Danielle Piscello-Negron v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIELLE PISCELLO-NEGRON,
Appellant,
v.
DOCKET NUMBER
AT-114M-25-0025-Y-1
DEPARTMENT OF HOMELAND
SECURITY,
Agency.
DATE: October 13, 2026
THIS FINAL ORDER IS NONPRECEDENTIAL1
Damian Deleonardo, Boynton Beach, Florida, for the appellant.
Jonathan Clifford Padilla, Vero Beach, Florida, for the appellant.
Ryan Atkinson, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
James J. Woodruff II, Chairman
Henry J. Kerner, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal based on a charge of off-duty misconduct. Generally, we
grant petitions such as this one only in the following circumstances: 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
1 A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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).

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
Effective September 18, 2024, the agency removed the appellant from her
position as a Lead Transportation Security Officer (TSO) with the Transportation
Security Administration (TSA) at Vero Beach, Florida Municipal Airport based on
a charge of off-duty misconduct. Initial Appeal File (IAF), Tab 7 at 18-27, 33-39.
The agency’s charge contained one specification, which provided as follows: “On
February 22, 2024, you were arrested at Walmart by Officer N.[T.] from the Port
St. Lucie Police Department and charged with Theft by Shoplifting (First Degree
Petit Theft).” Id. at 33. The agency’s notice of proposed removal explained that a
Walmart Loss Prevention employee had observed the appellant “failing to scan and
under scanning items at a self-checkout register yet still placing all of the items in
the grocery bag.”2 Id. at 33-34.
The appellant challenged her removal before the Board and requested a
hearing on the matter. IAF, Tab 1 at 1. Following a hearing on the matter, the
administrative judge issued an initial decision affirming the agency’s removal
2 The record evidence indicated that the appellant failed to scan seven items, totaling
$36.40. IAF, Tab 7 at 178, 183-84.
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action. IAF, Tab 36, Initial Decision (ID) at 2, 12. 3 The appellant has filed a
petition for review of the initial decision, and the agency has filed a response.
Petition for Review (PFR) File, Tabs 1, 3. In her petition, the appellant argues the
following: (1) the administrative judge did not properly consider her physical and
mental condition at the time of the incident; (2) the penalty of removal was
unreasonable under the circumstances and the administrative judge did not
sufficiently consider mitigating factors; (3) the administrative judge improperly
discounted both comparator evidence and the agency’s table of penalties; (4) the
deciding official did not view the video footage of the incident, which amounted to
both a violation of her due process rights and harmful procedural error; and (5) she
has new and material evidence, i.e., she was found not guilty of criminal charges
related to the February 22, 2024 incident. PFR File, Tab 1 at 4-6.
ANALYSIS
The appellant argues that the administrative judge did not properly consider
her physical and mental condition at the time of the incident underlying the
agency’s charge, i.e., the appellant failing to scan items for purchase at a store
self-checkout register on February 22, 2024. PFR File, Tab 1 at 4; IAF, Tab 7
at 19-20, 33-34. She asserts that she had undergone a dental procedure earlier that
day and, as a result, was under the influence of medication. PFR File, Tab 1 at 4.
We find this assertion unavailing. Here, the administrative judge considered the
appellant’s claims regarding the side effects associated with her dental procedure
but found them unpersuasive. ID at 6-7. We discern no basis to disturb her
reasoned findings, which were based, in part, on credibility determinations. Id.;
3 As properly set forth in the initial decision, in accordance with a September 26, 2021
Memorandum of Agreement entered into between the agency and the Board, the
provisions set forth in TSA Management Directive 1100.75-3 and its accompanying
handbook apply to disciplinary actions against TSOs. ID at 1-3; IAF, Tab 7 at 96-100;
see Wilson v. Department of Homeland Security, 122 M.S.P.R. 262, ¶ 3 (2015);
Winlock v. Department of Homeland Security, 110 M.S.P.R. 521, ¶¶ 5-6 (2009), aff’d,
370 F. App’x 119 (Fed. Cir. 2010).
3

