Lilibeth Michelson v. Department of the Army

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

LILIBETH MICHELSON,
Petitioner

v.

DEPARTMENT OF THE ARMY,
Respondent
______________________

2019-1811
______________________

Petition for review of the Merit Systems Protection
Board in No. AT-0752-18-0424-I-1.
______________________

Decided: May 11, 2020
______________________

J
ACK BRADLEY JARRETT, III, Alan Lescht and Associ-
ates, PC, Washington, DC, for petitioner.

ISAAC B. ROSENBERG, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by J
OSEPH H.
HUNT, REGINALD THOMAS BLADES, JR., ROBERT EDWARD
KIRSCHMAN, JR.
______________________

Case: 19-1811 Document: 37 Page: 1 Filed: 05/11/2020

MICHELSON v. ARMY
2
Before CHEN, LINN, and STOLL, Circuit Judges.
PER CURIAM.
Lilibeth Michelson (“Michelson”), a former Supply
Technician at the Reserve Officer Training Corps in Day-
tona Beach, Florida, appeals from the final decision of the
Merit Systems Protection Board (“Board”), stemming from
the Initial Decision of the Administrative Judge (“AJ”), af-
firming her removal from Federal Service based on three
charges: (1) absent without leave (“AWOL”) from January
9, 2018 through January 19, 2018; (2) failure to follow di-
rections on January 29, 2018; and (3) creating a disturb-
ance on January 29, 2018. Michelson v. Dep’t of the Army,
No. AT-0752-18-0424-I-1 (Dec. 21, 2018) (“Initial Deci-
sion”). Because the AJ’s Initial Decision was in accordance
with law and supported by substantial evidence, we affirm.
Petitioner has the burden to show that the agency ac-
tion is “(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).

With regard to the first charge, Michelson argues that
the AJ erred by not accepting an October 25, 2018 letter
from nurse practitioner Anthony Lagana as administra-
tively acceptable evidence of Michelson’s anxiety and de-
pression during the AWOL period. Substantial evidence
supports the AJ’s finding that Lagana’s October 25, 2018
letter was not administratively acceptable.
1
As the AJ cor-
rectly found, several problems undermine the force of that
letter. Most fundamentally, the letter does not go into de-
tail about the relationship between Michelson’s anxiety

1
Because the letter was found not to be administra-
tively acceptable, we need not address whether the letter,
dated after Michelson’s removal, was properly considered.
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MICHELSON v. ARMY
3
and depression and her inability to perform her work. Ra-
ther, the letter was conclusory in its key statements that
“Ms. Michelson needed to be off work until 1/19/18 for med-
ical purposes due to her anxiety and depression,” and was
“medically incapacitated and unable to attend work.” J.A.
42. See Young v. U.S. Postal Serv., 79 M.S.P.R. 25, 33
(1998) (rejecting, due to a “lack of detail as to the medical
condition, the diagnosis and prognosis,” a letter stating
that “the appellant was unable to work” because “she was
‘overwhelmed and depressed’”). Moreover, the letter’s con-
clusions were based on Michelson’s appointment with
nurse practitioner Kayla Ritzel on December 13, 2017, a
visit that was scheduled as a follow-up visit for a sore
throat. According to the contemporaneous progress notes
of that appointment, anxiety was discussed, but there is no
indication that Michelson would be imminently unable to
perform her work duties. Indeed, the notes show that,
while Michelson requested a month off “to help her anxiety,
depression and get her started on her new meds,” J.A. 76,
Ritzel made no determination that this was a medical ne-
cessity.
Moreover, as detailed in the Agency’s removal letter,
Michelson had thrice sought and been denied various types
of leave for much of the time period for which she was
AWOL: once as annual leave (January 8 through 19), once
to take care of her ill father (January 8 through 16), and
once based on a December 15, 2017 letter from Ritzel (De-
cember 18 through January 19).
Additionally, Michelson argues that the AJ refused to
consider Lagana’s letter of October 25 because it was sub-
mitted after the AJ’s determination, and that this was er-
ror. See Initial Decision at 14 (“Further, the appellant
failed to provide this information to the agency in a timely
manner even in response to the notice of proposed removal.
Thus, the agency’s AWOL decision remains appropriate”
(citing Atchley v. Dept’ of the Army, 46 M.S.P.R. 297, 301
(1990))). However, the AJ did, in fact, consider that letter,
Case: 19-1811 Document: 37 Page: 3 Filed: 05/11/2020

