Stephanie Russell v. Department of the Air Force

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEPHANIE RUSSELL,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2024-1988
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-21-0524-I-1.
______________________
Decided: February 6, 2025
______________________
STEPHANIE R USSELL , Crestview, FL, pro se.
J OSHUA D AVID T ULLY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ELIZABETH MARIE H OSFORD, P ATRICIA M.
MCCARTHY .
______________________
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RUSSELL v. AIR FORCE 2
Before L OURIE and H UGHES , Circuit Judges, and
G ILSTRAP , Chief District Judge1
P ER CURIAM .
Stephanie Russell appeals the Merit Systems Protec-
tion Board’s final order, which sustained Ms. Russell’s re-
moval from her position at Eglin Air Force Base. Because
the Merit Systems Protection Board’s decision was in ac-
cordance with the law and supported by substantial evi-
dence, we affirm.
I
Ms. Russell was a Logistics Management Specialist at
Eglin Air Force Base in Florida. SAppx. 22.2 In March
2020, shortly after the COVID-19 pandemic began,
Ms. Russell asked her local union president if she was eli-
gible for telework. The union president relayed this inquiry
to Ms. Russell’s immediate supervisor, Janice McGovern,
who in turn relayed the request to a human resources ad-
visor. The HR advisor recommended denying the telework
request because, under Department of Defense policies,
Ms. Russell had “various disqualifying circumstances in
[her] work history[,] . . . including: (1) [Ms. Russell’s] prior
[Absence without Leave] [(]AWOL[)]-based suspensions,
(2) current management attendance concerns requiring
closer supervision, and (3) security issues/network access
1 Honorable Rodney Gilstrap, Chief Judge, United
States District Court for the Eastern District of Texas, sit-
ting by designation.
2 “SAppx.” refers to the supplemental appendix submit-
ted in connection with the Respondent’s informal brief.
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RUSSELL v. AIR FORCE 3
that could influence her ability to telework.”3 SAppx. 26–
27.
The union president then requested that Ms. McGov-
ern allow Ms. Russell to use paid Weather and Safety
Leave (WSL). At that time, the agency had issued a “liberal
policy granting flexibility to supervisors to approve WSL
leave for employees who self-identified as being high-risk
from COVID” based on risk factors, such as being age 65 or
above or having a chronic health condition like “high blood
pressure, heart disease, diabetes, lung disease, and
asthma.” SAppx. 27–28. Ms. Russell self-identified as be-
ing high risk from COVID-19 and requested WSL.
Ms. McGovern initially refused to accept the request be-
cause Ms. Russell refused to provide a contact phone num-
ber, did not accept a government phone, and did not have
access to government email because her network access
had been suspended. Ms. Russell then provided a phone
number, and Ms. McGovern granted Ms. Russell’s WSL re-
quest on March 20, 2020. The approval letter indicated
that Ms. Russell was being placed on WSL for 60 days, but
that the approval “may be revoked at any time.” SAppx. 28.
In April 2020, the Department of the Air Force began
requiring that individuals on WSL provide a self-certifica-
tion form and a verification of medical risk factors form,
which must be filled out by a medical care provider. The
verification of medical risk factors form was due within 30
days of the self-certification form. Ms. Russell expressed
doubts about whether she could get an appointment with
her care provider, and Ms. McGovern granted a 30-day ex-
tension. Ms. McGovern subsequently authorized two more
30-day extensions, extending the deadline to August 19.
3 At the time Ms. Russell’s telework eligibility was re-
viewed, her security clearance and her agency computer
network access were suspended. SAppx. 27.
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RUSSELL v. AIR FORCE 4
Throughout April and May, Ms. McGovern called
Ms. Russell at least weekly to check on the status of the
forms, but Ms. Russell never answered the phone and
would take a day or two to return the calls. Ms. Russell
stopped returning calls entirely in August despite
Ms. McGovern’s directives that Ms. Russell needed to an-
swer calls directly and promptly return missed calls.
