Michelle Perez v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHELLE PEREZ,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2024-1835
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-22-0143-I-1.
______________________
Decided: April 22, 2026
______________________
G LEN D. MANGUM , Law Offices of Glen D. Mangum,
San Antonio, TX, for petitioner.
I SABELLE AUBRUN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by ELIZABETH
MARIE H OSFORD, P ATRICIA M. MCCARTHY , BRETT SHUMATE.
______________________
Before REYNA, CLEVENGER , and CHEN, Circuit Judges.
Case: 24-1835 Document: 64 Page: 1 Filed: 04/22/2026

-- 1 of 8 --

PEREZ v. ARMY 2
REYNA, Circuit Judge.
Michelle Perez petitions from a final decision of the
Merit Systems Protection Board affirming her removal
from federal service due to failure to follow instructions
and conduct unbecoming a supervisor. We affirm.
BACKGROUND
On April 11, 2021, petitioner Michelle Perez accepted a
position as a “Supervisory Accounting Technician” in the
Uniform Business Office (“UBO”) at Brooke Army Military
Center in Fort Sam Houston, Texas. This position was sub-
ject to a one-year supervisory probation period.
On November 4, 2021, Ms. Perez’s second-level super-
visor, U.S. Army Major Matthew Slykhuis (“MAJ
Slykhuis”), proposed to remove Ms. Perez based on two
charges: failure to follow instructions and conduct unbe-
coming a supervisor (J.A. 98–101, “Notice of Proposed Re-
moval”).1
For the failure to follow instructions charge, MAJ
Slykhuis listed six instances in which Ms. Perez allegedly
failed to follow instructions. J.A. 98–99. These instances
are referred to by the parties as “specifications.” Three
specifications referred to instances where Ms. Perez alleg-
edly failed to follow the proper channels for certain tasks.
See id. (specifications (b.), (e.), and (f.)).2 The other three
specifications referred to a failure to complete certain
trainings and a failure to follow certain overtime proce-
dures. Id. (specifications (a.), (c.), (d.)).
Concerning the conduct unbecoming a supervisor
charge, MAJ Slykhuis listed three specifications
1 Ms. Perez had several supervisors, each at a differ-
ent level of supervision.
2 MAJ Slykhuis alphabetized the specifications with
letters, i.e., (a.)–(f.). J.A. 98–99. We do the same here.
Case: 24-1835 Document: 64 Page: 2 Filed: 04/22/2026

-- 2 of 8 --

PEREZ v. ARMY 3
supporting this charge. J.A. 99–100. Specification (a.)
noted that Ms. Perez allegedly engaged in a heated disa-
greement with a subordinate, during which Ms. Perez com-
plained about her first-level supervisor, Ms. Alpizar. J.A.
99.3 Specification (b.) noted that Ms. Perez allegedly re-
sponded to a request from a supervisor for a weekly trend
report noting that “I decided I will not do that report be-
cause I see no value.” J.A. 99–100. Specification (c.) noted
that in response to receiving an unfair labor practice
charge from the union representing Ms. Perez’s subordi-
nate, Ms. Perez responded to the union with allegedly in-
correct information. J.A. 100.
On December 3, 2021, Ms. Perez responded to the No-
tice of Proposed Removal, noting “specifics and mitigating
circumstances” of her time at UBO. J.A. 360–70. She also
noted that removal was the “most extreme punishment”
and that instead, she should receive an “incremental ap-
proach towards discipline.” J.A. 370.
On January 4, 2022, U.S. Army Lieutenant Colonel
Stephen Schwab (“LTC Schwab”), Ms. Perez’s third-level
supervisor, sustained the charges and upheld the decision
to remove Ms. Perez. LTC Schwab explained that he re-
viewed the Notice of Proposed Removal and Ms. Perez’s re-
sponse, and “all relevant Douglas Factors.”4 J.A. 354. He
concluded that the preponderance of the evidence sup-
ported the charges and specifications and that removal was
3 Specifications (a.) – (c.) for the conduct unbecoming
a supervisor charge are separate and distinct from the
specifications supporting the charge for the failure to follow
instructions.
4 The “Douglas factors” refers to the twelve factors
articulated in Douglas v. Veterans Administration, 5
M.S.P.B. 313 (1981) for an agency to consider when deter-
mining whether a penalty is appropriate.
Case: 24-1835 Document: 64 Page: 3 Filed: 04/22/2026

