.

¶13 The administrative judge mitigated the penalty based in part on her finding 

that there were strong mitigating factors that the deciding official had not 

sufficiently considered and that rendered the penalty unreasonable. ID at 21-24. 

In particular, the administrative judge found that the appellant’s incident of 

shoplifting involved a small dollar amount of merchandise that consisted of 

off-duty conduct and that did not involve government property. ID at 21. The 

administrative judge found that, because the shoplifting incident had been 

expunged from the appellant’s record, the deciding official’s concern that the 

matter could become public knowledge is negated. ID at 21. The administrative 

judge further found that the appellant’s disabling medical conditions, including 

the appellant’s mental condition of depression and October 2008 lap band 

surgery, were strong mitigating factors that she could not ignore. ID at 21-23. 

The administrative judge noted that, as to two prior attendance-related 

suspensions that were relied on by the deciding official in making his penalty 

determination, the appellant had stated that she had not applied for leave under 

the Family Medical Leave Act (FMLA) to cover this period because her 

supervisor had not discussed it with her. ID at 22. The administrative judge 

found it reasonable to infer from the evidence that the appellant’s mental 

condition of depression played a role in her failure to apply for leave under the 

FMLA. ID at 23.

¶14 We agree with the administrative judge’s finding that the deciding official 

failed to give adequate consideration to relevant mitigating factors, such as the 

appellant’s depression. The appellant’s doctor testified during the hearing that 

the appellant suffered from depression in 2009, at the time of the shoplifting 

episode and the sustained incident of failure to provide accurate information on 
9

official documents. Hearing CD (Jul. 31, 2013) (testimony of the appellant’s 

doctor). She also testified that, because depression manifests in inattention, 

memory loss, and impaired judgment, it was reasonable to attribute errors in 

reporting data and judgment to the appellant’s major depressive order. Id. While 

the deciding official testified that he had considered the appellant’s depression in 

making his penalty determination, we find that he did not give it sufficient

consideration. ID at 20; Hearing CD (Jul. 31, 2013) (testimony of the deciding 

official). The administrative judge also correctly found that the fact that the 

incident of shoplifting occurred off-duty is a mitigating factor that was not 

considered by the deciding official in his penalty determination. See, e.g.,

Mallery v. U.S. Postal Service, 41 M.S.P.R. 288, 293 (1989) (considering the 

non-work related nature of the theft at issue as a mitigating factor). Thus, we 

agree that the deciding official’s treatment of the mitigating factors in his 

decision letter and testimony was not sufficiently substantive, and that it is 

appropriate not to defer to his penalty determination. See Stuhlmacher v. U.S. 

Postal Service, 89 M.S.P.R. 272, ¶ 24 (2001) (finding that it was not appropriate 

to defer to the deciding official’s penalty determination where he failed to 

adequately consider relevant mitigating factors).

¶15 Notwithstanding this issue, we find that removal was the maximum 

reasonable penalty in this case. First, not all of the mitigating factors listed by 

the administrative judge in the initial decision are relevant to this case. For 

example, we discern no evidence demonstrating a clear link between the

appellant’s other medical conditions, such as her lap band surgery, and her 

misconduct. See Arena v. U.S. Postal Service, 121 M.S.P.R. 125, ¶ 12 n.1 (2014)

(finding that the appellant’s contentions regarding her personal circumstances and 

depression did not weigh in favor of mitigation where there was no evidence on 

how they affected her behavior). Additionally, we disagree with the 

administrative judge’s finding that the shoplifting incident involved a small dollar 

amount of merchandise. As previously noted, the appellant was arrested and 
10

charged with one count of stealing in the amount of $136.50. We find 

distinguishable the cases the administrative judge relied on in finding that this 

constituted a small dollar amount of merchandise. See Mallery, 41 M.S.P.R. at

292-93 (1989) (mitigating the appellant’s removal to a 30-day suspension where 

the agency charged that the appellant was arrested at a local grocery store and 

charged with shoplifting a kitchen knife valued at $3.59); Thurmond v. U.S. 

Postal Service, 41 M.S.P.R. 227, 231-32 (1989) (finding the de minimis nature of 

the appellant’s theft to be an overriding mitigating factor where the appellant was 

charged with shoplifting a box of candy). 