Ms. McGovern consulted HR and then sent Ms. Russell a
letter on October 9, 2020, directing Ms. Russell to either re-
turn the forms by October 19 or report for duty on Octo-
ber 20. The letter also stated that “all previously approved
WSL would be converted to chargeable leave if [Ms. Rus-
sell] failed to provide the requested forms, and that she
would be charged AWOL for any duty day after October 19
that she did not provide the required forms.” SAppx. 32–
33. Ms. McGovern received confirmation that the letter
was delivered to the address she had on file for Ms. Russell,
and Ms. McGovern left Ms. Russell several voicemails tell-
ing Ms. Russell that she had been mailed an “important
packet with an October 19 deadline.” SAppx. 33. Ms. Rus-
sell did not return the forms, nor did she report for duty on
October 20.
Ms. Russell called Ms. McGovern on October 21 and
said that she did not use that mailing address and refused
to provide an updated mailing address, personal email, or
any other way for Ms. McGovern to resend the letter.
Ms. Russell also refused to let Ms. McGovern read her the
letter over the phone. Ms. Russell then told Ms. McGovern
that she wanted to use her annual leave, and Ms. McGov-
ern denied the request. Ms. Russell did not report for duty,
and Ms. McGovern continued to leave voicemails for
Ms. Russell, which were not returned.
In early November, Ms. Russell provided the forms but
sent them to the Office of Special Counsel instead of
Ms. McGovern. Ms. McGovern called Ms. Russell and left a
voicemail saying that she had not received the forms, and
that Ms. Russell would remain in AWOL status until
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RUSSELL v. AIR FORCE 5
Ms. McGovern received the forms. Ms. McGovern received
the documents around November 30, and Ms. Russell was
placed on WSL again.
On April 19, 2021, Ms. McGovern issued a Notice of
Proposed Removal to Ms. Russell based on two charges:
(1) Failure to follow Instructions with three specifications,
and (2) AWOL. SAppx. 23. The three specifications for the
failure to follow instructions charge were: (1) Ms. Russell’s
refusal to submit the WSL forms to Ms. McGovern,
(2) Ms. Russell’s failure to provide valid contact infor-
mation where she could be reached while on WSL, and
(3) Ms. Russell’s failure to report to duty on October 20 or
provide WSL forms on that date. SAppx. 23.The deciding
official “sustained the charges and the penalty of removal.”
SAppx. 23.
After a two-day hearing, the Board sustained the re-
moval. The Board sustained the first two specifications of
the failure to follow instructions charge but did not sustain
the third specification because the agency did not prove
that Ms. Russell had actually received the instructions in
the October 9 letter before the October 20 deadline. But be-
cause the agency proved two out of three of its specifica-
tions, the Board sustained the charge. The Board also
sustained the AWOL charge.4 The Board determined that
the penalty determination was “within the parameters of
reasonableness” and sustained the removal. SAppx. 44–45.
4 The Board did not sustain the AWOL charge for Octo-
ber 20 or 21 because the agency did not prove that Ms. Rus-
sell had received the October 9 letter but sustained the
charge as of October 22 because Ms. McGovern told
Ms. Russell during the October 21 phone call that the
agency revoked Ms. Russell’s WSL authorization and
Ms. Russell would have to return to work until Ms. McGov-
ern received the necessary forms. SAppx. 41
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RUSSELL v. AIR FORCE 6
The Board also considered and rejected Ms. Russell’s
affirmative defenses. Ms. Russell first contended that the
agency unreasonably delayed issuing the Notice of Pro-
posed Removal beyond the 45-day goal set forth in the mas-
ter labor agreement, but the Board concluded that the
language in the agreement was aspirational and not man-
datory, and that Ms. Russell “did not prove by a preponder-
ance of the evidence that a more expeditious process or
earlier notice of the proposed discipline would likely have
produced any different outcome.” SAppx. 45–46. Ms. Rus-
sell’s second affirmative defense was a claim for whistle-
blower reprisal. The Board determined that an OSC
complaint Ms. Russell had filed was a contributing factor
because it was filed less than two years before her removal
and the deciding official was aware of the claim. The Board
considered the factors from Carr v. Social Security Admin-
istration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), and deter-
mined that while the agency had strong reasons for the
personnel action, there was no basis to infer a retaliatory
motive because the deciding official knew only of the exist-
ence of the complaint and not the contents, and there was
an absence of comparators. The full Board affirmed the in-
itial decision.5
5 The full Board clarified the initial decision’s discussion
of Carr factors two, the existence and strength of any retal-
iatory motive, and three, any evidence that the agency
takes similar actions against employees who do not engage
in protected activity. SAppx. 10–11. As to factor two, the
Board concluded that the administrative judge erred by
failing to consider a professional motive instead of just a
personal one, but that review of the record did not reveal a
professional motive. SAppx. 12–14. As to factor three, the
Board concluded that the administrative judge erred in im-
plying that it was Ms. Russell’s burden to produce
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RUSSELL v. AIR FORCE 7
Ms. Russell appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
II
We must affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c); see also Perlick v. Dep’t of Veterans Affs.,
104 F.4th 1326, 1329 (Fed. Cir. 2024).
III
Ms. Russell contends that the Board erred in several
respects. We address each argument in turn.