see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)
(indicating that 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); see also Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997) (stating that the Board will not disturb an
administrative judge’s findings when she considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility).
The appellant contends that the agency’s penalty was unreasonable and that
the administrative judge did not give sufficient weight to various mitigating
factors. PFR File, Tab 1 at 4-6. When the agency’s charge is sustained, the Board
will review an agency-imposed penalty only to determine if the agency considered
all of the relevant factors and exercised discretion within tolerable limits of
reasonableness. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11 (2010);
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). 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. Ellis, 114 M.S.P.R. 407, ¶ 11;
Douglas, 5 M.S.P.R. at 306. The Board will modify an agency-imposed penalty
only when it finds that the agency did not weigh the relevant factors or the penalty
clearly exceeds the bounds of reasonableness. Ellis, 114 M.S.P.R. 407, ¶ 11;
see Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987) (“It is well
established that the determination of the proper disciplinary action to be taken to
promote the efficiency of the service is a matter peculiarly and necessarily within
the discretion of the agency.”). Here, we find that the administrative judge applied
the proper legal standard. ID at 10-12; see Ellis, 114 M.S.P.R. 407, ¶ 11. Although
the cumulative value of the unscanned items was not particularly high, IAF, Tab 7
at 178, 183-84, the appellant has not presented a basis to disturb the initial
decision. Indeed, as discussed therein, the deciding official considered several
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mitigating factors, including the appellant’s lack of prior discipline and favorable
work performance; however, he explained that the appellant’s conduct was
inconsistent with her position requirements, which mandated a high level of trust
and included the handling of airline passengers’ valuable personal items.
ID at 10-11; IAF, Tab 35-3, Hearing Recording (HR) (testimony of the deciding
official); see Haebe, 288 F.3d at 1301; see also Edwards v. U.S. Postal Service,
116 M.S.P.R. 173, ¶ 14 (2010) (stating that the most important factor in assessing
whether the agency’s chosen penalty is within the tolerable bounds of
reasonableness is the nature and seriousness of the misconduct and its relation to
the employee’s duties, position, and responsibilities). Thus, we discern no basis to
disturb the initial decision.
The appellant argues that the administrative judge improperly discounted
evidence regarding comparator employees. PFR File, Tab 1 at 5. She avers that
other unidentified employees were treated more leniently and that the
administrative judge should have required the agency “to produce comparator
evidence or justify the disparity.”4 Id. Here, the administrative judge
acknowledged the appellant’s argument that she had been subjected to a harsher
penalty than other employees; however, she found that the appellant had not
provided any evidence to support this claim. ID at 11 n.4. She also found that the
deciding official’s testimony that no other agency employees had been disciplined
for off-duty misconduct involving theft within the last 5 years was “undisputed”; in
other words, she found that no potential comparator employees had been identified.
Id.; see Haebe, 288 F.3d at 1301; see also Singh v. U.S. Postal Service, 2022 MSPB
15, ¶ 13 (stating that potential comparators should be limited to employees whose
4 To the extent that the appellant is challenging a discovery ruling made by the
administrative judge, her vague challenge does not compel a different outcome.
PFR File, Tab 1 at 5; IAF, Tab 26 at 1-2; see Tines v. Department of the Air Force,
56 M.S.P.R. 90, 92 (1992) (indicating that the appellant’s failure to timely object to the
administrative judge’s rulings precluded the appellant from doing so on petition for
review).
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misconduct and/or other circumstances closely resemble those of the appellant).
The appellant’s unsupported disagreement with this finding is unavailing. PFR
File, Tab 1 at 5; see Davison v. Department of Veterans Affairs, 115 M.S.P.R. 640,
¶ 9 (2011) (indicating that mere disagreement with an administrative judge’s
explained findings is not a basis to grant a petition for review); see also Tines v.
Department of the Air Force, 56 M.S.P.R. 90, 92 (1992) (indicating that a petition
for review must contain sufficient specificity to enable the Board to ascertain
whether there is a serious evidentiary challenge).
The appellant contends that the administrative judge improperly discounted
the agency’s table of penalties and ignored “internal consistency requirements and
due process rights.” PFR File, Tab 1 at 5. These unclear and unsupported
contentions do not provide a basis to disturb the administrative judge’s finding that
the agency’s table of penalties was merely a guideline and, therefore, the appellant
had not identified a procedural error, much less a harmful one. ID at 9-10; see
Taylor v. Department of Veterans Affairs, 112 M.S.P.R. 423, ¶ 10 (2009)
(explaining that the Board has found that an agency’s table of penalties is only one
factor to be considered in assessing the reasonableness of a penalty and that such a
table is merely a guide unless the agency has a specific statement making the table
mandatory and binding rather than advisory), modified on other grounds by Lewis
v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010); see also Tines,
56 M.S.P.R. at 92. In any event, even assuming that the agency misinterpreted or
misused the table, the appellant has not shown that any such error was likely to
have caused the agency to reach a different conclusion regarding the penalty;
indeed, the deciding official provided persuasive testimony that, given the nature
of the charge and the appellant’s job duties, neither a demotion nor a suspension
would have been appropriate because the appellant still would have had access to
personal property. HR (testimony of the deciding official); see Pumphrey v.
Department of Defense, 122 M.S.P.R. 186, ¶ 10 (2015). Thus, a different outcome
is not warranted.
6

