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1,000 | https://www.mspb.gov/decisions/nonprecedential/Phillips_Darryl_S_SF-0752-19-0527-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARRYL S. PHILLIPS,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0752-19-0527-I-1
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John K. Fu , Esquire, Burbank, California, for the appellant.
Deborah Finch , Esquire, and Keaton Norquist , Esquire, San Francisco,
California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal .
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal pursuant to 5 U.S.C. chapter 75. For the reasons set forth
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
Effective May 31, 2019, the agency removed the appellant from his
position as a GS-12 Building Manager for false and misleading statements.
Initial Appeal File (IAF), Tab 9 at 13, 15-22, 43 -49. He appealed his removal to
the Board. IAF, Tab 1. Following a hearing on the matter, the administrative
judge issued an October 22, 2019 initial decision finding that the agency proved
its charge by preponderant evidence and sustaining the appellant’s removal. IAF,
Tab 25, Initial Decision (ID) at 13, 16. The administrative judge notified the
appellant that the initial decision would become final on November 26, 2019,
unless a petition for review was filed by that date. ID at 16.
On December 2, 2019, the appellant filed a petition for review with the
Western Regional Office, which was thereafter forwarded to the Office of the
Clerk of the Board. Petition for Review (PFR) File, Tab 1 at 1, 50, Tab 2 at 1.
In his petition, the appellant alleges that the agency failed to prove its charge and
he disagrees with many of the administrative judge’s findings of fact. PFR File,
Tab 1 at 2-7. The appellant also provides documentary evidence, the majority of
which was not included in the record before the administrative judge. Id. at 8-49.
The Office of the Clerk of the Board notified the appellant that his petition
for review was untimely and explained that he must file a motion asking the
Board to accept the petition for review as untimely and/or to waive the time limit
for good cause. PFR File, Tab 2 at 2. The appellant did not respond. The agency
has responded to the appellant’s petition for review, arguing that it is untimely
filed and that the appellant failed to file a motion asking the Board to accept the
petition for review as untimely and/or to waive the time limit for good cause.
PFR File, Tab 3 at 4. The agency also addresses the appellant’s arguments and2
additional documentary evidence, and it contends that the appellant has not
shown a basis for disturbing the initial decision. Id. at 4-12.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that he received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date he
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
was issued on October 22, 2019 and sent to the appellant via U.S. mail the same
day. IAF, Tab 26 at 1. The appellant does not allege that he did not receive the
initial decision within 5 days of its issuance; accordingly, his petition for review
is untimely by 6 days.2 PFR File, Tab 1 at 50; see 5 C.F.R. § 1201.114(e).
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g).
To establish good cause for an untimely filing, the appellant must show that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether he has presented evidence of the
existence of circumstances beyond his control that affected his ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly shows
a causal relationship to his inability to file a timely petition. See Wyeroski v.
Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950
(Fed. Cir. 2007).
2 Although the appellant erroneously filed his petition for review with the Western
Regional Office, PFR File, Tab 1 at 50, the Board treats such a submission as filed with
the Board on the date it was filed with the regional office, Melendez v. Department of
Veterans Affairs, 73 M.S.P.R. 1, 3 n.1 (1996). 3
We find that the appellant has not demonstrated good cause for the
untimely filing of his petition for review. Although the appellant is pro se3 and
his 6-day delay is not especially lengthy, the appellant provides no explanation
for his late filing despite being given an opportunity to do so. The Board has
consistently denied a waiver of the filing deadline if a good reason for the delay
is not shown, even when the delay is minimal and the appellant is pro se. See,
e.g., Lockhart v. Office of Personnel Management , 94 M.S.P.R. 396, ¶¶ 7-8
(2003) (declining to excuse a 5-day delay in filing a petition for review when the
pro se appellant failed to show good cause for the delay). The appellant’s failure
to address the timeliness of his petition for review and the lack of evidence of
circumstances beyond his control or of unavoidable casualty or misfortune that
prevented him from filing a timely petition for review weigh against finding good
cause. See Cabarloc v. Department of Veterans Affairs , 112 M.S.P.R. 453,
¶¶ 9-10 (2009) (finding no good cause for the pro se appellant’s 10-day delay in
filing a petition for review when he failed to respond to the Clerk’s notice
regarding timeliness).
Moreover, the appellant does not address his filing delay in his petition for
review; instead, he challenges the merits of the agency’s removal action and he
provides additional documentary evidence in support of his merits -based
arguments. PFR File, Tab 1 at 2-49; see Guevara v. Department of the Navy ,
112 M.S.P.R. 39, ¶ 7 (2009) (finding that the appellant failed to establish good
cause for his untimely filed petition for review when he merely argued the merits
of the agency’s removal action). To this end, the appellant does not allege, and
nothing in his petition for review suggests, that the documents he provides on
review constitute new evidence that was unavailable to him prior to the close of
the record. See Agbenyeke v. Department of Justice , 111 M.S.P.R. 140, ¶ 12
(2009) (explaining that the discovery of new evidence may establish good cause
3 The appellant was represented by an attorney before the administrative judge;
however, he appears to have filed his petition for review without the assistance of
counsel. IAF, Tab 1 at 6; PFR File, Tab 1. 4
for the untimely filing of a petition for review if, among other things, the
evidence was not readily available before the close of the record). Indeed, all of
the appellant’s arguments appear to be based on information previously available
to him such that he could have timely filed a petition for review on these bases .4
See Wilson v. General Services Administration , 15 M.S.P.R. 45, 47 (1983)
(finding that the appellant had not shown good cause for his untimeliness
because, among other things, he failed to show that the “new” information on
which he relied was unavailable, despite due diligence, before the record closed).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the removal appeal.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
4 Nearly all of the documents that the appellant provides with his petition for review
predate the initial decision. PFR File, Tab 1 at 14-37, 40-49; see Alexander v.
Department of Veterans Affairs , 90 M.S.P.R. 591, ¶ 8 (2002) (finding that documents
that were available before the issuance of the initial decision were not new evidence
establishing good cause for the untimely filing of a petition for review). The only
documents that the appellant provides that postdate the initial decision are a job posting
dated November 5, 2019, which the appellant apparently provides to show that a
“similar” Federal position allowed applicants “to substitute experience with education,”
and two affidavits regarding his work history. PFR File, Tab 1 at 2-3, 8-13, 38-39.
However, the appellant has not shown that the information contained in these
documents was unavailable prior to the finality date of the initial decision. Thus, we
find that the appellant has not shown good cause for his filing delay based on these
documents.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation6
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Phillips_Darryl_S_SF-0752-19-0527-I-1__Final_Order.pdf | 2024-07-11 | DARRYL S. PHILLIPS v. GENERAL SERVICES ADMINISTRATION, MSPB Docket No. SF-0752-19-0527-I-1, July 11, 2024 | SF-0752-19-0527-I-1 | NP |
1,001 | https://www.mspb.gov/decisions/nonprecedential/Baker-Dubbs_MichelleDC-0752-19-0027-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE BAKER-DUBBS,
Appellant,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION,
Agency.DOCKET NUMBER
DC-0752-19-0027-I-1
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard L. Swick , Esquire, Washington, D.C., for the appellant.
Thomas J. Sarisky , Esquire, and Matthew A. Rizzo , Esquire, Arlington,
Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her demotion. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
VACATE the administrative judge’s statement that the appellant’s representative
made an inaccurate representation during the hearing, we AFFIRM the initial
decision.
BACKGROUND
The appellant was employed by the agency as a Corporate Graded (CG)-14
Senior Ethics Program Specialist with its Office of General Counsel. Initial
Appeal File (IAF), Tab 9 at 27. On June 27, 2018, the agency proposed to
remove the appellant based on charges of inappropriate conduct and misuse of
duty time. IAF, Tab 6 at 61-65. Effective September 30, 2018, the agency
sustained both charges and demoted the appellant to the position of a CG-12
Board Support Specialist. IAF, Tab 4 at 26-28, Tab 20 at 46. The charges
stemmed from the appellant’s actions of repeatedly performing some of her
father’s duties as an agency Contract Specialist between September and
December 2017. IAF, Tab 6 at 61-64.
This appeal followed. IAF, Tab 1. After holding a hearing, Hearing
Transcript (HT), the administrative judge found that the agency proved its
charges and specifications, as well as nexus, IAF, Tab 25, Initial Decision (ID)2
at 5-15. He further found that the appellant failed to establish her affirmative
defense of retaliation for her father’s protected equal employment opportunity
activity, ID at 15-18, and that the agency showed that the demotion penalty was
within the bounds of reasonableness, ID at 19-21. He therefore affirmed the
appellant’s demotion. ID at 21.
The appellant has filed a petition for review, arguing that the administrative
judge prevented her from introducing evidence regarding her affirmative defense
and that the penalty was unreasonable. Petition for Review (PFR) File, Tab 1
at 6-12. The appellant also challenges the administrative judge’s finding that her
representative made a misrepresentation during the hearing. Id. at 10-11, 10 n.6.
The agency has filed a response opposing the petition, and the appellant has filed
a reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant does not challenge the administrative judge’s finding that the
agency proved both charges and all supporting specifications, and that a nexus
exists between the charges and the efficiency of the service. After reviewing the
initial decision, which included demeanor-based credibility determinations
against the appellant, we see no reason to disturb those findings. ID at 5-15; see
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating
that the Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so) .
Accordingly, we find that the agency has established both that the appellant
engaged in the charged misconduct and nexus. 3
The appellant failed to establish that the administrative judge erred by precluding
her from introducing some evidence regarding her affirmative defense.
The appellant argues on review that the administrative judge erred by
precluding her from calling an agency Labor-Employee Specialist as a witness in
support of her affirmative defense and then also precluding her from introducing
into the record his deposition. PFR File, Tab 1 at 10-12. Below, when
submitting her request to call the Labor-Employee Specialist as a witness at the
hearing, the appellant proffered that he was “expected to testify about the process
and options available to the managers that led to the determination to [] propose
to terminate appellant and then to demote her.” IAF, Tab 19 at 8.
