Deirdre B. Garner v. Department of the Treasury

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3011
DEIRDRE B. GARNER,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
______________________________
DECIDED: March 8, 2005
______________________________
Before MAYER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and CLEVENGER,
Circuit Judge.
PER CURIAM.
The petitioner, Deirdre B. Garner, seeks review of the final decision of the Merit
Systems Protection Board (“Board”) that sustained the Treasury Department (the
“Agency”)’s removal of Garner for misusing travel funds and failing timely to pay an
outstanding travel account balance. Garner v. Dep’t of the Treasury, No. AT-0752-03-
0064-I-1 (M.S.P.B. Sept. 27, 2004) (“Board Op.”) (reversing in part initial decision of
Feb. 25, 2003 (“Initial Decision”)). We affirm.

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I
The record sets forth the following basic facts, which Garner does not dispute.
Garner was a Mail and File Clerk Supervisor with the Internal Revenue Service (IRS).
Board Op. at 1. At the time of her removal in October 2002, she had been a supervisor
for approximately two years, had more than eighteen years of service with the Agency,
and had received several performance awards. Initial Decision at 6. She had also been
previously disciplined with a one-day suspension for misuse of a government credit card
and failure to timely pay travel charges. Board Op. at 2.
Garner was scheduled for official travel from August 7 through August 10, 2001.
On August 7, she signed a request for an approved travel advance of $470. The
request form showed that she owed the agency $2,400 from previous advances. The
disbursing employee apparently misread the form and mistakenly gave Garner $2,400,
an amount $1,930 in excess of the approved $470. Garner took the $2,400 and left on
her trip the same day without attempting to return the excess or notify anyone that she
had received more than the approved advance. Initial Decision at 2-3.
As a result of this overpayment, Garner, after filing travel vouchers and receiving
credits, owed the government $2,276.03 as of December 10, 2001, which was still
unpaid on March 1, 2002, nearly seven months after her trip. On March 6, Garner’s
supervisor, Karen Smith, received a letter from the IRS budget office stating that
Garner’s “[o]utstanding balance should be paid in full.” (Resp’t Br. App. at 35-37.)
Smith met with Garner to discuss her overdue account on April 2, 2002. Initial Decision
at 4. The next day, Garner sent Smith a memorandum promising to repay the balance
due by May 15, 2002. (Garner erroneously wrote this due date as “5/15/01”, but it is
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clear from other dates referenced that “01” is a typographical error and should have
been “02.”) Id.; (Resp’t Br. App. at 38.) Garner’s memorandum further stated that she
“was not aware of the time factor involved in paying the outstanding balances” because
she relied upon secretaries to handle her travel paperwork and had never done it
herself. (Resp’t Br. App. at 38.) Despite her written promise to pay by May 15, Garner
did not clear her balance until June 11, 2002, nearly a month after her deadline and ten
months after receiving the excessive advance. Initial Decision at 4.
The agency began proceedings culminating in Garner’s removal from service on
two charges: (1) misuse of travel funds to which Garner was not entitled, based upon
her acceptance of the excess $1,930 advance; and (2) failure to timely pay her
outstanding travel balance. Upon Garner’s initial appeal to the Board, the administrative
judge held that the agency had proved only the second charge and mitigated Garner’s
penalty to a fourteen-day suspension without pay. Initial Decision at 1-7. Upon the
Agency’s petition, the Board reversed the initial decision in part to find that the agency
proved both charges, and sustained Garner’s removal. Board Op. at 1.
II
We must affirm the Board’s decision unless it is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; obtained without procedures
required by law, rule, or regulation having been followed; or unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (1998); see Kewley v. Dep’t of Health & Human Servs.,
153 F.3d 1357, 1361 (Fed. Cir. 1998). On appeal, Garner seeks reinstatement, back
pay, and a lesser penalty of suspension “[i]f punishment is deemed appropriate” on two
grounds. First, she argues that “[t]here is no evidence of alleged misuse of travel
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funds.” (Pet’r Br. at 1.) Second, Garner contends that her penalty is excessive in light of
the relevant factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280,
305-06 (1981). Garner’s arguments fail to persuade us that the Board acted improperly
in sustaining her removal.
The record supports the Board’s finding that Garner misused travel funds based
upon her acceptance of $1,930 in excess of her approved travel advance. Garner
argues that her advance was “approved, processed and disbursement was made” a few
hours before she had to “catch a flight” and that she “did not complete nor review the
paperwork,” but instead “merely signed what was presented to [her] by the secretary”
and “never received any other guidance as [to] how to proceed.” (Pet. Br. at 3.) The
Board found that Garner had knowingly accepted an amount greatly in excess of the
amount she requested. The Board further found that no plausible reason would support
any view that the amount she received was correct. The Board held that knowing
receipt of such an excessively erroneous amount for travel funds constituted misuse of
travel funds. We agree with the Board; substantial evidence supports its conclusion.
Garner argues that she “was not made aware of the policy for travel in
Examination Branch,” (Pet. Br. at 4), and that “[i]f there was errors made [sic], it should
have been caught by those people,” referring to the section secretary and the reviewing
and disbursing officials. (Resp’t Br. App. at 27 (Oral Reply of Deidre Garner, July 31,
2002).) These excuses do not relieve Garner of individual responsibility. Not only was
she a supervisor who had traveled on business before, but she had also been
previously disciplined for failure to pay travel charges, and so she presumably knew or
should have known that she bore significant responsibility for her own travel advances.
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Garner contends that the penalty of removal was excessive in light of the record
showing her lack of knowledge of travel accounting procedures and her otherwise
commendable job performance. We uphold a penalty determination unless it is “clearly
excessive or an abuse of discretion.” Coleman v. United States Secret Serv., 749 F.2d
726, 729 (Fed. Cir. 1984) (citing Douglas, 5 M.S.P.R. at 305-06). Here, the factors
supporting removal include Garner’s past discipline for credit card misuse and failure to
timely pay travel expenses, as well as her position as a supervisor, who is “held to a
higher standard of conduct than other employees.” Fischer v. Dep’t of the Treasury, 69
M.S.P.R. 614, 619 (1996). In light of these factors, we cannot say the Board abused its
discretion or imposed an excessive penalty.
CONCLUSION
The decision of the Board is affirmed.
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