First, Ms. Russell argues that she was not instructed
to provide the WSL documents directly to Ms. McGovern.
But to the Board, Ms. Russell “conced[ed] that she was di-
rected many times to provide such documentation to
Ms. McGovern.” SAppx. 37. We may not consider the argu-
ment that Ms. Russell was not instructed to provide the
forms for the first time on appeal. See Kachanis v. Dep’t of
Treasury, 212 F.3d 1289, 1293 (Fed. Cir. 2000) (“This court
has long held that appellants may not raise issues on ap-
peal for the first time.”).
Second, Ms. Russell argues that she provided a valid
address and phone number. We conclude that substantial
evidence supports the Board’s finding that Ms. Russell
failed to follow instructions to provide valid contact infor-
mation. SAppx. 39. The Board found that Ms. Russell re-
fused to provide Ms. McGovern with her street address,
personal email address, or any other means for the agency
comparators, but because the administrative judge con-
cluded the factor was neutral, there was no need to disturb
the administrative judge’s finding. SAppx. 14.
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RUSSELL v. AIR FORCE 8
to send the October 9 letter. Ms. Russell also told the Board
that she did not check the address she had originally pro-
vided to Ms. McGovern and that she did not answer her
phone during business hours. SAppx. 39. The Board con-
cluded that “valid” contact information “must establish a
reliable means of actual communication between the su-
pervisor and employee,” and substantial evidence supports
the conclusion that the contact information Ms. Russell
provided did not meet this standard. SAppx. 39.
Third, Ms. Russell disputes the Board’s finding that
the deciding official did not have a retaliatory motive.
Ms. Russell’s argument here essentially amounts to a dis-
agreement with the administrative judge’s credibility de-
termination, which is “virtually unreviewable” on appeal.
Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir.
1986). The Board thoroughly analyzed whether there had
been any retaliation and found “no evidence of a retaliatory
motive.” SAppx. 13. Ms. Russell argues that Ms. McGovern
improperly influenced the deciding official and that the de-
ciding official knew more about the OSC complaint than he
testified to, but the Board’s factual findings contradict
these assertions.
Finally, Ms. Russell makes several arguments that
rely solely on the hearing testimony.6 These challenges are
primarily directed towards Ms. McGovern’s testimony and
allege that Ms. McGovern was disingenuous. Petitioner’s
6 We recognize that under Rule 10(b)(2) of the Federal
Rules of Appellate Procedure, an appellant must furnish a
transcript of all relevant evidence, and we have previously
held that appellants must furnish a written transcript or
risk forfeiture of arguments relying solely on hearing testi-
mony. See Gonzales v. Def. Logistics Agency, 772 F.2d 887,
890–91 (Fed. Cir. 1985). Nonetheless, in this case, we exer-
cise our discretion to consider the substance of Ms. Rus-
sell’s arguments.
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RUSSELL v. AIR FORCE 9
Informal Br. 23–27. As previously discussed, an adminis-
trative judge’s credibility determinations are virtually un-
reviewable on appeal, and Ms. Russell has not met the high
burden required to disturb these determinations. Hanratty
v. Dep’t of Transp., 819 F.2d 286 (Fed. Cir. 1987) (discuss-
ing that the petitioner needs to establish that the testi-
mony must be “‘inherently improbable or discredited by
undisputed evidence or physical fact’” to undermine a cred-
ibility determination) (quoting Hagmeyer v. Dep’t of the
Treasury, 757 F.2d 1281, 1284 (Fed Cir.1985)). Addition-
ally, we have reviewed the cited testimony and determined
that Ms. McGovern’s testimony is supported by substantial
evidence.
V
We have considered Ms. Russell’s remaining argu-
ments and find them unpersuasive. For the reasons above,
we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
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