In his order and summary of the prehearing conference, the administrative
judge denied the appellant’s request to call the Labor-Employee Specialist as a
witness because he found the proposed testimony to be irrelevant. IAF, Tab 21
at 4. The administrative judge noted, however, that the parties could ask him to
reconsider his ruling “if they can demonstrate . . . that the proposed testimony is
relevant to a material issue and/or to refute a material disputed fact.” Id. at 4 n.4.
The administrative judge’s order and summary also provided that if either party
had an exception to the summary, they had to file an objection within 5 days of
the date of the order. Id. at 4.
In neither of the appellant’s pleadings that followed did she object to the
administrative judge’s ruling. IAF, Tabs 22-23. Moreover, the appellant did not
request that the administrative judge reconsider his ruling denying the
Labor-Employee Specialist as a witness during or after the hearing, HT, and there
is no indication in the record that the administrative judge ever precluded the
appellant from submitting into evidence the Labor-Employee Specialist’s
deposition.
An administrative judge has wide discretion to control the proceedings,
including the authority to exclude testimony he believes would be irrelevant,
immaterial, or unduly repetitious. Vaughn v. Department of the Treasury ,4
119 M.S.P.R. 605, ¶ 12 (2013). The appellant’s vague assertions on review fail
to show that the Labor-Employee Specialist’s testimony would have been relevant
or material and that the administrative judge thereby abused his discretion by
precluding him from testifying. PFR File, Tab 1 at 10-12; see Vaughn,
119 M.S.P.R. 605, ¶ 13. Because the appellant does not otherwise challenge the
administrative judge’s analysis of her claim of retaliation for her father’s EEO
activity, ID at 15-18, which included implicit demeanor-based credibility
determinations, we affirm the administrative judge’s conclusion in this regard.
The agency proved that the imposed penalty was within the bounds of
reasonableness.
When the Board sustains an agency’s charges, it will defer to the agency’s
penalty determination unless the penalty exceeds the range of allowable
punishment specified by statute or regulation, or unless the penalty is so harsh
and unconscionably disproportionate to the offense that it amounts to an abuse of
discretion. Batara v. Department of the Navy , 123 M.S.P.R. 278, ¶ 5 (2016).
That is because the employing agency, and not the Board, has primary discretion
in maintaining employee discipline and efficiency. Id. The Board will not
displace management’s responsibility, but instead will ensure that managerial
judgment has been properly exercised. Id. Mitigation of an agency-imposed
penalty is appropriate only when the agency failed to weigh the relevant factors
or when the agency’s judgment clearly exceeded the limits of reasonableness. Id.
The deciding official need not show that he considered all the mitigating factors,
and the Board will independently weigh the relevant factors only if the deciding
official failed to demonstrate that he considered any specific, relevant mitigating
factors before deciding on a penalty. Id.
In his decision notice, the deciding official stated that he considered the
appellant’s misconduct to be “very serious in relation to [her] duties, position,
and responsibilities.” IAF, Tab 4 at 27. He also considered that the appellant
took training which put her on notice of the agency’s policies regarding the5
protection of sensitive information. Id. The deciding official found that the
appellant’s minimization and rationalization of her misconduct suggested a poor
potential for rehabilitation. Id. at 28. He considered, as mitigating factors, the
appellant’s 16 years of Federal service, satisfactory performance appraisals, and
the fact that she was grieving the loss of her mother and her father was having
health issues during the time period of her misconduct. Id. Upon weighing all
the relevant factors, the deciding official determined that demoting the appellant
and reassigning her out of the Ethics Unit would promote the efficiency of the
service. Id. After reviewing the deciding official’s analysis of the penalty, the
administrative judge found that the agency properly considered the relevant
aggravating and mitigating factors and agreed that the appellant’s demotion was
within the bounds of reasonableness.2 ID at 19-21.
In assessing the reasonableness of a penalty, the Board places primary
importance upon the nature and seriousness of the offense and its relation to the
appellant’s duties, position, and responsibilities, including whether the offense
was intentional, frequently repeated, or for gain. Batara, 123 M.S.P.R. 278, ¶ 8;
Villada v. U.S. Postal Service , 115 M.S.P.R. 268, ¶ 6 (2010), overruled on other
grounds by Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 9. Here, during her
own duty time, the appellant performed the unrelated work of another agency
employee, her father. IAF, Tab 6 at 61-64; HT at 28 (testimony of the appellant);
ID at 3, 5-14. In the process, the appellant inappropriately accessed the agency’s
secure Automated Procurement System, using her father’s username and
password, on 24 separate occasions. IAF, Tab 6 at 61-64; ID at 6. The
appellant’s actions were frequently repeated over a nearly 3-month period and
were done for her father’s benefit and to satisfy her obligations as a daughter.
IAF, Tab 6 at 61-64; ID at 6, 13. She helped her father at all hours of the
workday, often multiple times per day. IAF, Tab 6 at 14, 64; ID at 13 n.19.
2 Despite the agency’s decision to demote the appellant, the administrative judge also
found that removal did not exceed the bounds of reasonableness. ID at 20-21. 6
Some of the appellant’s duties and responsibilities as a Senior Ethics Program
Specialist included training agency employees about some of the agency rules
that she violated. IAF, Tab 7 at 67-72; ID at 11, 20. The appellant does not
challenge any of these facts and findings as set forth in the initial decision.
Under these circumstances, we find that the appellant’s misconduct was serious,
intentional, frequently repeated, and for gain.
The appellant argues that the proposing and deciding officials failed to
consider the agency’s table of penalties, which purportedly suggests a maximum
penalty of a 20-day suspension for the two sustained charges. PFR File, Tab 1
at 7-9. This argument is not persuasive. The proposing and deciding officials
stated that they considered the relevant Douglas factors.3 IAF, Tab 4 at 27, Tab 6
at 64. The record contains a table of penalties for violations of agency policies
related to the protection of agency data. IAF, Tab 23 at 4-5. For a first offense
of accessing confidential agency information without authorization, the expected
penalty was a letter of admonishment to a 10-day suspension, the expected
penalty for a second offense was a 3-day suspension to removal, and the expected
penalty for a third offense was a 14-day suspension to removal. Id. The same
expected penalties were also detailed for a first, second, and third offense of
using authorized access to confidential agency information for unauthorized
purposes. Id. However, a footnote to the table of penalties explicitly provided
that its purpose was only to highlight select data -related policy violations, and
that it was not an exhaustive list of available disciplinary charges. Id. at 5 n.*.
Thus, although the appellant argues that the two listed offenses which she
committed call for a combined maximum penalty of a 20-day suspension, her
assertion does not take into account the non-data-related misconduct that she
committed. Finally, an agency’s table of penalties is merely a guide and is not
mandatory unless the agency has a specific statement making the table mandatory
3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors, both aggravating and mitigating, that are
relevant to the penalty determination in adverse action cases. 7
and binding rather than advisory. Taylor v. Department of Veterans Affairs ,
112 M.S.P.R. 423, ¶ 10 (2009), modified on other grounds by Lewis v.
Department of Veterans Affairs , 113 M.S.P.R. 657 (2010). Here, the footnote to
the table of penalties explained that it is to be used “as guidance, not as a required
standard,” and provided that “deviations are allowable for a variety of reasons,”
including if an employee commits a violation that is “egregious,” or if the
employee “is being charged with multiple offenses at the same time.” IAF,
Tab 23 at 5 n.*. Accordingly, we find the appellant’s argument to be
unpersuasive.
The appellant also argues that the proposing and deciding officials failed to
consider any precedent disciplinary cases.4 PFR File, Tab 1 at 7. Specifically,
the appellant asserts on review that “[i]t is hard to imagine the [a]gency had no
prior disciplinary case precedents to consult,” but she does not identify any
potential comparators. Id. at 7 n.2. The consistency of the penalty with those
imposed upon other employees for the same or similar offenses is one of a
nonexhaustive list of 12 factors that are relevant for consideration in determining
the appropriateness of a penalty. The Board should not attempt to weigh the
relative seriousness of various offenses in order to determine whether two
employees who committed different acts of misconduct were treated disparately.
Singh, 2022 MSPB 15, ¶¶ 17-18. We find the appellant’s speculation that there
were comparators unavailing.
The appellant asserts that her misconduct had no negative impact upon her
productivity or upon “data confidentiality.” PFR File, Tab 1 at 9. However, the
agency never cited the appellant’s misconduct as negatively impacting either her
productivity or “data confidentiality.” IAF, Tab 4 at 27-28. The absence of such
4 Although the administrative judge noted that the appellant was not raising a disparate
penalty claim in the order and summary of prehearing teleconference, IAF, Tab 21 at 2
n.2, and she did not object to the administrative judge’s statement, we consider her
argument on review because it involves one of the Douglas factors.8
aggravating factors is essentially neutral in this case and does not significantly
impact the penalty analysis.
The appellant further argues that her demotion is “needlessly
counter-productive” because a lesser penalty would suffice and her extensive
skills and knowledge would be most effectively deployed in her CG-14 position.
PFR File, Tab 1 at 9. We are not persuaded that this argument warrants a
different outcome. Importantly, the deciding official found that the appellant
could no longer be trusted in a position in the Ethics Unit and needed to be
demoted to a position that required “less judgment, trust, independence, and
integrity.” IAF, Tab 4 at 28. In light of our decision to affirm the agency’s
finding that demotion is a reasonable penalty, we are not persuaded that further
mitigation is warranted.
The appellant requests that the Board consider the profound impact that her
demotion, with its accompanying loss of pay, will have upon her financially, now
and during retirement. PFR File, Tab 1 at 9. We have considered this
consequence, but it does not change our finding that the demotion penalty is
reasonable under the circumstances.