The appellant, citing Stone v. Federal Deposit Insurance Corporation,
179 F.3d 1368 (Fed. Cir. 1999), asserts that the deciding official violated her due
process rights by not reviewing video footage of the February 22, 2024 incident
prior to effecting her removal. PFR File, Tab 1 at 5. She relatedly asserts that the
deciding official’s “failure to review [this] primary, direct evidence” constituted
harmful procedural error. Id. We find these assertions unpersuasive. Here, the
administrative judge issued an order summarizing the parties’ prehearing
conference. IAF, Tab 33 at 1-9. In this order, she identified the sole affirmative
defense at issue as whether the agency committed harmful procedural error by not
following the table of penalties. Id. at 5-6. Neither the appellant nor her
non-attorney representatives discernably objected to this order despite being
provided an opportunity to do so.5 Id. at 9. Thus, to the extent that the appellant
raises additional affirmative defenses on review, we decline to consider the same.
See Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18 (setting forth a list of
nonexhaustive factors for consideration in determining whether an appellant will
be deemed to have waived an affirmative defense). In any event, even if we were to
consider these claims, a different outcome would not be warranted because the
appellant’s assertions, including her reference to Stone, are unclear. PFR File,
Tab 1 at 5; see Stone, 179 F.3d at 1376-77 (explaining that a deciding official
violates an employee’s due process rights when the official relies on new and
material ex parte information as a basis for decisions regarding the merits of a
proposed charge or the penalty to be imposed); see also Keefer v. Department of
Agriculture, 92 M.S.P.R. 476, ¶ 18 n. 2 (2002) (indicating that the Board is not
obligated to search a voluminous record to make sense of vague allegations). To
this end, regarding her harmful procedural error claim, the appellant does not
allege, much less show, how any purported agency error regarding the video
5 The appellant’s representative generally referenced due process prior to the start of the
hearing. IAF, Tab 35-1, Hearing Recording (prehearing statements). To the extent that
the appellant is arguing that this reference amounted to an objection to the administrative
judge’s order, we are unpersuaded. IAF, Tab 33 at 6, 9.
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footage of the incident was likely to have caused the agency to reach a conclusion
different from the one it would have otherwise reached; thus, she has not
demonstrated any prejudice to her substantive rights. 6 PFR File, Tab 1 at 5; see
Pumphrey, 122 M.S.P.R. 186, ¶ 10; see also Tines, 56 M.S.P.R. at 92.
The appellant asserts that she has new and material evidence; specifically,
she avers that, “[f]ollowing the issuance” of the initial decision, she was tried and
found not guilty in a criminal case related to the February 22, 2024 incident. PFR
File, Tab 1 at 5. However, this evidence is not new; a document regarding the
appellant’s February 26, 2025 acquittal was included in the record before the
administrative judge and discussed during the parties’ prehearing conference. IAF,
Tab 32 at 4, Tab 33 at 8; see Meier v. Department of the Interior, 3 M.S.P.R. 247,
256 (1980) (indicating that evidence that is already part of the record is not new). 7
Moreover, this evidence is not material to the outcome of this appeal. Criminal
actions and administrative actions employ different standards of proof; the former
is based on proof beyond a reasonable doubt, whereas the latter applies a lower
standard of proof, such as preponderant or substantial evidence. See, e.g.,
Rodriguez-Ortiz v. Department of the Army, 46 M.S.P.R. 546, 548 (1991)
(explaining that a criminal acquittal is not binding in a civil action due to the
differing standards of proof). When the charged misconduct in an administrative
action concerns the underlying conduct and not the fact of a conviction, as here, the
charge may be sustained notwithstanding a criminal acquittal. See Larry v.
6 The record before the administrative judge contained video recordings of the
February 22, 2024 incident underlying the agency’s charge, including a video of the
appellant scanning items at the check-out register. IAF, Tab 13-6 (Video 3).
The administrative judge reasoned that this video evidence supported the agency’s
version of events. ID at 5-7.
7 To the extent that the appellant is arguing that the administrative judge did not discuss
this document in the initial decision, a different outcome is not warranted.
An administrative judge’s failure to mention all of the evidence of record does not mean
that she did not consider it in reaching her decision. Marques v. Department of Health
and Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table). In any event, as discussed herein, this evidence is not material.
8

Department of Justice, 76 M.S.P.R. 348, 355 (1997). Thus, the appellant’s
assertion is unpersuasive.
We have considered all the appellant’s remaining assertions but find that
they do not warrant a different outcome. Accordingly, we affirm the initial
decision.
NOTICE OF APPEAL RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such review
and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we
offer the following summary of available appeal rights, the Merit Systems
Protection Board does not provide legal advice on which option is most appropriate
for your situation and the rights described below do not represent a statement of
how courts will rule regarding which cases fall within their jurisdiction. If you
wish to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
8 Since the issuance of the initial decision in this matter, the Board may have updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.
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within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination.
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court (not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If
you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
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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.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives this
decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals
of competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510.
12

Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
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