Filed: Oct. 11, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHANNON L. BOPPRE, DOCKET NUMBER Appellant, DE-0752-14-0386-I-1 v. DEPARTMENT OF THE INTERIOR, DATE: October 11, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Shannon L. Boppre, Belcourt, North Dakota, pro se. Teresa M. Garrity, Esquire, Bloomington, Minnesota, 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 affirme
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHANNON L. BOPPRE, DOCKET NUMBER Appellant, DE-0752-14-0386-I-1 v. DEPARTMENT OF THE INTERIOR, DATE: October 11, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Shannon L. Boppre, Belcourt, North Dakota, pro se. Teresa M. Garrity, Esquire, Bloomington, Minnesota, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHANNON L. BOPPRE, DOCKET NUMBER
Appellant, DE-0752-14-0386-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: October 11, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shannon L. Boppre, Belcourt, North Dakota, pro se.
Teresa M. Garrity, Esquire, Bloomington, Minnesota, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal from Federal service. Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant was formerly a GS-5 Telecommunications Equipment
Operator for the Turtle Mountain Agency in the agency’s Bureau of Indian
Affairs. Initial Appeal File (IAF), Tab 4 at 23. On April 8, 2014, the agency
proposed to remove her based on four charges: (1) misuse of a Government
charge card (2 specifications); (2) failure to follow instructions (1 specification);
(3) delinquency on a Government charge card (1 specification); and (4) off-duty
criminal misconduct (5 specifications). Id. at 39-46. After hearing the
appellant’s oral reply, id. at 35-37, the deciding official sustained all charges and
imposed the penalty of removal, effective May 16, 2014, id. at 23, 25-33.
¶3 After holding the appellant’s requested hearing, the chief administrative
judge found that the agency proved its charges by preponderant evidence and that
it acted well within the bounds of reasonable management discretion in imposing
the penalty of removal. IAF, Tab 17, Initial Decision (ID) at 9-17. He also found
that the appellant failed to prove her affirmative defense of harmful
error. ID at 17-18. The appellant petitions for review of the initial decision.
Petition for Review (PFR) File, Tab 1.
¶4 The facts of the case, as the chief administrative judge found them, are as
follows. The agency scheduled the appellant to go on temporary duty (TDY) to
Standing Rock Agency from December 27, 2013, to January 7, 2014. Between
3
December 21-24, 2013, the appellant made several cash withdrawals totaling
$260 using her Government charge card, which she claimed were to buy things
she needed for her trip, such as shampoo. Her withdrawals triggered an alert, and
the agency’s finance department suspended her card. When the appellant was
unable to reserve a hotel room, her supervisor, Chief L.N., had her card
reinstated. She instructed the appellant that she was to use the card only for her
hotel room and food; she was not to make any further cash withdrawals. Instead,
the appellant would have to obtain reimbursement for any allowable out-of-
pocket expenses by submitting a travel voucher. The appellant made daily cash
withdrawals from January 2-5, 2013, in the total amount of $760. The appellant’s
supervisor ended the appellant’s TDY because the agency’s finance department
continued to report problems with the appellant’s charge card, whereupon it was
determined that the appellant had exceed her allowable per diem by
approximately $600.
¶5 The appellant attempted to make a payment to the credit card company to
cover the overage, but she did so with a bad check and her account went into
delinquent status, which the agency discovered via a monthly report of agency
employees with past due accounts. Then the agency discovered that, on
August 26, 2013, the appellant pled guilty to 5 misdemeanor counts of passing
bad checks.
¶6 The agency’s first charge, misuse of a Government charge card, was for
making $1,160 in cash withdrawals when the authorized meals and incidental
expenses (M&IE) was only $46 per day, thereby exceeding her withdrawal limit
by $631, and for using the card for $229.14 in purchases after she had withdrawn
her maximum per diem. IAF, Tab 4 at 39-40, 49-113. The appellant admitted to
making the cash withdrawals but claimed she did not exceed her per diem on
purpose. The chief administrative judge correctly found that, because the charge
did not require proof of intent, the appellant’s admission that she made the
Government card charges was sufficient to sustain the specification. Baracker v.