Although not raised on review, we consider as mitigating, as did the
deciding official, the appellant’s 16 years of Federal service with satisfactory
performance appraisals and several awards with the agency, as well as the fact
that, during the period of her misconduct, she was grieving the loss of her mother
and that her father was having health issues. IAF, Tab 4 at 28. But in light of the
nature and seriousness of the appellant’s misconduct and its relation to her
position, we find that the deciding official reasonably concluded that demotion
was a reasonable penalty. See Cohen v. Internal Revenue Service , 7 M.S.P.R. 57,
58, 61 (1981) (affirming the appellant’s removal for eleven specifications of
performing personal business during duty hours, considering that he occupied a
position of trust with the agency, despite 13 years of service and his previously9
unblemished record). Accordingly, we affirm the appellant’s two -grade level
demotion as within the bounds of reasonableness.5
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
5 On review, the appellant’s representative also challenges the administrative judge’s
statement that he made a misrepresentation during the hearing. PFR File, Tab 1 at 10-
11, 10 n.6; ID at 16 n.20. We have reviewed the relevant portion of the hearing
transcript, which reflects that the appellant and her representative were talking to the
administrative judge at the same time. HT at 73-76. It appears from our review of the
transcript that the representative was largely trying to clarify what had occurred in the
appellant’s father’s lawsuit. Id. Under these circumstances, we vacate the
administrative judge’s statement in the initial decision.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you11
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 12
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Baker-Dubbs_MichelleDC-0752-19-0027-I-1__Final_Order.pdf | 2024-07-11 | null | DC-0752-19-0027-I-1 | NP |
1,002 | https://www.mspb.gov/decisions/nonprecedential/Newbill_CerissaCH-0752-20-0011-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CERISSA NEWBILL,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
CH-0752-20-0011-I-2
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cerissa Newbill , Cincinnati, Ohio, pro se.
Joshua A. Dombrow , Esquire, and Pamela D. Langston-Cox , Esquire,
Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal with prejudice to refiling for failure to prosecute.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant asserts that she was not aware of the status
conferences until after the scheduled dates because she works full time and has to
care for her ill mother. Petition for Review File, Tab 3 at 6-7. She reiterates that
she thought her Board appeal was on hold pending the resolution of the criminal
charges against her. Id. at 6. Regarding her criminal case, she indicates that it is
still ongoing and she is in the process of filing an appeal with counsel. Id. The
administrative judge thoroughly addressed all of the appellant’s arguments in her
initial decision, and, for the reasons set forth therein, we find that the imposition
of the sanction of dismissal for failure to prosecute is appropriate here. Refiled
Appeal File, Tab 9, Initial Decision at 3-5. The appellant’s assertions, which
amount to mere disagreement with the administrative judge’s well-reasoned
findings, do not provide a basis to disturb the initial decision. See Riggsbee v.
Office of Personnel Management , 111 M.S.P.R. 129, ¶ 11 (2009). 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Newbill_CerissaCH-0752-20-0011-I-2__Final_Order.pdf | 2024-07-11 | CERISSA NEWBILL v. DEPARTMENT OF THE TREASURY, MSPB Docket No. CH-0752-20-0011-I-2, July 11, 2024 | CH-0752-20-0011-I-2 | NP |
1,003 | https://www.mspb.gov/decisions/nonprecedential/Fearson_James_A_DC-3330-19-0742-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES A. FEARSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3330-19-0742-I-1
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James A. Fearson , Fayetteville, Georgia, pro se.
Karen Barrows , Esquire, Rock Island, Illinois, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities (VEOA). Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except to MODIFY the finding that
the appellant is not entitled to corrective action, we AFFIRM the initial decision.
BACKGROUND
The appellant timely applied for the position of Supervisory Logistics
Management Specialist, GS-14, under a vacancy announcement that the agency
posted on USA Jobs on April 6, 2018. Initial Appeal File (IAF), Tab 6 at 24.
The position, advertised under merit promotion procedures, was open to current
employees and others with status. Id. When the appellant was not selected, he
filed a complaint, the receipt of which was acknowledged by the Department of
Labor’s Office of the Assistant Secretary for Veterans’ Employment and Training
Service (VETS) on July 2, 2019. IAF, Tab 1 at 9. On July 24, 2019, the assigned
VETS investigator notified the appellant of the determination that the evidence
did not support his allegation that the agency violated his veterans preference
rights in connection with the selection, and that he could file an appeal with the
Board, id. at 11.
On appeal, the appellant identified himself as a preference eligible, id. at 7,
and sought corrective action, arguing that the agency’s failure to promote him to2
the GS-14 position resulted from a flawed process, id. at 5. He requested a
hearing, id. at 2.
The administrative judge issued an order on VEOA jurisdiction and notice
of proof requirements. IAF, Tab 3. The appellant’s reply was nonresponsive.
IAF, Tab 4. The agency moved that the appeal be dismissed for lack of
jurisdiction on the basis that the appellant did not show that he was denied the
right to compete under 5 U.S.C. § 3304(f)(1) because veterans’ preference rights
do not attach to selections made under the merit promotion process. IAF, Tab 6.
In a decision based on the written record,2 the administrative judge first
found that the appellant established the Board’s jurisdiction over his claim.
IAF, Tab 12, Initial Decision (ID) at 2-4. She then found that he did not show
that the agency violated his veterans’ preference rights by obstructing his right to
compete for the position at issue because veterans’ preference does not apply
when an agency fills a position under the merit promotion process, ID at 4-5,
and she therefore denied the appellant’s request for corrective action. ID at 2, 6.
The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition. PFR File, Tab 3.
ANALYSIS
The parties do not dispute that the vacancy announcement at issue solicited
applications under the merit promotion process, that is, from within the agency’s
workforce and from applicants outside the agency who have status in the
competitive service, such as competitive service employees at other agencies or
preference eligible veterans. Joseph v. Federal Trade Commission , 505 F.3d
1380, 1381 (Fed. Cir. 2007); IAF, Tab 6 at 24. In contrast to the open
competition type of selection process, veterans’ point preferences do not apply in
2 The administrative judge found that a hearing was not required based on 5 C.F.R.
§ 1201.23(b) and Board case law, Williamson v. U.S. Postal Service , 106 M.S.P.R. 502,
¶ 8 (2007) (finding that an administrative judge may deny a hearing request in a VEOA
case when there is no genuine dispute of material fact and one party must prevail as a
matter of law). ID at 1, 2 n.1.3
the merit promotion process, Joseph, 505 F.3d at 1382; rather, preference eligible
applicants and certain veterans “may not be denied the opportunity to compete”
for such vacancies. 5 U.S.C. § 3304(f)(1).
The appellant in this case was an agency employee, a GS-13 Facility
Operations Specialist, when he applied for the position at issue, IAF, Tab 1 at 1,
7, seeking a promotion, id. at 5. In Kerner v. Department of the Interior ,
778 F.3d 1336 (Fed. Cir. 2015), our reviewing court, upon consideration of the
legislative history of the VEOA, held that § 3304 does not apply when a veteran
or preference eligible applicant is already employed in Federal civil service.
Id. at 1338-39. We find, therefore, based on the precedent set forth in Kerner,
that the appellant failed to show that he was denied the opportunity to compete
for the position because of his status as a current Federal employee, and that, for
that reason, he is not entitled to corrective action.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Fearson_James_A_DC-3330-19-0742-I-1__Final_Order.pdf | 2024-07-11 | JAMES A. FEARSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3330-19-0742-I-1, July 11, 2024 | DC-3330-19-0742-I-1 | NP |
1,004 | https://www.mspb.gov/decisions/nonprecedential/Hale_StaceySF-1221-19-0454-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACEY HALE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-1221-19-0454-W-1
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stacey Hale , Warner Robins, Georgia, pro se.
Peter C. Myers and Matthew Mackey , Joint Base Andrews, Maryland, for
the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. On
petition for review, she disputes the administrative judge’s finding that she failed
to nonfrivolously allege that any protected disclosure or activity was a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
contributing factor in a personnel action. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant’s petition for review asserts that she made a nonfrivolous
allegation of contributing factor under the knowledge/timing test. Petition for
Review (PFR) File, Tab 1 at 4. She attached a request for an extension of time to
submit a separate brief supporting her petition for review. Id. at 5. However, the
appellant never filed such a supporting brief.
The Acting Clerk of the Board subsequently informed the appellant of her
jurisdictional burdens, giving her proper notice of the expanded scope of
protected activity under 5 U.S.C. § 2302(b)(9)(C), and provided her with an
opportunity to meet her jurisdictional burden as to any such activity. PFR File,
Tab 5. The appellant did not respond. The agency moved to dismiss the appeal
for failure to prosecute and requested a stay in case processing deadlines.2 PFR
File, Tab 6.
2 We need not address the agency’s motion because, as set forth below, we find that the
appellant has failed to provide sufficient reason to reverse the initial decision. 2
As such, the appellant’s only argument on review is disagreeing with the
administrative judge’s finding that she failed to make a nonfrivolous allegation
that the agency official who took the personnel actions at issue had any
knowledge of the appellant’s protected activity. PFR File, Tab 1 at 4. An
appellant’s mere disagreement with the administrative judge’s findings does not
warrant reversal of an initial decision. Trufant v. Department of the Air Force ,
87 M.S.P.R. 627, ¶ 10, aff’d per curiam , 20 F. App’x 887 (Fed. Cir. 2001).
Accordingly, we decline to disturb the administrative judge’s findings on review.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practices described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Hale_StaceySF-1221-19-0454-W-1__Final_Order.pdf | 2024-07-11 | STACEY HALE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-1221-19-0454-W-1, July 11, 2024 | SF-1221-19-0454-W-1 | NP |
1,005 | https://www.mspb.gov/decisions/nonprecedential/Munene_Jim_K_DE-0752-19-0419-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JIM K. MUNENE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DE-0752-19-0419-I-1
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jim K. Munene , Sierra Vista, Arizona, pro se.