MICHELSON v. ARMY
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and found it to be not administratively acceptable for sub-
stantive reasons. Id. at 13–14 (“[E]ven if [Lagana’s letter]
had been timely submitted, this note does not comply with
the leave restriction letter because it is conclusory and fails
to explain the appellant’s incapacitation.”).
Charges 2 and 3 address Michelson’s actions on Janu-
ary 29, 2018, the first day of her suspension.
2
With respect
to charge 2—failure to follow directions by going to work on
January 29, 2018—Michelson argues that the letter sus-
pending her was ambiguous as to whether her suspension
began upon receipt of the standard form 50 or on a date
certain. The letter stated: “[Y]ou will be suspended from
duty without pay for seven (7) calendar days beginning
Monday, 29 January 2018 through Sunday, 4 February
2018,” and “A Standard Form 50, Notification of Personnel
Action, documenting your suspension will be forwarded
separately.” J.A. 93.
As the AJ correctly found, Michelson’s suspension un-
ambiguously began on January 29, and was not contingent
on the receipt of Standard Form 50. Initial Decision at 15
(“COL Kraft’s letter is unambiguous that the appellant was
to be suspended on January 29, 2018. While it does state
that an SF-50 will be issued, it does not indicate that the
suspension will be held in abeyance until CPAC issues the
SF-50.”). “The appellant does not dispute that she came to
work on January 25, 2018.” Id. Substantial evidence sup-
ports the AJ’s determination that Michelson failed to follow
the unambiguous instruction not to be at work on January
29.
Michelson exacerbated that failure by remaining on
campus at the computer lab after she was explicitly told to
“leave the premises because she was officially suspended.”

2
The suspension was independent of the AWOL
dates in charge 1.
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MICHELSON v. ARMY
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Id. at 16. The AJ was within her discretion to credit the
contemporaneous statement by CPT Karlewicz about the
interaction and to discount Michelson’s assertion that she
did not understand that “premises” referred to the whole
campus and not just the supply room. Substantial evidence
thus supports the AJ’s determination as to charge 2.
Charge 3—creating a disturbance by failing to leave
the premises—is also supported by substantial evidence.
Michelson argues that she was not violent and did not
curse or resist when found in the computer lab, and there-
fore was not creating a disturbance. However, Michelson’s
failure to leave after her confrontation with Karlewicz ne-
cessitated an “unnecessary[ily] disrupti[ve]” search of “the
work place,” J.A. 82, and an escort to ensure Michelson left
the premises. The determination of whether that “re-
sult[ed] in an adverse effect on morale, production, or
maintenance of proper discipline,” AR 690-700, Chapter
751, was within the Agency’s discretion.
Finally, we reject Michelson’s challenge to the Agency’s
choice to remove Michelson from her position. Michelson
failed to establish that the AJ erred in sustaining any of
the Agency’s three charges. Moreover, as the AJ correctly
observed, the Agency considered and balanced all of the rel-
evant factors set forth in Douglas v. Department of Veter-
ans Affairs, 5 M.S.P.R. 289, 305–06 (1981), including
Michelson’s length of service with the Agency, in selecting
the penalty of removal. Initial Decision at 23–24. We agree
with the AJ that the Agency’s penalty did not “clearly ex-
ceed[] the bounds of reasonableness.” Parker v. U.S. Postal
Serv., 111 M.S.P.R. 510, 514 (2009), aff’d, 355 F. App’x 410
(Fed. Cir. 2009).
* * *
For all the above reasons, we hold that the Board’s de-
cision was in accordance with law and supported by sub-
stantial evidence.
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MICHELSON v. ARMY
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AFFIRMED
COSTS
No costs.
Case: 19-1811 Document: 37 Page: 6 Filed: 05/11/2020