-- 3 of 8 --

PEREZ v. ARMY 4
warranted. On January 28, 2022, Ms. Perez was removed
from service.
Ms. Perez subsequently appealed her removal to the
Merit Systems Protection Board (“Board”), where she con-
tested whether the charged conduct occurred and whether
removal was an appropriate penalty under the Douglas fac-
tors. J.A. 1–46. In an initial decision, the administrative
judge (“AJ”) found that the U.S. Army (“Army” or “agency”)
proved by preponderant evidence (1) five of the six specifi-
cations for the failure to follow instruction charge and (2)
two of the three specifications for conduct unbecoming a
supervisor charge. J.A. 3–17. Relying on case law which
notes that proof of one or more, but not all, supporting spec-
ifications is sufficient to sustain a misconduct charge, the
AJ sustained both misconduct charges. Id. (citing Bur-
roughs v. Dep’t of the Army, 918 F.2d 170, 172 (Fed. Cir.
1990)). The AJ also determined that the Army had estab-
lished a nexus between its charges and the efficiency of ser-
vice. J.A. 17. Finally, the AJ upheld the Army’s penalty of
removal as reasonable. J.A. 17–20. The AJ relied on
LTC Schwab’s testimony, in which he explained that re-
moval was appropriate because Ms. Perez (1) repeatedly
engaged in misconduct, (2) was held to a higher standard
as a supervisor, and (3) did not show remorse or take re-
sponsibility when faced with the proposed removal.
J.A. 19.
The AJ’s initial decision became the final decision of
the Board. J.A. 47–54. Ms. Perez petitions for review of
the Board’s decision. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
Our review of Board decisions is limited. 5 U.S.C.
§ 7703(c). We set aside a Board decision only when it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
Case: 24-1835 Document: 64 Page: 4 Filed: 04/22/2026

-- 4 of 8 --

PEREZ v. ARMY 5
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence[.]” Id.
Before removing an employee, an agency must prove by
a preponderance of the evidence that: (1) the charged mis-
conduct occurred, (2) there is a nexus between the em-
ployee’s conduct and disciplining the employee to promote
the efficiency of service, and (3) the penalty of removal is
reasonable. Hansen v. Dep’t of Homeland Sec., 911 F.3d
1362, 1366 (Fed Cir. 2018). Ms. Perez challenges the
Board’s determination the Army proved by preponderant
evidence the first and third requirements. Ms. Perez does
not challenge the nexus requirement. We address each
challenge in turn.
I.
Ms. Perez argues that the Board’s determination that
the Army sufficiently showed that the charged misconduct
occurred should be set aside. Petitioner Br. 9, 12–15. We
disagree. Ms. Perez’s primary argument for setting aside
this determination is that the Army’s Notice of Proposed
Removal did not sufficiently apprise her of the charges,
which somehow rendered the Board’s decision improper.
See, e.g., Petitioner Br. 15. Ms. Perez, however, has for-
feited this argument on appeal by not first raising it before
the Board. See Kachanis v. Dep’t of Treasury, 212 F.3d
1289, 1293 (Fed. Cir. 2000) (“[A]ppellants may not raise is-
sues on appeal for the first time.”).
Ms. Perez also summarily argues that the Board’s de-
termination is unsupported by substantial evidence. Peti-
tioner Br. 15, 18. Ms. Perez’s summary assertion of a lack
of substantial evidence, however, has no merit. Here, in
the initial decision, which became the Board’s final deci-
sion, the AJ found that the Army sufficiently proved the
charge of failure to follow instructions based on five speci-
fications and the charge of conduct unbecoming a supervi-
sor based on two specifications. The AJ’s findings rested
on testimony from Army officials and Ms. Perez, and
Case: 24-1835 Document: 64 Page: 5 Filed: 04/22/2026