Eric McNeilus , Esquire, Tucson, Arizona, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review, the appellant argues that the
administrative judge made erroneous findings as to the merits of the action, the
appellant’s affirmative defenses, and the reasonableness of the penalty.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Munene_Jim_K_DE-0752-19-0419-I-1__Final_Order.pdf | 2024-07-11 | JIM K. MUNENE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0752-19-0419-I-1, July 11, 2024 | DE-0752-19-0419-I-1 | NP |
1,006 | https://www.mspb.gov/decisions/nonprecedential/Soucie_Patricia_V_PH-0752-19-0262-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA V. SOUCIE,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
PH-0752-19-0262-I-1
DATE: July 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Patricia V. Soucie , Gardiner, Maine, pro se.
Jill L. Steinberg , Boston, Massachusetts, for the agency.
Rachel H. Park , New York, New York, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely filed without good cause shown. For
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was a Dental Assistant with the National Disaster Medical
System of the Department of Health and Human Services. Initial Appeal File
(IAF), Tab 8 at 46. On March 5, 2018, the agency proposed to remove the
appellant based on her inability to perform the essential duties of her position due
to her diabetes. Id. at 35-38. The appellant subsequently contacted the Equal
Employment Opportunity (EEO) office of the agency, and on June 25, 2018, she
filed a formal complaint of discrimination against the agency. IAF, Tab 1 at 16.
On July 18, 2018, the agency issued its decision upholding her removal. IAF,
Tab 8 at 27-30. In different sections, the decision letter noted that it would
become effective on August 2 and August 18, 2018.2 Id. at 28-29. The decision
letter further informed her that she could (1) appeal her removal to the Board,
(2) file a formal complaint of discrimination through the administrative EEO
process, or (3) seek corrective action with the Office of Special Counsel. Id.
at 29-30. The decision letter did not inform her of her rights or deadlines to file
matters in mixed case complaints.
After receiving the letter of decision on her removal, the appellant amended
her EEO complaint to include the letter. Id. at 18. On July 27, 2018, the
agency’s EEO office dismissed her claim because the agency’s removal action
had not yet been effected, and thus was a “proposal to take an action” that had not
yet “materialize[d].” Id. at 18-19. This dismissal similarly did not inform the
appellant of her mixed case rights or how to file an appeal with the Board.
The appellant filed an appeal with the Board on May 10, 2019. IAF, Tab 1
at 1-7, Tab 3 at 2. The administrative judge ordered the appellant to file evidence
2 The appellant’s removal was ultimately effected on August 18, 2018. IAF, Tab 8
at 46.2
and argument showing that her appeal was timely or that good cause existed for
the delay. IAF, Tab 3 at 2-3. In response, the appellant claimed that she did not
learn that she was fully removed from the agency’s “team roster” until early
January 2019. IAF, Tab 7 at 4. She stated she had been “actively seeking help”
from the agency’s EEO office “with no avail.” Id. She further claimed that when
she contacted the office of her Senator, as well as other agency personnel, on
unspecified dates, they suggested she contact the Board. IAF, Tab 1 at 7, Tab 7
at 4.
On June 22, 2019, the administrative judge issued an initial decision
dismissing the appellant’s removal appeal as untimely filed. IAF, Tab 11, Initial
Decision (ID) at 1-5. The administrative judge found that the appellant’s appeal
was untimely by approximately 8 months. ID at 2. She further found that the
appellant’s explanation that she was seeking help from the EEO office, and that
she did not learn she was off the team roster until January 2019, was insufficient
to demonstrate the due diligence and ordinary prudence requisite to establish
good cause for an untimely filing. ID at 3-4.
The appellant filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1-2.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s Board appeal was untimely.
If an appellant files a timely mixed case complaint with her agency, a
Board appeal must be filed within 30 days after the appellant received the agency
resolution or final decision on the discrimination issue. 5 C.F.R. § 1201.154(b)
(1). A mixed case complaint is a complaint of employment discrimination filed
with a Federal agency relating to or stemming from an action that can be appealed
to the Board. Moore v. Department of Justice , 112 M.S.P.R. 382, ¶ 4 n.4 (2009);
29 C.F.R. § 1614.302(a)(1). The appellant’s case was a mixed case because, at
the time the agency issued the dismissal letter, she had been issued a letter of3
decision on her removal that was appealable to the Board. IAF, Tab 8 at 27,
30-32. The agency’s EEO office issued its dismissal letter regarding her mixed
case complaint on July 27, 2018. Id. at 18-21. The dismissal letter was delivered
to the appellant’s address on August 4, 2018. Id. at 22. Thus, the deadline to file
her Board appeal was 30 days later, or September 4, 2018.3 Accordingly, her
Board appeal on May 14, 2019, was untimely by approximately 8 months.
The appellant has shown good cause for the untimely filing of her initial appeal.
The Board will dismiss an untimely appeal unless the appellant establishes
good cause for the delayed filing. Kirkland v. Department of Homeland Security ,
119 M.S.P.R. 74, ¶ 5 (2013). In order to establish good cause for the untimely
filing of an appeal, a party must show that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Id. Generally, an
agency’s failure to notify an employee of her Board appeal rights when such
notification is required constitutes good cause for late filing. Id., ¶ 6. When an
appellant files a mixed case complaint with an agency’s EEO office, the agency
must advise the appellant of her right to appeal the matter to the Board following
either a final agency decision or 120 days after the date of filing if no decision is
issued. 29 C.F.R. § 1614.302(d)(1), (3). Here, neither the removal decision letter
nor the dismissal letter mentioned the appellant’s mixed case rights to pursue the
matter before the Board following a final agency decision from the agency’s EEO
office, as set forth in 5 C.F.R. § 1201.154(b)(1) and required by 29 C.F.R.
§ 1614.302(d)(1). IAF, Tab 8 at 18-21, 27-31. Although the appellant provided
other correspondence she received from the agency’s EEO office, that
correspondence likewise failed to explain her right to appeal to the Board. IAF,
Tab 1 at 15-16, Tab 7 at 27-31. Accordingly, we find that the agency provided
the appellant inadequate notice of her Board appeal rights.
3 The 30-day deadline here actually falls on September 3, 2018. However, because that
date was a Federal holiday, the filing period will include the first workday after that
date. 5 C.F.R. § 1201.23. 4
When an agency provides inadequate notice of Board appeal rights, the
appellant is not required to show that she exercised due diligence in attempting to
discover her appeal rights but rather must show diligence in filing the appeal after
learning that she could. Kirkland, 119 M.S.P.R. 74, ¶ 6. We find that she has.
According to the appellant, she did not learn until January 2019 that she was
formally off the agency’s roster. IAF, Tab 7 at 4.
The appellant’s Senator’s office and other agency personnel suggested she
contact the Board. IAF, Tab 1 at 5, 7, Tab 7 at 4. As described by the appellant,
the guidance she received was, at most, a suggested course of action, and thus did
not trigger the requirement that she exercise due diligence in filing her Board
appeal.4 IAF, Tab 1 at 7, Tab 7 at 36-38; see Mc Clendon v. Office of Personnel
Management, 92 M.S.P.R. 250, ¶¶ 12 -13 (2002) (finding good cause for an
untimely filing when an agency failed to give adequate notice of Board appeal
rights, and the record did not reflect that the appellant was ever actually informed
of such rights). Given the inadequate notice and her pro se status, we find that
the appellant has shown good cause for the untimely filing of her initial appeal.
4 Although the appellant does not state when she received this guidance, it appears that
she first contacted her Senator in March 2019, less than 2 months before she filed the
instant appeal. IAF, Tab 1 at 5, Tab 7 at 36.5
ORDER
For the reasons discussed above, we REMAND this case to the
Northeastern Regional Office for further adjudication in accordance with this
Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Soucie_Patricia_V_PH-0752-19-0262-I-1__Remand_Order.pdf | 2024-07-10 | PATRICIA V. SOUCIE v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. PH-0752-19-0262-I-1, July 10, 2024 | PH-0752-19-0262-I-1 | NP |
1,007 | https://www.mspb.gov/decisions/nonprecedential/Dyer_Carmen_L_CH-1221-20-0266-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARMEN LURENE DYER,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
CH-1221-20-0266-W-1
DATE: July 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jeffrey M. Silverstein , Esquire, Cincinnati, Ohio, for the appellant.
Alana Kitchen , Esquire, Wright-Patterson Air Force Base, Ohio, for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant filed this IRA appeal with the Board, and she requested a
hearing. Initial Appeal File (IAF), Tab 1 at 1-2, 25. Among other things, she
argued that her removal from her Intelligence Analysis Engineer position in
October 2019 constituted reprisal for filing a complaint with the agency’s
Inspector General (IG) in March 2019. Id. at 7-9, 11, 22-25. The appellant’s
IG complaint pertained to her interactions with security personnel on March 19,
2019, who she claimed had misused their authority, issued her an unwarranted
citation, and wasted resources. Id. at 7, 9, 11.
In an Order on Jurisdiction and Proof Requirements, the administrative
judge informed the appellant that there was a question of whether the Board has
jurisdiction over this appeal. She apprised her of the elements and burden of
proving jurisdiction in an IRA appeal and ordered her to file a statement with
accompanying evidence on the jurisdictional issue. IAF, Tab 3. The appellant
did not respond. IAF, Tab 8, Initial Decision (ID) at 5.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. ID at 1,
7. Specifically, the administrative judge found that, although the appellant
proved she exhausted her administrative remedies before the Office of Special
Counsel (OSC), she failed to make a nonfrivolous allegation that she engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(C) by filing an IG complaint. ID
at 3-7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, PFR File, Tab 4, to which the
appellant has replied, PFR File, Tab 5.2
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has established the Board’s jurisdiction over this IRA appeal.
As relevant here, to establish jurisdiction in an IRA appeal, an appellant
must prove by preponderant evidence that she exhausted her administrative
remedies before OSC and make nonfrivolous allegations that (1) she made a
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A).2
Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016),
overruled on other grounds by Requena v. Department of Homeland Security ,
2022 MSPB 39. Once an appellant establishes jurisdiction over an IRA appeal,
she is entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence. Rebstock Consolidation v. Department of Homeland
Security, 122 M.S.P.R. 661, ¶ 9 (2015). For the following reasons, we find that
the appellant has established jurisdiction over this IRA appeal.