4
Department of the Interior, 70 M.S.P.R. 594, 602 (1996); ID at 10. He also found
that the appellant understood the agency’s policy against using the card for
purchases once the per diem limit had been met. ID at 10-11.
¶7 The second charge, failure to follow instructions, concerned the four cash
withdrawals the appellant made in January after Chief L.N. expressly instructed
her not to make any further cash withdrawals. The appellant contended that her
supervisor instructed her to stop making withdrawals for a few days but had given
her permission to use her card again by the time she resumed making
withdrawals. The chief administrative judge found that the appellant’s
explanation was not supported by the documentary evidence and otherwise
unsubstantiated, although the appellant could have called her supervisor as a
witness if the appellant believed she would corroborate the appellant’s story. ID
at 11-12.
¶8 The third charge, delinquency on a Government charge card, concerned the
appellant’s appearance on the March 2014 delinquency list with a balance of $521
more than 30 days past due. IAF, Tab 4 at 115-16. The appellant admitted that
she was delinquent, and the chief administrative judge found that this was
sufficient to sustain the charge. ID at 12.
¶9 The fourth charge, off-duty criminal misconduct, concerned the five
misdemeanor convictions for passing bad checks. IAF, Tab 4 at 118-27. The
appellant attempted to explain that the bad checks were the result of bank errors,
not the result of her own criminal conduct, and were only misdemeanors and so
not very serious. The chief administrative judge found that the agency only
charged her with pleading guilty to misdemeanors and that her attempts to blame
her bank were unsubstantiated. Cf. Alberto v. Department of Veterans
Affairs, 98 M.S.P.R. 50, ¶ 10 (2004) (finding that the appellant’s attempt to shift
the blame for his misconduct to others reflected poor potential for rehabilitation);
ID at 12-13.
5
¶10 On review, the appellant reiterates her argument below that, if the agency
had issued her a travel authorization in a timely manner, she would have known
what her allowed per diem was and would not have exceeded it. PFR File, Tab 1
at 1. It appears that the agency’s electronic travel system was down and it was
difficult to find anyone available to issue a manual travel authorization because of
the end-of-year holiday season so the appellant did not receive her travel
authorization before she left. The appellant suggests that the lack of a travel
authorization meant she did not know the limit on her per diem. It is fairly easy
to discover Federal per diem rates by making a telephone call or conducting a
simple internet search. Instead, the appellant contacted the issuing bank, which
could only tell the appellant the maximum amount that the bank would authorize,
not the amount allowed by the agency. We agree with the chief administrative
judge that the absence of a travel authorization does not excuse the
appellant’s behavior.
¶11 The appellant contends for the first time on review that the agency removed
her in retaliation for stating that the agency violated travel policy by sending her
TDY without a travel authorization. Id. The appellant began making improper
cash withdrawals days before she would have received a travel order, so it makes
little sense that the agency would retaliate against her for making disclosures that
did not begin until she already had commenced her course of misconduct. In any
event, the Board will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Banks v. Department
of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has made no such
showing here.
¶12 The appellant claimed that the agency’s failure to provide her with a travel
authorization prior to her departure constituted harmful error warranting reversal
of the removal. The chief administrative judge found, and we agree, that the late
arrival of the appellant’s travel authorization is not “harmful error in the
6
application of the agency’s procedures in arriving at such decision”
under 5 U.S.C. § 7701(c)(2)(A). Boatman v. Department of Justice, 66 M.S.P.R.
58, 63 (1994); ID at 17-18. Instead, it is an alleged error that concerns the
circumstances under which the charged misconduct occurred and relates, if at all,
to the merits or the penalty. Boatman, 66 M.S.P.R. at 63.
