UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RICHARD FIGUEROA,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

NY-0752-14-0203-I-1

DATE: December 22, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Alan E. Wolin, Esquire, Jericho, New York, for the appellant.

Alexander Lawrence Judka, Esquire, New York, New York, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

sustained his 45-day suspension. Generally, we grant petitions such as this one 

only when: the initial decision contains erroneous findings of material fact; the 

initial decision is based on an erroneous interpretation of statute or regulation or 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, we conclude that the petitioner has not established any basis under 

section 1201.115 for granting the petition for review. Therefore, we DENY the 

petition for review and AFFIRM the initial decision, which is now the Board’s 

final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant was employed as a Customs and Border Patrol Officer

(CBPO) officially assigned to the Firearms Unit at John F. Kennedy International 

Airport. Initial Appeal File (IAF), Tab 38, Hearing Transcript (HT) at 227-28. 

One day, after completing his regular shift, he performed an overtime shift in 

another unit. Id. at 216-17. Because of the appellant’s conduct during that shift 

and afterwards, the agency proposed to suspend him on the basis of one charge of 

failure to follow supervisory instructions and one charge of disrespectful conduct 

toward a supervisor. IAF, Tab 7 at 62-64. The first charge included three 

underlying specifications best summarized as follows: (1) the appellant refused

to place a stamp on a certain document and to complete certain inspections, 

despite repeated orders to do so; (2) when he was working the overtime 

assignment, the appellant told the supervisory CBPO that he was leaving due to 

illness and, despite being instructed to do so, failed to sign out before leaving; 

and (3) after being instructed in an email to provide a note from the medical 

provider from whom he alleged to have sought treatment on the day in question, 

the appellant replied that he would not do so. Id. at 62. The charge of 
3

disrespectful conduct, which arose out of the appellant’s conduct on that same 

day, was based upon his refusal to complete an assignment as instructed by the 

supervisory CBPO and his comments to the supervisory CBPO in refusing to 

complete the assignment. Id. The appellant provided both an oral and written 

reply to the proposed suspension. Id. at 65-90. The deciding official sustained 

both charges and the underlying specifications and imposed the 45-day 

suspension. Id. at 91-94.

¶3 The appellant filed the instant appeal challenging the suspension and 

asserting affirmative defenses of equal employment opportunity (EEO)

retaliation, discrimination based on gender and national origin, and harmful 

procedural error. IAF, Tab 1. After conducting the requested hearing, the 

administrative judge issued an initial decision affirming the suspension and 

denying the appellant’s affirmative defenses. IAF, Tab 46, Initial Decision (ID). 

The appellant has filed a petition for review, and the agency has responded. 

Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 First, the appellant challenges the administrative judge’s decision to sustain 

specification 1 of the failure to follow instructions charge. ID at 9-19. He 

asserts, as he did below, that the agency policy on the relevant procedures was 

unclear, which led to the supervisors’ uncertainty about the policy and his

disagreement with them about how to complete the assigned tasks. PFR File, 

Tab 1 at 17. He also challenges the decision to sustain specification 2 of this 

charge, which related to his failure to sign out upon leaving his overtime shift, 

because he asserts that, since he was working overtime, he should not have had to 

sign out. Id. 

¶5 To prove a charge of failure to follow instructions, an agency must establish 

that the employee was given proper instructions and he failed to follow the 

instructions, without regard to whether the failure was intentional or 
4

unintentional. Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 16 

(2014). Even when the employee may have substantial reason to question the 

instructions, absent unusual circumstances, such as when obedience would cause 

him irreparable harm or place him in a clearly dangerous situation or when the 

instructions are clearly unlawful, he must first comply with the instructions and 

then, if he disagrees with them, register his complaint or grievance later.

Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶¶ 16, 18, aff’d, 343 F. 

App’x 605 (Fed. Cir. 2009); Larson v. Department of the Army, 91 M.S.P.R. 511, 

¶ 21 (2002). 

¶6 The Board must defer to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on observing the 

demeanor of witnesses testifying at a hearing; the Board may 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). The 

administrative judge correctly sustained specification 1 because she found the 

agency proved that the appellant failed to follow the supervisors’ instructions 

when they ordered him to complete certain procedures and that the appellant did 

not show that he believed that these instructions were unlawful or that obeying 

them would have placed him in a clearly dangerous situation or caused him 

irreparable harm. ID at 17-19. She also properly sustained specification 2 

because she found that the appellant did not dispute that he failed to sign out and 

that the supervisory CBPO credibly testified both that he told the appellant to 

sign out and that the appellant was required to do so. ID at 19-23. The appellant 

has failed to proffer sufficiently sound reasons for disturbing the administrative 

judge’s credibility determinations in support of her decision sustaining these 

specifications. Furthermore, his reasserting policy disagreements with the 

supervisors’ instructions does not provide a reason for disturbing the initial 

decision because he was required to comply with the instructions despite his 

disagreement. Pedeleose, 110 M.S.P.R. 508, ¶ 16.
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¶7 Next, the appellant challenges the administrative judge’s decision to sustain 

specification 3 regarding his failure to provide medical documentation because he 

asserts, among other things, that the agency had no basis to request medical 

documentation under the circumstances, including the fact that he was working an 

overtime shift and thus was not required to request leave. PFR File, Tab 1 

at 16-17; ID at 23-25. He also reasserts that the agency’s request for medical 

documentation and the requirement that he sign out before leaving his shift 

constituted harmful procedural error. PFR File, Tab 1 at 21-22; ID at 45-46. 

