Roberta A. Lee v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERTA A. LEE,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2024-2096
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-18-0161-I-1.
______________________
Decided: January 17, 2025
______________________
ROBERTA A. L EE , Leavenworth, KS, pro se.
ANNE D ELMARE , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, T ARA K. HOGAN, P ATRICIA M. M C CARTHY .
______________________
Before REYNA, CUNNINGHAM , and STARK, Circuit Judges.
P ER CURIAM .
Case: 24-2096 Document: 23 Page: 1 Filed: 01/17/2025

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LEE v. ARMY 2
Roberta A. Lee appeals pro se a final decision of the
Merit Systems Protection Board, which affirmed the
agency’s charge of insubordination and penalty of removal.
Ms. Lee had 60 days from the date of the Board’s decision,
or the Board’s notice of the final order, to file a petition of
review to this court. 5 U.S.C. § 7703(b)(1). The Supreme
Court recently decided that this 60-day filing deadline is
non-jurisdictional. Harrow v. Dep’t of Def., 601 U.S. 480,
489–90 (2024). The Court, however, declined to decide
whether the 60-day filing deadline is subject to equitable
tolling. Id.
The government argues that we must dismiss Ms. Lee’s
appeal because she filed it six days past the 60-day dead-
line. Respondent’s Br. 7–8. The government also argues
the 60-day filing deadline is not subject to equitable tolling
and that, in any event, Ms. Lee would not be entitled to eq-
uitable tolling. Id. We do not reach these issues because
we find that the Board did not err on the merits. Accord-
ingly, for the reasons explained below, we affirm the
Board’s final decision.
BACKGROUND
At the time of her removal, Ms. Lee served as a Super-
visory Visual Information Specialist, GS-1084-11, in the
Visual Information Branch’s Directorate of Plans, Train-
ing, Mobilization and Security, within the Department of
the Army, at Fort Riley, Kansas. SAppx6.1 The relevant
facts for this appeal surround Ms. Lee’s failure to attend a
December 5, 2017 meeting with her supervisor, Ms. Randi
Hamden. Id.
On the morning of December 5, 2017, Ms. Hamden sent
an email to Ms. Lee directing Ms. Lee to meet with her that
day. SAppx7. Shortly thereafter, agency counsel and Ms.
1 “SAppx” refers to the supplemental appendix ac-
companying the government’s informal response brief.
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LEE v. ARMY 3
Lee’s Equal Employment Opportunity (“EEO”) representa-
tive, Ms. Janice Jackson, became involved in the email ex-
changes between Ms. Hamden and Ms. Lee. Appx11–14.2
Ms. Jackson was Ms. Lee’s representative in a pending dis-
crimination complaint against a separate supervisor at the
agency. Appx7–8.
Ms. Lee requested to know the purpose of this meeting.
SAppx7; Appx12. Ms. Lee also noted in a separate email
that Ms. Jackson “will [need to] be present.” Appx13. The
agency clarified that “this meeting is unrelated to Ms. Lee’s
pending EEO complaint,” that Ms. Jackson could not at-
tend the meeting, and that “[m]anagement expects to meet
with Ms. Lee at Building 319 at 1300 [i.e., 1 pm] this after-
noon.” Id.
Ms. Lee did not attend the meeting at 1 pm on Decem-
ber 5, 2017. SAppx7; Appx15. Later that afternoon, the
agency placed Ms. Lee on administrative leave. SAppx9.
On December 19, 2017, the agency issued a notice of
proposed removal for the charge of insubordination, and in
the alternative, a charge of conduct unbecoming of a fed-
eral employee. SAppx6. Ms. Lee responded to this notice.
SAppx1.
On January 18, 2018, the agency issued a notice of de-
cision of the proposed removal, which sustained both
charges. SAppx2. The agency supported its removal de-
termination by analyzing the relevant factors discussed in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–
06 (1981), i.e., the “Douglas factors.” SAppx3–4. Ms. Lee’s
2 As used herein, “Appx” refers to the appendix ac-
companying Ms. Lee’s Informal Brief, which is docketed at
ECF No. 4, and the cited pages correspond to the page num-
bering as docketed at ECF No. 4.
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LEE v. ARMY 4
removal from service became effective on January 20, 2018.
SAppx4.
Ms. Lee appealed the agency’s removal action to the
Merit Systems Protection Board (“MSPB” or the “Board”).
The administrative judge (“AJ”) assigned to Ms. Lee’s ap-
peal issued an initial decision, which affirmed the agency’s
charge of insubordination and penalty of removal.3
As to the insubordination charge determination, the AJ
determined that Ms. Lee was insubordinate by failing to
attend the December 5, 2017 meeting. The AJ rejected Ms.
Lee’s argument that she could not have been insubordinate
because she received no direct order to attend the meeting.
Appx10. The AJ found that the agency clearly instructed
Ms. Lee to attend the December 5, 2017 meeting and that
Ms. Lee and Ms. Jackson never expressed confusion about
that instruction. Appx14. The AJ based these findings on
hearing testimony and the December 5, 2017 email chain
between Ms. Lee, Ms. Jackson, Ms. Hamden, and agency
counsel.4
The AJ also found that the agency’s order to attend the
December 5, 2017 meeting was lawful, despite Ms. Lee’s
objection to attending the meeting without her EEO repre-
sentative present. Appx16. The AJ found that the agency
made clear that the meeting did not involve Ms. Lee’s dis-
crimination complaint but, rather, was work related, and
3 The AJ did not address the agency’s alternative
finding of conduct unbecoming of a federal employee.