¶16 Second, the deciding official properly found that there were strong 

aggravating factors weighing in favor of removal. The deciding official correctly 

determined that the sustained misconduct under the charge of failure to provide 

accurate information on official documents was serious. IAF, Tab 8, Subtab 4b at 

1-2; Hearing CD (Jul. 31, 2013) (testimony of deciding official); see 

Butler, 86 M.S.P.R. 513, ¶ 7 (finding the sustained misconduct to be serious 

where the appellant was charged in part with failure to provide accurate 

information on official documents). He explained that, as a Revenue Officer, the 

appellant was responsible for representing the agency in matters dealing with the 

taxpaying public, including the seizure of assets. IAF, Tab 8, Subtab 4b at 2. He 

testified that failing to provide accurate information on official documents

impacted the appellant’s position as a Revenue Officer because the official 

documents depict what the agency has done to effectively administer tax laws. 

Id. The deciding official also properly considered the seriousness of the 

shoplifting incident and its relation to the appellant’s position and duties. He 

found this misconduct to be serious in light of the high standards of honesty and 

integrity required of the appellant’s position. Hearing CD (Jul. 31, 2013) 

(testimony of deciding official); cf. Cooper v. U.S. Postal Service, 42 M.S.P.R. 

174, 180-81 (1989), aff’d, 904 F.2d 46 (Fed. Cir. 1990) (Table) (finding removal 

to be a reasonable penalty where a law enforcement official shoplifted two bottles 
11

of men’s cologne); Mojica-Otero v. Department of the Treasury, 30 M.S.P.R. 46, 

50 (1986) (removal was reasonable where a Customs Officer was detained for 

shoplifting two pairs of shorts). 

¶17 In addition, the deciding official considered the appellant’s prior discipline, 

which included a 30-day suspension in 1996 for unauthorized access of the 

Integrated Data Retrieval System, a 15-day suspension in 2009 for absence 

without official leave (AWOL) charges, and a 168-day suspension in 2010 for 

AWOL charges. IAF, Tab 8, Subtab 4b at 1. The agency notified the appellant in 

the notice of proposed removal that it was relying on her prior discipline to 

support the instant action. IAF, Tab 8, Subtab 4d at 2. Under Bolling v. 

Department of the Air Force, 9 M.S.P.R. 335 (1981), when an agency relies on 

past discipline to support the disciplinary action that is on appeal, the Board will 

generally review the past discipline to determine whether: (1) the employee was 

informed of the action in writing; (2) the employee had an opportunity to have the 

action reviewed, on the merits, by an authority different from the one that took 

the action; and (3) the action was made a matter of record. Id. at 338–39. If 

those three criteria are met, the Board will discount the past discipline only if it is 

left with a “definite and firm conviction that a mistake has been committed.” Id. 

at 340. Here, the administrative judge did not review the appellant’s past 

discipline upon which the agency relied. However, the Board has held that 

Bolling review is required only where the appellant has actually challenged the 

validity of her prior discipline on appeal. Rosenberg v. Department of 

Transportation, 105 M.S.P.R. 130, ¶ 34 (2007). Where, as here, the appellant did 

not challenge the validity of the prior discipline, only the occurrence of the prior 

discipline must be verified. See id. The parties’ stipulations, IAF, Tab 23 at 1, 

constitute verification of the appellant’s prior discipline. See 
12

Rosenberg, 105 M.S.P.R. 130, ¶ 34. We therefore conclude that the agency 

properly considered the appellant's prior discipline. 7 See id.

¶18 The deciding official stated that he had lost confidence in the appellant’s

ability to do her job and that her potential for rehabilitation was minimal based on 

her prior record and the fact that she did not show remorse for the shoplifting 

charge. Hearing CD (Jul. 31, 2013) (testimony of the deciding official). He

testified that either of the charges against the appellant standing alone warranted 

removal because of the extreme seriousness of the charges and the appellant’s 

prior disciplinary history. Id. For the reasons discussed above, we find that 

removal is the maximum reasonable penalty under the circumstances. The

agency’s removal action is therefore SUSTAINED.

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 further review of this final decision. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

 7 To the extent the administrative judge found that the appellant’s absence-related prior 

discipline should not be considered as an aggravating factor because of the appellant’s 

failure to request FMLA, any such finding was an error. 
13

If you submit your request via commercial delivery or by a method 

requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. If the action involves a claim of discrimination based on race, color, 

religion, sex, national origin, or a disabling condition, you may be entitled to 

representation by a court-appointed lawyer and to waiver of any requirement of
14

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) 

and 29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board