The parties do not dispute, and we discern no reason to disturb, the
administrative judge’s finding that the appellant proved she exhausted her
administrative remedies before OSC. PFR File, Tab 1 at 4-6, Tab 4; ID at 5.
Thus, the dispositive jurisdictional issue on review is whether the appellant has
made nonfrivolous allegations that she made a whistleblowing disclosure or
engaged in a protected activity that was a contributing factor in her removal.3 See
Corthell, 123 M.S.P.R. 417, ¶ 8. To satisfy the contributing factor criterion at the
jurisdictional stage, an appellant only need raise a nonfrivolous allegation that the
fact of, or content of, the whistleblowing disclosure or protected activity was one
2 The National Defense Authorization Act for Fiscal Year 2018 (NDAA),
Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017, after
some of the events alleged in this appeal occurred. Section 1097 of the NDAA amended
various provisions of title 5 of the U.S. Code. Our decision to remand this appeal
would be the same under both pre- and post-NDAA law.
3 A removal is a personnel action identified in 5 U.S.C. § 2302(a)(2)(A)(iii).3
factor that tended to affect the personnel action in any way. See Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 13 (2016). Under the
knowledge/timing test, an appellant may nonfrivolously allege that the disclosure
or activity was a contributing factor in a personnel action through circumstantial
evidence, such as evidence that the official who took the personnel action knew
of the disclosure or activity and that the personnel action occurred within a period
of time such that a reasonable person could conclude that the disclosure or
activity was a contributing factor in the personnel action. See 5 U.S.C. § 1221(e)
(1); Salerno, 123 M.S.P.R. 230, ¶ 13 .
Protected activity under 5 U.S.C. § 2302(b)(9)(C) is “cooperating with or
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law.” The appellant
provided a copy of an IG complaint that she filed in March 2019, concerning her
interactions with security personnel on March 19, 2019. IAF, Tab 1 at 11.
Therefore, we find that the appellant has nonfrivolously alleged that she engaged
in protected activity under 5 U.S.C. § 2302(b)(9)(C) by filing an IG complaint.4
Regarding the contributing factor criterion, the appellant’s October 2019
removal occurred approximately 7 months after she filed the IG complaint in
March 2019. IAF, Tab 1 at 11, 22-24. Thus, the timing component of the
knowledge/timing test is satisfied. See Salerno, 123 M.S.P.R. 230, ¶ 14
(observing that the Board has held that a personnel action taken within
approximately 1 to 2 years of the appellant’s disclosures satisfies the timing
component of the knowledge/timing test). In addition, the record reflects that, in
4 We decline to address the parties’ arguments regarding the substance of the
appellant’s disclosures to the IG. Under the broadly worded provision of 5 U.S.C.
§ 2302(b)(9)(C), disclosures of information to an agency’s IG are protected regardless
of their content, as long as they are made “in accordance with applicable provisions of
law.” PFR File, Tab 1 at 4-6, Tab 4 at 4-9; see Fisher v. Department of the Interior ,
2023 MSPB 11, ¶ 8. However, the nature of her disclosures to the IG may be relevant
at the merits stage of the appeal. See id., ¶ 8 n.1.4
deciding to remove the appellant in October 2019, the deciding official
considered the appellant’s September 2019 written reply in which she both
discussed and included a copy of her IG complaint. IAF, Tab 5 at 23-24, 26-27,
30, 33-37. Thus, we find that the appellant has nonfrivolously alleged that the
deciding official had knowledge of the appellant’s IG complaint. We further find
that, under the knowledge/timing test, the appellant has nonfrivolously alleged
that her IG complaint was a contributing factor in her removal.
Accordingly, because the appellant exhausted her administrative remedies
before OSC and has nonfrivolously alleged that she engaged in a protected
activity that was a contributing factor in her removal , we remand this IRA appeal
for the appellant’s requested hearing and a decision on the merits of her claim.
Specifically, on remand, the administrative judge shall adjudicate the appellant’s
claim that her removal constituted reprisal for a March 2019 IG complaint that
she filed concerning her interactions with security personnel on March 19, 2019.
The parties’ remaining arguments and submission of evidence on review do not
warrant a different outcome.
On review, both parties have raised arguments regarding the merits of the
agency’s removal action. PFR File, Tab 1 at 4-6, Tab 4 at 4-9. For the first time
on review, the agency has submitted a decision from the State of Ohio
Unemployment Compensation Review Commission that postdates the close of the
record before the administrative judge.5 PFR File, Tab 4 at 5 & n.2, 18-22; IAF,
Tab 3 at 1, 8. The agency claims that this new evidence is relevant because the
commission held that the appellant was discharged by the agency “for just cause
in connection with work.” PFR File, Tab 4 at 5, 7-9, 20-21. We find that the
parties’ arguments and evidence regarding the merits of the agency’s removal
action are immaterial to the jurisdictional issue currently before the Board.
5 In addition, the agency has resubmitted its narrative response on the jurisdictional
issue. PFR File, Tab 4 at 13-16; IAF, Tab 5 at 11-14.5
Moreover, the Board lacks general jurisdiction to decide the merits of the
underlying personnel action in the context of an IRA appeal. See Marren v.
Department of Justice , 51 M.S.P.R. 632, 638-39 (1991), aff’d, 980 F.2d 745 (Fed.
Cir. 1992) (Table), and modified on other grounds by Robinson v. U.S. Postal
Service, 63 M.S.P.R. 307, 323 n.13 (1994). Nevertheless, on remand, the
administrative judge should consider the parties’ arguments and evidence to the
extent that they are relevant or material to the appellant’s reprisal claim. See id.
To the extent that the appellant is arguing that the administrative judge is
biased because she “relied upon her selective view” to close the case prematurely,
we find that this is an insufficient basis to rebut the presumption of honesty and
integrity that accompanies an administrative judge. PFR File, Tab 1 at 6; see
Mattil v. Department of State , 118 M.S.P.R. 662, ¶ 31 n.5 (2012) (finding no
reason to order an IRA appeal reassigned to another administrative judge on
remand based on the appellant’s claim of adjudicatory bias). In sum, we have
considered the parties’ remaining arguments and submission of evidence on
review but find they do not warrant a different outcome of the appeal.6
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Dyer_Carmen_L_CH-1221-20-0266-W-1_Remand_Order.pdf | 2024-07-10 | CARMEN LURENE DYER v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. CH-1221-20-0266-W-1, July 10, 2024 | CH-1221-20-0266-W-1 | NP |
1,008 | https://www.mspb.gov/decisions/nonprecedential/Idahosa_Robert_O_AT-1221-19-0535-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT O. IDAHOSA,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-19-0535-W-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert O. Idahosa , Columbus, Georgia, pro se.
Nic Roberts , Fort Benning, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant exhausted his administrative remedies with respect to
additional personnel actions, disclosures, and protected activity, address those
personnel actions, disclosures, and activity, supplement the administrative judge’s
analysis regarding contributing factor, and vacate her determination that the
agency met its burden by clear and convincing evidence, we AFFIRM the initial
decision.
BACKGROUND
The appellant was an Equal Employment Opportunity (EEO) specialist at
the agency’s Fort Benning, Georgia location. Initial Appeal File (IAF), Tab 9
at 14. On July 27, 2016, the agency initiated an AR 15-6 investigation into the
appellant based on allegations that he had engaged in the unauthorized practice of
law and used his public office for gain. IAF, Tab 25 at 14. This investigation
was completed in August 2016. Id. In February 2017, the appellant’s supervisor
placed him in a non-duty paid administrative leave status until further notice for
“insubordinate conduct.”2 Id. at 70.
2 The record does not describe the nature of the appellant’s insubordinate conduct, and
it is unclear whether such conduct was related to the results of the AR 15-6
investigation. Moreover, it is unclear from the record as to whether his placement on2
Subsequently, in March 2017, the appellant filed a complaint with the
Office of Inspector General (OIG) accusing his supervisor of falsifying time and
attendance records. Id. at 72-73. In his complaint, he also referenced his
placement on administrative leave and further accused his supervisor of wasting
money and mismanagement. Id. at 73.
On August 21, 2017, the agency proposed to remove the appellant based on
a charge of conduct unbecoming of a Federal employee. Id. at 78. The charge
included three specifications: conducting private business from his Government
office; using his Government computer for personal matters; and representing
himself as an attorney despite not being a licensed attorney. Id. After the
appellant replied to the proposal, the agency sustained the charge and removed
him, effective February 6, 2018. Id. at 82-83.
After his removal, the appellant filed a complaint with the Office of Special
Counsel (OSC).3 Id. at 85. He asserted to OSC that, in retaliation for his OIG
complaint, a complaint to his second- and third-line supervisors, and unspecified
EEO complaints, he was placed on administrative leave status and later removed.
Id. at 87-89; IAF, Tab 12 at 22. The appellant appears to have subsequently
amended his OSC complaint to allege retaliation by denying him promotions and
not providing performance evaluations for 2016 and 2017, as well as retaliation
for filing a different OSC complaint in 2014. IAF, Tab 12 at 18-19, 22-23. In
April 2019, OSC closed its inquiry into the appellant’s allegations of
whistleblower retaliation and notified him of his right to seek corrective action
from the Board. IAF, Tab 25 at 91.
Following OSC’s closeout letter, the appellant filed an IRA appeal with the
Board. IAF, Tab 1. The administrative judge found that the appellant established
administrative leave ended prior to his removal.
3 The appellant’s original complaint with OSC appears to be a disclosure of wrongdoing
on the part of his supervisor, again accusing her of time fraud. IAF, Tab 25 at 87. OSC
declined to investigate his disclosure of time fraud but forwarded his complaint to its
Complaints Examining Unit for consideration of whistleblower retaliation. Id. at 88. 3
Board jurisdiction over his IRA appeal. IAF, Tab 13. After the appellant
withdrew his request for a hearing, the administrative judge issued an initial
decision denying the appellant’s request for corrective action. IAF, Tab 22,
Tab 27, Initial Decision (ID) at 1, 10.