¶13 Turning to the penalty, when all of the agency’s charges are sustained, the
Board will review the agency-imposed penalty only to determine if the agency
considered all the relevant factors and exercised management discretion within
the tolerable limits of reasonableness. Ellis v. Department of
Defense, 114 M.S.P.R. 407, ¶ 11 (2010). In making this determination, the Board
must give due weight to the agency’s primary discretion in maintaining employee
discipline and efficiency, recognizing that the Board’s function is not to displace
management’s responsibility, but to ensure that managerial judgment has been
properly exercised. Id. The Board will modify or mitigate an agency-imposed
penalty only when it finds the agency failed to weigh the relevant factors or the
penalty clearly exceeds the bounds of reasonableness. Id.
¶14 The nature and seriousness of the appellant’s offense is the most significant
factor in a penalty determination. Hamilton v. Department of Homeland
Security, 117 M.S.P.R. 384, ¶ 11 (2012). Here, as to the penalty determination,
the deciding official prepared an extensive Douglas 2 analysis as part of the
removal notice. IAF, Tab 4 at 28-32. He considered the appellant’s misconduct
to be very serious because it showed a blatant disregard for her supervisor’s
instructions and of the agency’s charge policies despite specific notice of the
rules. Id. at 29. The deciding official found that the delinquency on the
appellant’s charge card account and her misdemeanor convictions showed, “you
did not merely fail to pay your debts, you attempted to pay them from non-
existent accounts, which demonstrates financial irresponsibility and a lack of
2
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
7
integrity.” Id. He considered that the appellant’s position was with a law
enforcement organization and required frequent travel and, necessarily, frequent
use of the Government charge card and that her misconduct called her honesty
and integrity into doubt. Id. at 30.
¶15 The appellant has a prior 14-day suspension in August 2012 for
9 specifications of misuse of a Government credit card (in which she made
unauthorized cash withdrawals while not in a travel status), and 1 specification of
failure to pay a Government credit card on time. Id. at 31, 129, 131-36. By that
point in time, the appellant had clear notice of the policies and rules surrounding
the use of Government charge cards. However, within less than 4 months from
her return to duty following the suspension, the appellant again began to misuse
her charge card. Even after her supervisor gave the appellant specific instructions
to stop taking cash advances from the charge card, the appellant continued to do
so. The deciding official found these circumstances to reflect poor potential for
rehabilitation. Id. at 31. He remarked that the appellant claimed during her oral
reply that she had learned her lesson after the suspension, but she clearly had not.
Id. at 31, 36.
¶16 The deciding official also considered that removal was consistent with the
agency’s table of penalties and with the penalties imposed on others for similar
offenses. Id. at 30. He considered the appellant’s more than 13 years of service,
her good performance record, and reputation for dependability. Id.
¶17 On review, the appellant asserts generally that the deciding official did not
know her well enough to make judgments about her work ethic and character.
PFR File, Tab 1 at 1. She also alleges that the misdemeanor convictions did not
involve dishonesty because if she had wanted to be dishonest, she would not have
reported them to her supervisor as soon as she had notice from the court. Id. In
her oral reply, she said she informed her supervisor, not that she was facing
charges for passing bad checks, but about problems with her bank. IAF, Tab 4
at 36-37. However, a coworker saw a newspaper article about the appellant’s
8
convictions and showed it to the appellant’s supervisor. Id. The notes of the oral
reply state, “[The appellant] expressed disappointment that some co-workers felt
compelled to be involved in other employees’ personal affairs.” Id. at 37. The
appellant’s statements in her oral reply are at odds with her claim on review that
she informed her supervisor about her legal trouble.
¶18 The chief administrative judge found, and we agree, that the deciding
official properly considered the aggravating and mitigating factors most relevant
to the case. He further found, and we agree, that the penalty of removal is well
within the bounds of reasonableness, and there is no basis here to interfere with
the agency’s legitimate exercise of management discretion.
¶19 Accordingly, we find that the chief administrative judge correctly affirmed
the agency’s removal action.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
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title 5 of the U.S Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
