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James M. Johnson v. Department of the Treasury

June 22, 2011

JAMES M. JOHNSON, PETITIONER,
v.
DEPARTMENT OF THE TREASURY, RESPONDENT.



Petition for review of the Merit Systems Protection Board in case no. CH0752090691-I-1.

Per curiam.

NOTE: This disposition is nonprecedential.

Before PROST, MOORE, and O'MALLEY, Circuit Judges.

James M. Johnson petitions for review of the final decision of the Merit Systems Protection Board ("Board") affirming his removal as a Revenue Agent at the Internal Revenue Service ("Agency"). Because the Board committed no legal error, we affirm.

I. BACKGROUND

Mr. Johnson worked as a Revenue Agent at the Agency and performed audits as his principal duty. He had a history, however, of missing work without permission and not following the instructions of his superiors. In particular, Mr. Johnson incurred a five-day suspension in April 2008 for being Absent Without Leave ("AWOL"). Later that year he was suspended again, this time for twenty days, for failing to follow instructions and being AWOL. The issue on appeal arises from similar misconduct.

On February 13, 2009, Mr. Johnson's supervisor, Jean Klajbor, requested that Mr. Johnson schedule three case reviews by the first week of March if the cases were not closed by March 6, 2009. She also ordered that Mr. Johnson refer a fourth case for audit. Mr. Johnson did not rebut Ms. Klajbor's testimony that these four tasks would take less than five minutes to complete. Mr. Johnson, however, failed to complete any of the tasks in the time frame specified.

Further, Mr. Johnson was absent on March 5 and 6, 2009. Because he had taken sick leave the three previous days, Mr. Johnson was required to submit medical documentation in order to obtain sick leave on March 5 and 6.

Mr. Johnson knew of this medical documentation requirement but testified that he did not have a "regular" doctor and did not want to wait in an emergency room to get such documentation. He opted instead to email Ms. Klajbor requesting annual leave for March 5 and 6. Ms. Klajbor sent a return email to Mr. Johnson informing him that his leave request would only be granted if he provided medical documentation by March 6. Mr. Johnson, however, did not see this return email before he took leave on March 5 and 6 because the email was sent to his work account, which he did not access at home.

The Agency removed Mr. Johnson from his position on May 15, 2009 for (1) failing to follow directives and (2) being AWOL. After Mr. Johnson appealed to the Board and participated in a hearing, an administrative judge affirmed the Agency's decision on both grounds. See Johnson v. Dep't of the Treasury, No. CH0752090691-I-1 (M.S.P.B. Feb. 11, 2010). The Board denied Mr. Johnson's petition for review making the administrative judge's initial decision the final decision of the Board. Mr. Johnson timely appealed.

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II. DISCUSSION

Our scope of review for a decision by the Board is limited. We may only set aside the Board's decision if it was "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c); see Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1381 (Fed. Cir. 2004).

To take an adverse action against an employee, an agency must (1) "establish by preponderant evidence that the charged conduct occurred," (2) "show a nexus between that conduct and the efficiency of the service," and (3) "demonstrate that the penalty imposed was reasonable in light of the relevant factors set forth in Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 307-08 (1981)." Malloy v. U.S. Postal Serv., 578 F.3d 1351, 1356 (Fed. Cir. 2009). Here, the Board found that all three "adverse action" elements were met for both the AWOL charge ...


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