The administrative judge found, based in part on the agency’s stipulation,
that the appellant had exhausted his administrative remedies with OSC regarding
some, but not all, of his claimed personnel actions and disclosures. ID at 3-5.
She then found that the appellant failed to establish a reasonable belief that he
made a protected disclosure. ID at 6-7. Even assuming he made a protected
disclosure, she nonetheless found that he failed to establish that it was a
contributing factor in a personnel action. ID at 7-8. Finally, she found that, even
if the appellant established contributing factor, the agency successfully
demonstrated by clear and convincing evidence that it would have taken the
personnel action in the absence of any protected activity. ID at 9-10.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He alleges generally that the administrative judge abused her
discretion, failed to consider material facts, inappropriately weighed his
supervisor’s sworn statement, did not follow appropriate procedures, and denied
him due process. Id. at 2-4. He further argues that the administrative judge
failed to consider the allegations about his supervisor’s time fraud and review the
agency’s procedural errors and denial of due process, and asserts that there is new
evidence altering the outcome of his appeal.4 Id. The agency has responded to
his petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
In an IRA appeal, the Board lacks the authority to adjudicate the merits of
the underlying personnel action; rather, our jurisdiction is limited to adjudicating
the whistleblower allegations. Lu v. Department of Homeland Security ,
4 The appellant twice references new and material evidence on review. PFR File, Tab 1
at 3-4. However, his petition contains no attachments of this new evidence. 4
122 M.S.P.R. 335, ¶ 7 (2015). The Board has jurisdiction over an IRA appeal if
the appellant has exhausted his administrative remedies before OSC and makes
nonfrivolous allegations that he engaged in protected activity or made a protected
disclosure, and that the disclosure or activity was a contributing factor in the
agency’s decision to take a personnel action. Graves v. Department of Veterans
Affairs, 123 M.S.P.R. 434, ¶ 12 (2016). After establishing the Board’s
jurisdiction in an IRA appeal, the appellant must then establish a prima facie case
of whistleblower retaliation by proving by preponderant evidence that he made a
protected disclosure or engaged in protected activity that was a contributing
factor in a personnel action taken against him.5 Lu, 122 M.S.P.R. 335, ¶ 7;
see 5 U.S.C. § 1221(e)(1).
The appellant exhausted his administrative remedies with OSC.
Despite the agency’s stipulation that the appellant exhausted his
administrative remedies with OSC, the administrative judge found that the
appellant only exhausted his administrative remedies regarding his OIG
complaint, placement on administrative leave, and removal. ID at 3 n.2, 4-5;
IAF, Tab 24 at 1. She found that the appellant failed to exhaust with OSC the
agency’s alleged failure to provide him 2016 and 2017 performance evaluations,
as well as his nonselection for promotions. ID at 4-5. She further found that the
appellant did not exhaust his remedies regarding the 2014 disclosure to OSC. ID
at 5. The appellant does not specifically challenge these findings on review.
Nonetheless, we disagree with the administrative judge and vacate her findings to
the contrary. See Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313,
¶ 5 (2010) (holding that the issue of the Board’s jurisdiction may be raised sua
sponte at any time); Shannon v. Department of Homeland Security , 100 M.S.P.R.
5 Preponderant evidence is that degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).5
629, ¶ 18 (2005) (finding that the Board has an interest in ensuring that
jurisdictional determinations are correct).6
The Board, in Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The
requirements are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. The Board’s jurisdiction is limited to those issues that
were previously raised with OSC. However, appellants may give a more detailed
account of their whistleblowing activities before the Board than they did to OSC.
Id. Appellants may demonstrate exhaustion through their initial OSC complaint;
evidence that they amended the original complaint, including but not limited to
OSC’s determination letter and other letters from OSC referencing any amended
allegations; and their written responses to OSC referencing the amended
allegations. Id. Appellants also may establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
they raised with OSC the substance of the facts in the Board appeal. Id.
The record here contains a November 2018 email exchange between the
appellant and OSC. IAF, Tab 12 at 18-19. In an email from OSC, the
investigating attorney summarized the alleged personnel actions as being “not
given performance evaluations for 2016 and 2017, that you were denied
promotions, that you were placed on administrative leave, and that you were
ultimately terminated.” Id. at 18. The OSC attorney further recognized that the
appellant was alleging retaliation for filing an OSC complaint in 2014. Id. The
appellant responded to a series of questions about his allegations, and included an
6 The administrative judge, in her close of record conference, appears to have limited
the issues to whether the appellant made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) and whether the disclosure was a factor in his removal. IAF, Tab 24
at 1-2. However, the administrative judge then addressed additional issues in the initial
decision, including the appellant’s alleged missing performance evaluations,
nonselection for promotions, and placement on administrative leave. ID at 4-5.
Because the administrative judge addressed these issues in the initial decision, we find
it appropriate to address them on review. See Simnitt, 113 M.S.P.R. 313, ¶ 5.6
allegation that he made a protected disclosure to his second- and third-line
supervisors regarding his first-line supervisor’s time fraud. Id. at 22.
We find that the appellant provided adequate detail and information to give
OSC a sufficient basis to pursue an investigation. Accordingly, we find that the
appellant exhausted his administrative remedies with OSC for the following
personnel actions: his placement on administrative leave; his removal; the
agency’s failure to provide 2016 and 2017 performance evaluations; and his
nonselection for promotions. Moreover, we find that he sufficiently exhausted
the following disclosures: his complaint to the OIG, his 2014 OSC complaint,
and his complaint to his second- and third-line supervisors regarding his first-line
supervisor’s alleged time fraud.
The appellant engaged in protected activity.
The administrative judge found that the appellant failed to establish that he
made a protected disclosure.7 ID at 7. She did not explicitly address whether the
appellant engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C). The
appellant does not specifically challenge these findings on review. Nonetheless,
we address them here. See 5 C.F.R. § 1201.115(e).
After establishing the Board’s jurisdiction, an appellant must prove by
preponderant evidence that he made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9).
Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016),
overruled on other grounds by Requena v. Department of Homeland Security ,
2022 MSPB 39. A protected disclosure is a disclosure of information that an
appellant reasonably believes evidences any violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety. Bradley v.
Department of Homeland Security , 123 M.S.P.R. 547, ¶ 7 (2016). The proper test
7 The administrative judge did not address whether the appellant’s 2014 OSC disclosure
or the disclosure to his second- and third-line supervisors was protected. 7
for determining whether an employee had a reasonable belief that his disclosures
were protected is whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the appellant could
reasonably conclude that the actions evidenced a violation of a law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id.
Moreover, under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected
activity when he discloses information to the OIG or OSC in accordance with
applicable provisions of law. Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 12 (2016). Indeed, section 2302(b)(9)(C) covers those
employee disclosures to an OIG or OSC that do not meet the precise terms of the
actions described in section 2302(b)(8). Special Counsel v. Hathaway ,
49 M.S.P.R. 595, 612 (1991), abrogated on other grounds by Special Counsel v.
Santella, 65 M.S.P.R. 452 (1994).
The appellant here exhausted three protected disclosures and activities, and
we address them in turn. First, the appellant filed a complaint with the OIG. The
administrative judge found that the content of his disclosure was not protected
because the appellant lacked a reasonable belief that he had disclosed
wrongdoing. ID at 7. However, beyond the content of the disclosure itself,
section 2302(b)(9)(C) protects disclosures of information to the OIG of any
agency, and the Board has recognized that disclosures to the OIG are protected.
5 U.S.C. § 2302(b)(9)(C); Rumsey v. Department of Justice , 120 M.S.P.R. 259,
¶ 18 (2013). The appellant here provided a clear and unambiguous copy of his
2017 complaint to the OIG. IAF, Tab 25 at 72-73. Accordingly, we find that the
appellant has demonstrated by preponderant evidence that he engaged in
protected activity by filing the 2017 OIG complaint.
Second, the appellant claims he filed a complaint with OSC in 2014,
alleging fraud, waste, and abuse by his then first- and second-line supervisors.
IAF, Tab 12 at 18-19, 23, Tab 26 at 5. The administrative judge, finding that this
allegation was not exhausted, did not address whether this was protected. ID at 5.8
Upon review of the record, although he raised this 2014 complaint in his most
recent OSC complaint, the appellant appears to have only provided this
information as background information before the Board. IAF, Tab 6 at 4-5,
Tab 26 at 5. Despite being represented in his Board appeal, the appellant does
not clearly set forth an argument that his 2014 OSC complaint was a protected
disclosure or activity that led to a personnel action. Rather, it is presented as a
background matter in his statement of facts. IAF, Tab 6 at 4-5, Tab 26 at 5.
Accordingly, we decline to address whether it was protected.
Finally, the appellant alleges that he disclosed his supervisor’s time fraud
to his second- and third-line supervisors. IAF, Tab 12 at 22, Tab 26 at 5. He
repeats this argument on review, again arguing the merits of his supervisor’s
alleged time fraud. PFR File, Tab 1 at 2. The administrative judge did not
directly address this complaint, but the substance of the disclosure is the same as
that which was made to the OIG, which the administrative judge addressed. ID
at 7; IAF, Tab 25 at 72-73. For this disclosure to be protected under
section 2302(b)(8), the appellant must demonstrate by preponderant evidence that
he had a reasonable belief that his disclosure evidenced a violation of a law, rule,
or regulation. See Bradley, 123 M.S.P.R. 547, ¶ 7. We find that he has not done
so.