-- 5 of 8 --

PEREZ v. ARMY 6
documents in the administrative record, including emails
between Ms. Perez and her supervisors and other work col-
leagues. J.A. 4–17. This is substantial evidence that sup-
ports the AJ’s findings. Apart from being summary, Ms.
Perez’s argument is an invitation for us to reweigh the ev-
idence before the Board as to each specification. See, e.g.,
Petitioner Br. 12 (arguing that specifications underlying
the failure to follow instructions charge are allegedly incor-
rect because she “did not refuse to complete the train-
ing. . . . [but] simply failed to complete the training”). But
we lack the authority to reweigh evidence. Rickel v. Dep’t
of the Navy, 31 F.4th 1358, 1366 (Fed. Cir. 2022). In sum,
the Board’s determination that the Army sufficiently
showed the two charges of misconduct occurred is sup-
ported by substantial evidence.
II.
Ms. Perez challenges as unsupported by substantial ev-
idence the Board’s determination that the Army suffi-
ciently showed that the penalty of removal was reasonable.
Petitioner Br. 17. Specifically, Ms. Perez argues that the
Board erred as to Douglas factor 7—consistency of the pen-
alty with any applicable agency table of penalties. See id.
We reject Ms. Perez’s argument.
“Determination of an appropriate penalty is a matter
committed primarily to the sound discretion of the employ-
ing agency.” Hunt v. Dep’t of Health & Human Servs.,
758 F.2d 608, 611 (Fed. Cir. 1985). In determining the rea-
sonableness of a penalty to be imposed, the agency consid-
ers the Douglas factors. See Douglas v. Veterans Admin., 5
M.S.P.B. 313, 332–33 (1981). The Douglas factors are
twelve nonexclusive factors for an agency to consider when
determining whether a penalty is appropriate. See id. at
332. While not all factors will be pertinent to every case,
the agency must “consider the relevant factors” and “strike
a responsible balance” in selecting a penalty. See id. at
332–33.
Case: 24-1835 Document: 64 Page: 6 Filed: 04/22/2026

-- 6 of 8 --

PEREZ v. ARMY 7
In turn, when the Board reviews the agency’s Douglas
factor analysis, the Board’s role is limited. Norris v. S.E.C.,
675 F.3d 1349, 1355 (Fed. Cir. 2012). It is to “assure that
the agency did conscientiously consider the relevant [Doug-
las] factors and did strike a responsible balance within
[the] tolerable limits of reasonableness.” Id. (citation mod-
ified).
Substantial evidence supports the Board’s determina-
tion that LTC Schwab sufficiently and appropriately con-
sidered Douglas factor 7, i.e., that the penalty be consistent
“with any applicable table of penalties.” LTC Schwab tes-
tified before the Board that he referred to the Fort Sam
Houston Regulation Table of Penalties.
J.A. 2042:22–2043:4. This table of penalties recommends
a “written reprimand to 1-day suspension” for a first of-
fense of failure to follow instructions and a “1-day suspen-
sion to removal” for a first offense of conduct unbecoming
of a federal employee. J.A. 2439–40. LTC Schwab consid-
ered this range of penalties, see J.A. 1228, and ultimately
settled on the penalty of removal. There is no error here.
Even though removal was not a recommended penalty for
the failure to follow instructions charge, removal was a rec-
ommended penalty for the conduct unbecoming a supervi-
sor charge. Thus, LTC Schwab’s decision to remove Ms.
Perez was consistent with the applicable table of penalties.
As to the other Douglas factors, Ms. Perez fails to pre-
sent any ground for disturbing the Board’s review of the
Army’s assessment of these factors. As such, we uphold the
Board’s determination, which Ms. Perez has failed to show
“is unauthorized or exceeds the bounds of reasonableness.”
Dominguez v. Dep’t of Air Force, 803 F.2d 680, 684 (Fed.
Cir. 1986). “Whether the court would have selected a dif-
ferent penalty had it made the initial determination is ir-
relevant.” Id.
CONCLUSION
Case: 24-1835 Document: 64 Page: 7 Filed: 04/22/2026

-- 7 of 8 --

PEREZ v. ARMY 8
We have considered Ms. Perez’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
Case: 24-1835 Document: 64 Page: 8 Filed: 04/22/2026

-- 8 of 8 --