However, as the administrative judge found, the agency was entitled to request 

supporting documentation when it suspected an employee of leave abuse, the 

appellant was ordered to provide medical documentation, there were reasonable 

grounds to request the documentation from the appellant, who left work after a 

disagreement with two supervisors, and there was no dispute that he failed to 

provide the requested documentation. ID at 23-25. Thus, we find that the 

administrative judge properly sustained this specification because she found that 

the appellant failed to follow instructions regarding medical documentation for 

his leave usage. See generally Wilkinson v. Department of the Air Force, 

68 M.S.P.R. 4, 7 (1995) (holding that discipline for failing to properly request 

leave may be imposed regardless of the employee’s eventual entitlement to the 

leave). Furthermore, we find no harmful procedural error because we agree with 

the administrative judge that the agency acted within its authority to request the 

appellant to sign out and to provide medical documentation and because we agree 

with her interpretation of the collective bargaining agreement in finding that the 

agency was entitled to request the medical documentation under the 

circumstances of this case. ID at 45-46.

¶8 The appellant also generally challenges the administrative judge’s decision 

to sustain the disrespectful conduct charge. PFR File, Tab 1 at 16-17; 

ID at 26-28. The administrative judge sustained this charge because she found 

that the supervisory CBPO’s account describing the appellant’s disrespectful 
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comments was more credible than the appellant’s account alleging that he did not 

make the disrespectful comments and that the agency proved the essence of this 

specification. ID at 28. The appellant has not demonstrated that the 

administrative judge erred in sustaining this charge based upon her well-reasoned 

credibility determinations. Gill v. Department of Defense, 92 M.S.P.R. 23, ¶ 15

(2002).

¶9 We agree, moreover, with the administrative judge that the appellant failed 

to establish his affirmative defenses. The appellant challenges the administrative 

judge’s finding that he failed to prove his affirmative defenses of EEO retaliation

and discrimination based on sex and national origin. PFR File, Tab 1 at 19-21; 

ID at 29-41. The administrative judge found that, other than conclusory 

statements about employees who engaged in misconduct or just general 

statements of disparate treatment, there was no evidence that the appellant was 

treated differently than other employees of a different nationality or who were 

female. ID at 34, 37. Additionally, she found that the appellant failed to 

establish his claim of EEO retaliation because he did not prove that anyone 

involved in making the decision to discipline him was aware of his EEO activity. 

ID at 41. Based on our review, we find that the administrative judge correctly 

applied current Board law to analyze these claims and properly found them 

unsupported. See Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42 

(2015). The appellant also has provided no reason to disturb the administrative 

judge’s finding that he failed to establish his claim of harmful procedural error 

based upon an asserted violation of his Weingarten rights2because we agree that 

he failed to show that these rights were violated. PFR File, Tab 1 at 21-22; 

ID at 42-45. We thus discern no reason to reweigh the evidence or substitute our 

 

2

See National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975) 

(holding that employees have a right to union representation during investigatory 

interviews). 
7

assessment of the record evidence for that of the administrative judge. 3 Crosby v. 

U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997). 

¶10 Lastly, the appellant generally challenges the penalty determination. PFR 

File, Tab 1 at 18-19. The deciding official testified regarding his consideration of 

all of the Douglas factors in imposing the 45-day suspension. HT at 88-93, 

97-103. Based upon our review of the record, we agree with the administrative 

judge that the 45-day suspension is within the tolerable bounds of reasonableness. 

ID at 48-53; see Grubb v. Department of the Interior, 96 M.S.P.R. 377, ¶ 49 

(2004) (finding that a 45-day suspension was a reasonable penalty for the 

sustained charges of absence without leave, failing to follow leave procedures, 

misrepresenting of facts, unprofessional behavior towards a coworker/team 

leader, and disruptive behavior in the workplace when the appellant had a prior 

disciplinary record of three suspensions within less than 6 months of the 

suspension at issue and the appellant’s failure to recognize that she had done 

anything wrong reflected very poorly on her potential for rehabilitation); see also

O’Lague v. Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 20 (2016) 

(stating that law enforcement officers may be held to a higher standard); Redfearn 

v. Department of Labor, 58 M.S.P.R. 307, 316 (1993) (finding that an employee’s 

deliberate refusal to follow supervisory instructions constitutes serious 

misconduct that cannot properly be condoned).

 

3

The appellant asserts that the agency failed to establish a nexus between its action and 

the efficiency of the service. PFR File, Tab 1 at 17-18; ID at 47-48. We disagree 

because the deciding official testified that, as a law enforcement agency responsible for 

crucial safety functions, the agency needs to maintain a strict chain of command in 

which lawful instructions are obeyed, HT at 86-87, and because it is beyond dispute that 

an employee’s failure to follow instructions affects an agency’s ability to carry out its 

mission, Cobert v. Miller, 800 F.3d 1340, 1351 (Fed. Cir. 2015).
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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). 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

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 
9

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 

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board