According to the appellant, he disclosed that his first-line supervisor was
arriving late to work without using leave. IAF, Tab 26 at 5. The appellant asserts
that his supervisor’s start time was 8:00 a.m., but that she arrived between
8:20 a.m. and 9:45 a.m. on various days. Id. at 5-6. According to her time sheets
from the record below, she reported working 8 hours on the days in question. Id.
at 18-20. Although addressing his similar complaint to the OIG and not to his
supervisors, the administrative judge found that this disclosure of information
was not protected because the appellant did not establish that he had a reasonable
belief that it evidenced a violation of a law, rule, or regulation. ID at 6-7. As the
administrative judge observed, the appellant made no claim as to when his9
supervisor left on the days in question. ID at 7. Nor did the appellant claim that
his supervisor was prohibited from extending her workday if she arrived late, or
that her workday started firmly at 8:00 a.m. Id. The records provided by the
appellant merely establish that his supervisor claimed that she worked 8 hours on
the days in question. IAF, Tab 26 at 18-20. Based on the foregoing, we find that
the appellant has failed to prove by preponderant evidence that he had a
reasonable belief that this information, which he disclosed to his second - and
third-line supervisors, evidenced a violation of any law, rule, or regulation, or any
of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Cf. D’Elia v.
Department of the Treasury , 65 M.S.P.R. 540, 546-47 (1994) (finding a
reasonable belief of time fraud when there was an unreasonable excuse for the
absence from the office, unrebutted corroborating testimony of the time fraud
scheme, and an admission that the individual’s time sheet did not reflect accurate
times). Accordingly, this is not a protected disclosure.
Although we disagree with the administrative judge’s analysis of the
exhaustion and the protected activity requirements, as set forth below, we
nonetheless agree that the appellant failed to establish a prima facie case of
whistleblower retaliation. Accordingly, these errors were harmless. See Panter
v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
The appellant failed to establish that his protected activity was a contributing
factor in any personnel action.
The administrative judge found that the appellant failed to meet his burden
of proof regarding contributing factor. ID at 7-8. The appellant on review
challenges the administrative judge’s finding that the proposing official’s sworn
statement was more credible than his allegation that she was aware of his OIG
complaint. PFR File, Tab 1 at 2. 10
A protected disclosure or activity is a contributing factor if it affects an
agency’s decision to take a personnel action. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 14 (2012). The typical way to establish contributing factor
is through the knowledge/timing test, when an employee shows that the official
taking the personnel action knew of the disclosure and that the personnel action
occurred within a period of time such that a reasonable person could conclude
that the disclosure was a contributing factor in the personnel action. Id. The
administrative judge found that the appellant failed to establish the knowledge
prong of the knowledge/timing test, crediting the proposing official’s sworn
statement that she had no such knowledge. ID at 8. We agree.
Because no hearing was held, the administrative judge applied the relevant
factors in weighing the parties’ hearsay evidence. ID at 8 (citing Borninkhof v.
Department of Justice , 5 M.S.P.R. 77, 88-89 (1981)); see Elder v. Department of
the Air Force, 124 M.S.P.R. 12, ¶ 22 (2016). Although hearsay evidence such as
the proposing official’s statement may be admissible in Board proceedings,
assessment of the probative value of hearsay evidence necessarily depends on the
circumstances of each case. Borninkhof, 5 M.S.P.R. at 83. The Board generally
evaluates the probative value of hearsay by considering various factors that
include the availability of persons with firsthand knowledge to testify, whether
the out-of-court statements were sworn, whether the declarants were disinterested
witnesses to the events and whether their statements were routinely made, the
consistency of the out-of-court statements with other statements and evidence,
whether there is corroboration or contradiction in the record, and the credibility
of the out-of-court declarant. Adamsen v. Department of Agriculture ,
116 M.S.P.R. 331, ¶ 16 (2011).
The proposing official here, who was also the appellant’s first-line
supervisor, submitted a sworn statement declaring that she was unaware of the
appellant’s OIG complaint when she proposed his removal. IAF, Tab 21 at 10.
She further declared that at no point in time did the appellant’s second-line11
supervisor inform her that the appellant had filed a complaint with the OIG. Id.
at 11. The appellant, by contrast, argued in an unsworn pleading submitted by his
attorney that the proposing official became aware of his OIG complaint when the
OIG office contacted his second-line supervisor, who in turn informed the
proposing official about the complaint. IAF, Tab 26 at 6, 12. The appellant’s
attorney indicated that the facts set forth in the pleading were not based on his
personal knowledge. Id. at 3.
Statements made by a party’s attorney or representative in a pleading are
not evidence. Rose v. Department of Defense , 118 M.S.P.R. 302, ¶ 10 (2012).
Accordingly, we give little weight to the facts set forth in this pleading. On the
contrary, the sworn statement of the proposing official, with firsthand knowledge,
is of more probative value. Moreover, as the administrative judge noted, the
appellant has not alleged that the deciding official knew of his OIG complaint.
ID at 8. The appellant on review merely disagrees with the administrative judge’s
weighing of the hearsay evidence. PFR File, Tab 1 at 2; see Trufant v.
Department of the Air Force , 87 M.S.P.R. 627, ¶ 10 (finding the mere
disagreement with an administrative judge’s findings and credibility
determinations does not warrant full review of the record by the Board), aff’d per
curiam, 20 F. App’x 887 (Fed. Cir. 2001). We therefore find no error in the
administrative judge’s weighing of the conflicting statements and agree that the
appellant has failed to establish the knowledge prong of the knowledge/timing
test as it relates to any of the personnel actions at issue in this case.
The administrative judge recognized that there is an alternative way to
prove contributing factor, but declined to address this method. However, if an
administrative judge determines that an appellant has failed to satisfy the
knowledge/timing test, she is required to consider other evidence, such as
evidence pertaining to the strength or weakness of the agency’s reasons for taking
the personnel action, whether the whistleblowing was personally directed at the
proposing or deciding officials, and whether these individuals had a desire or12
motive to retaliate against the appellant. Dorney, 117 M.S.P.R. 480, ¶ 15.
Accordingly, we modify the initial decision to address this alternative method.
The agency presented strong reasoning for taking the personnel action,
citing the appellant’s use of his Government office and computer to conduct
private business and his wrongful representation of himself as an attorney when
he was not so licensed. IAF, Tab 25 at 78. This was generally corroborated by
the findings of the AR 15-6 investigation and other documentation in the record.
Id. at 14-16, 30-54, 64-68. However, the appellant’s protected activity was
personally directed at the proposing official, his direct supervisor. IAF, Tab 26
at 15-16. Without knowledge of said activity, as discussed above, we find that
the proposing and deciding official had little desire or motive to retaliate against
the appellant. In this case, given the strength of the agency’s reasoning behind
the personnel action, and the fact that it is ultimately the appellant’s burden of
proof, we find that he has failed to prove contributing factor under the alternative
method.
We vacate the administrative judge’s findings on the agency’s affirmative
defense.
Despite finding that the appellant failed to establish his prima facie case of
whistleblower retaliation, the administrative judge nonetheless found that the
agency met its burden of proving, by clear and convincing evidence, that it would
have taken the same personnel actions in the absence of any whistleblowing. ID
at 8-10. The appellant does not specifically challenge this finding on review.
When an appellant meets his burden to establish a prima facie case of
reprisal for whistleblowing, the burden shifts to the agency to prove by clear and
convincing evidence that it would have taken the same personnel actions in the
absence of the appellant’s whistleblowing. Scoggins, 123 M.S.P.R. 592, ¶ 26.
Given the administrative judge’s correct finding that the appellant failed to prove
contributing factor, however, it was inappropriate for her to determine whether
the agency proved by clear and convincing evidence that it would have taken the13
same action in the absence of the appellant’s whistleblowing. Id., ¶ 28;
see Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014)
(stating that the Board may not proceed to the clear and convincing evidence test
unless it has first determined that the appellant established his prima facie case),
aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the
administrative judge’s findings that the agency proved by clear and convincing
evidence that it would have removed the appellant absent his whistleblowing.
The appellant’s remaining arguments do not provide a basis for reversing the
initial decision.
The appellant on review makes numerous generalized arguments
challenging the initial decision, including that the administrative judge abused her
discretion, failed to consider material facts, did not follow appropriate
procedures, denied him due process, and failed to review the agency’s procedural
errors. PFR File, Tab 1 at 2-4. However, he has not provided any specifics to
support these arguments, such as what material facts were not considered, what
procedures were not followed, or how the administrative judge abused her
discretion or denied him due process. Without any specifics, the appellant is, in
essence, merely disagreeing with the administrative judge’s conclusions.
See Trufant, 87 M.S.P.R. 627, ¶ 10. To the extent that the appellant is asserting
that the agency committed harmful error or denied him due process, such claims
cannot be raised in an IRA appeal. See Hooker v. Department of Veterans
Affairs, 120 M.S.P.R. 629, ¶ 5 (2014); Hugenberg v. Department of Commerce ,
120 M.S.P.R. 381, ¶ 24 (2013). Accordingly, the appellant has presented no basis
to reverse the initial decision. 14
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any16
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s17
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Idahosa_Robert_O_AT-1221-19-0535-W-1__Final_Order.pdf | 2024-07-10 | ROBERT O. IDAHOSA v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-19-0535-W-1, July 10, 2024 | AT-1221-19-0535-W-1 | NP |
1,009 | https://www.mspb.gov/decisions/nonprecedential/McGary_Li_L_SF-0752-19-0324-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LI LI MCGARY,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
SF-0752-19-0324-I-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant.
Karen D. Glasgow , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
We note that the Board’s regulations require that a petition for review state
a party’s objections to the initial decision, including all of the party’s legal and
factual arguments, and must be supported by specific references to the record.
5 C.F.R. § 1201.114(b); see Weaver v. Department of the Navy , 2 M.S.P.R. 129,
133 (1980) (before the Board will undertake a complete review of the record, the
petitioning party must explain why the challenged factual determination is
incorrect and identify the specific evidence in the record which demonstrates the
error). However, appellant’s petition for review does not cite to anything from
the record below, aside from the initial decision. Petition for Review File (PFR)
File, Tab 1 at 4-13. In addition, the appellant’s petition largely relies on
decisions that are not binding on the Board in this context, including ones from
the U.S. Courts of Appeals for the Third, Sixth, Seventh, and Eighth Circuits,
along with U.S. District Courts for the Eastern District of New York and the
District of Oregon. Id. at 7, 11-13; see Kerrigan v Department of Labor ,
122 M.S.P.R. 545, ¶ 8 n.1 (2015) (recognizing that decisions by the U.S. Court of
Appeals for the Federal Circuit are binding on the Board, but decisions by other
circuit courts are not), aff’d, 833 F.3d 1349 (Fed. Cir. 2016); Walker v.