Appx7 n.1. The AJ explained that because he sustained
the charge of insubordination and the penalty of removal,
addressing the unbecoming charge conduct would not
change the result in the case. Id.
4 The parties presented testimony before the AJ on
October 30 and 31, 2018. SAppx14–17.
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LEE v. ARMY 5
thus, Ms. Lee was not entitled to have her EEO representa-
tive present at the meeting. Id.
The AJ then determined that the penalty of removal
was appropriate. Appx22–23. The AJ reviewed the
agency’s consideration of the relevant Douglas factors and
agreed with the agency’s assessment that the penalty of re-
moval was reasonable given Ms. Lee’s conduct. Id. The AJ
agreed with the agency that Ms. Lee’s intentional failure
to attend the meeting was serious misconduct, even if the
failure to attend the meeting was a single event. Appx22.
The AJ also agreed with the agency that this was especially
true given Ms. Lee’s role as supervisor. Id. (noting that
supervisors are held to a higher standard of conduct when
analyzing the appropriate penalty). The AJ then agreed
with the agency that Ms. Lee’s December 5th email re-
sponses and written response indicated Ms. Lee’s lack of
rehabilitative potential and loss of needed supervisory con-
fidence. Appx23.
Ms. Lee filed a petition for review of the AJ’s initial de-
cision before the full Board, which denied her petition and
affirmed the AJ’s initial decision. Appx34–36. The Board
also modified the AJ’s initial decision in one limited re-
spect. Appx35. The Board addressed one of Ms. Lee’s due
process arguments that the AJ did not specifically address,
i.e., that the agency violated her due process rights by con-
sidering certain adverse penalty factors without affording
her prior notice and an opportunity to respond. Id. The
Board determined that there was no due process violation
and that Ms. Lee had notice and opportunity to respond to
the evidence presented by the agency. Appx35–36.
Ms. Lee filed a petition for review of the Board’s final
decision. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
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LEE v. ARMY 6
D ISCUSSION
We must affirm the Board’s decision unless we find
that it is “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Higgins v. Dep’t of Veterans Affs.,
955 F.3d 1347, 1353 (Fed. Cir. 2020) (internal quotation
marks and citation omitted).
Ms. Lee raises four arguments on appeal. We address
them in turn.
First, Ms. Lee argues that both the AJ and the Board
overlooked points she raised before them. Petitioner’s In-
formal Br. 2. Ms. Lee specifically argues that the AJ “over-
looked [her] entire closing brief,” and that the Board
overlooked “the Judge’s abuse of authority” and Ms. Lee’s
“due process rights.” Id. We reject Ms. Lee’s argument as
vague and unsupported. Ms. Lee fails to specifically iden-
tify any evidence demonstrating that the Board’s corre-
sponding decision was arbitrary, capricious, an abuse of
discretion, otherwise contrary to law, or unsupported by
substantial evidence.
Second, Ms. Lee argues that “[t]he Agency did not
prove that an order was given” for Ms. Lee to attend the
December 5, 2017 meeting, and, thus Ms. Lee was not in-
subordinate by failing to attend the meeting. Petitioner’s
Informal Br. 2. The record, however, shows otherwise.
Based on substantial evidence, including hearing testi-
mony and a lengthy email exchange between Ms. Lee, Ms.
Jackson, Ms. Hamden, and agency counsel, the AJ found
that the agency gave a clear order to Ms. Lee to attend the
December 5, 2017 meeting. Appx10–16. For this reason,
we see no error in the AJ’s determination, and the Board’s
affirmance, that Ms. Lee was insubordinate.
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LEE v. ARMY 7
Third, Ms. Lee argues that the penalty of removal was
unwarranted because the agency failed to seek an alterna-
tive penalty. Petitioner’s Informal Br. 2. We disagree. The
agency has no requirement to seek an alternative penalty
before settling on the penalty of removal. Rather, the
agency must assess a penalty that is reasonable in relation
to the misconduct at issue. U.S. Postal Serv. v. Gregory,
534 U.S. 1, 5 (2001). The agency assesses the reasonable-
ness of the penalty by considering and weighing the vari-
ous Douglas factors. Here, the agency determined, based
on the Douglas factors, that the penalty of removal was
reasonable. SAppx3–4. The AJ agreed with the agency,
having reviewed the agency’s assessment of the Douglas
factors. Appx22–23. The Board affirmed. Appx34–35. We
see no error in these analyses.
Finally, Ms. Lee argues that the agency failed to prove
the charge of insubordination. Petitioner’s Informal Br. 2.
We do not agree. Insubordination is the “willful and inten-
tional refusal to obey an authorized order of a superior of-
ficer which the officer is entitled to have obeyed.” Mazares
v. Dep’t of Navy, 302 F.3d 1382, 1385 (Fed. Cir. 2002) (quot-
ing Bieber v. Dep’t of Army, 287 F.3d 1358, 1364 (Fed. Cir.
2002)). Based on substantial evidence, the AJ found that
Ms. Lee acted insubordinately. Appx16–18. Specifically,
the AJ determined that the agency gave Ms. Lee a lawful
order to attend the December 5, 2017 meeting, that Ms. Lee
disobeyed the order, and that her disobedience was willful
and intentional. Id. We see no error in the AJ’s finding of
insubordination.
CONCLUSION
We have considered Ms. Lee’s remaining arguments
and find them unpersuasive. Accordingly, we affirm the
Board’s final decision.
AFFIRMED
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LEE v. ARMY 8
COSTS
No costs.
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