Department of the Army , 104 M.S.P.R. 96, ¶ 11 n.2 (2006) (recognizing that
district court decisions are not binding on the Board). 2
Regarding the appellant’s affirmative defenses of race discrimination,
national origin discrimination, and reprisal for engaging in equal employment
opportunity (EEO) activity, Initial Appeal File, Tab 28, Initial Decision (ID)
at 19-23, we note that the administrative judge relied on the analytical framework
provided in Savage v. Department of the Army , 122 M.S.P.R. 612 (2015),
including the requirement that an appellant prove that race, color, religion, sex,
national origin, or EEO activity was a motivating factor in the agency’s action.2
The administrative judge considered but rejected the appellant’s various
arguments concerning discrimination and EEO reprisal. ID at 20-23.
For example, she considered evidence that the appellant disclosed her national
origin to the proposing official, along with the appellant’s allegations of
communications difficulties between her and the proposing official. ID at 20-21.
In addition, the administrative judge considered the fact that the proposing
official learned of the appellant’s EEO activity while she was drafting the
proposed removal. ID at 21. However, she concluded that the appellant failed to
show that her race, national origin, or EEO activity motivated the removal action.
ID at 21-23.
On review, the appellant has only alluded to the allegations she presented
below, including those regarding communication difficulties between her and the
proposing official. PFR File, Tab 1 at 9. Yet the appellant has not identified any
error in the administrative judge’s consideration and analysis of the same. Upon
review of the appellant’s arguments regarding these and her other affirmative
defenses, we find that the appellant’s cursory arguments on review do not require
further consideration.
2 Because we agree that these prohibited considerations played no part in the appellant’s
removal, we do not reach the question of whether discrimination was the but-for cause
of her removal. Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 20-22, 29-33.3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | McGary_Li_L_SF-0752-19-0324-I-1__Final_Order.pdf | 2024-07-10 | LI LI MCGARY v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. SF-0752-19-0324-I-1, July 10, 2024 | SF-0752-19-0324-I-1 | NP |
1,010 | https://www.mspb.gov/decisions/nonprecedential/Heckel_DeanDC-0752-20-0499-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEAN HECKEL,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-20-0499-I-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dean Heckel , Dewey, Arizona, pro se.
Anakah Harrison , Cherry Point, North Carolina, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
On review, the appellant reiterates his assertion that his resignation was
involuntary because it was the product of agency misinformation and coercion.
Petition for Review (PFR) File, Tab 1 at 4, 8-9.2 In addition, he challenges the
administrative judge’s alternative findings that (1) the appellant was not an
“employee” as defined in 5 U.S.C. § 7511(a)(1)(B) and therefore lacked Board
appeal rights; and (2) his appeal was untimely filed and he failed to establish
good cause for the delay. Id. at 4-8.
2 The appellant appears to argue for the first time on review that his resignation was
based on intolerable working conditions. PFR File, Tab 1 at 8. Because the issue of the
Board’s jurisdiction is always before the Board, we have considered this assertion on
review. See Poole v. Department of the Army , 117 M.S.P.R. 516, ¶ 9 (2012 ). The
appellant asserts that the record reflects that he was displeased with his work
environment. PFR File, Tab 1 at 8. However, even if true, his allegations do not show
that his working conditions were so intolerable as to compel a reasonable person to
resign. See Brown v. U.S. Postal Service , 115 M.S.P.R. 609, ¶ 15 (2011 ) (stating that
an employee is not guaranteed a stress-free work environment), aff’d per curiam, 469 F.
App’x 852 (Fed. Cir. 2012); see also Miller v. Department of Defense , 85 M.S.P.R. 310,
¶ 32 (2000) (stating that dissatisfaction with work assignments, a feeling of being
unfairly criticized, or difficult or unpleasant working conditions are generally not so
intolerable as to compel a reasonable person to resign). 2
The appellant has not provided a basis for disturbing the administrative
judge’s well-reasoned finding that his resignation was not involuntary. Initial
Appeal File, Tab 15, Initial Decision at 4-8. In light of this finding, we need not
reach the issue of the timeliness of the appeal. See Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501, ¶ 16 (2007) (stating that, when the Board
clearly lacks jurisdiction over an appeal, and when the record suggests that the
question of timeliness is close, the better practice is to address and decide the
jurisdictional issue). Although the appellant argues that the administrative judge
erred in finding that he lacked Board appeal rights, he has failed to provide a
reason for disturbing this well-reasoned determination. We therefore find that the
administrative judge properly dismissed the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Heckel_DeanDC-0752-20-0499-I-1__Final_Order.pdf | 2024-07-10 | DEAN HECKEL v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-20-0499-I-1, July 10, 2024 | DC-0752-20-0499-I-1 | NP |
1,011 | https://www.mspb.gov/decisions/nonprecedential/Quasney_HollyPH-0752-18-0163-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOLLY QUASNEY,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-18-0163-I-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tyler Sroufe , Esquire, Dallas, Texas, for the appellant.
Andrew Linenberg , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the agency established nexus between the appellant’s proven misconduct
and the efficiency of the service and to clarify the appellant’s burden for proving
her affirmative defenses of sex and disability discrimination, we AFFIRM the
initial decision.
BACKGROUND
The agency removed the appellant from her GS-12 Supervisory
Management Analyst position based on a charge of lack of candor after she
submitted two pieces of fraudulent medical documentation in support of a request
for extended sick leave. Initial Appeal File (IAF), Tab 11 at 18-36. The
appellant appealed her removal to the Board. IAF, Tab 1. In an initial decision
issued based on the written record because the appellant withdrew her request for
a hearing, id. at 2; IAF, Tab 23 at 4, the administrative judge found that the
agency proved its charge by preponderant evidence, the appellant failed to prove
her affirmative defenses of sex and disparate treatment disability discrimination,
and the penalty of removal was reasonable, IAF, Tab 37, Initial Decision (ID)
at 23-40.2
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded in opposition to the
petition for review.2 PFR File, Tab 9.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge of lack of candor by preponderant evidence.
The appellant contends on review that the administrative judge erred in
sustaining the charge. The administrative judge thoroughly considered the
appellant’s various, and sometimes contradictory, explanations behind the
submission of the two documents in question and determined that they were “so
implausible and lacking in credibility as to border on being a lack of candor to the
Board.” ID at 25-31. We find that, contrary to the appellant’s allegations on
review, the administrative judge properly considered the Hillen factors.3
Furthermore, the administrative judge’s thorough analysis in the initial decision
reflects that he applied the correct legal standard, considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions; we discern
no reason to reweigh the evidence or substitute the Board’s own judgment on
credibility issues. See Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987). Thus, the administrative judge properly found that
the agency proved its lack of candor charge. See Hoofman v. Department of the
Army, 118 M.S.P.R. 532, ¶¶ 13-15 (2012) (finding that the appellant lacked
candor when he failed to explain the circumstances surrounding his request for
10 days of leave and attempted to conceal his wrongdoing), aff’d, 526 F. App’x
982 (Fed. Cir. 2013).
2 The agency’s response to the petition for review was untimely filed by 6 hours. Upon
consideration of the agency’s explanation of the circumstances surrounding its untimely
filing, PFR File, Tab 11, we find good cause for the minimal delay, see 5 C.F.R.
§ 1201.114(g).
3 See Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987).3
The agency established nexus.
In addition to proving its charge by preponderant evidence, the agency
must prove that there is a nexus between the appellant’s misconduct and the
efficiency of the service. The administrative judge did not address nexus, but this
error does not warrant reversal of the initial decision. There is a sufficient nexus
between an employee’s misconduct and the efficiency of the service when the
misconduct occurred in part at work. Parker v. U.S. Postal Service , 819 F.2d
1113, 1116 (Fed. Cir. 1987). Also, an employee’s lack of candor strikes at the
heart of the employer-employee relationship and directly impacts the efficiency
of the service. Ludlum v. Department of Justice , 87 M.S.P.R. 56, ¶ 28 (2000),
aff’d, 278 F.3d 1280 (Fed. Cir. 2002). We find that the agency has proven nexus.
The appellant failed to establish her affirmative defenses of sex and disability
discrimination.
On review, the appellant challenges the administrative judge’s assessment
of her affirmative defenses of sex and disability discrimination.4 PFR File, Tab 4
at 20-24. She asserts that her supervisor, who was the proposing official, made
disparaging comments about female employees and the appellant’s disability. Id.
at 21-22. She also asserts that she was treated differently than male and
non-disabled employees who were only required to produce rudimentary medical
documentation to obtain advanced sick leave and leave donations. Id. at 22-23.
She claims that the agency’s actions were mere pretext for discrimination because
the agency began investigating her medical documentation after it became aware
4 In discussing her affirmative defenses, the appellant states that an agency decision will
not be sustained if she shows harmful procedural error in the application of the agency’s
procedures, but she offers no evidence or argument for such a claim. PFR File, Tab 4
at 20. Moreover, the appellant did not preserve this issue below. IAF, Tab 24 at 3.
The Board will generally not consider an argument raised for the first time in a petition
for review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980 ). The appellant has not made this showing, and we
do not consider this claim on review.4
that she was planning to pursue an equal employment opportunity (EEO)
complaint. Id. at 23-24.
To prove an affirmative defense of discrimination or retaliation under
42 U.S.C. § 2000e-16, or discrimination on the basis of disability under the
Rehabilitation Act, an appellant must prove that discrimination or retaliation was
at least a motivating factor in the agency’s action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 21-25, 40. An appellant may prove
discrimination by various methods, and no one method is the exclusive path to a
finding of liability. Id., ¶ 23. Those methods may include: (1) direct evidence;5
(2) circumstantial evidence, which may include (a) evidence of “suspicious
timing, ambiguous statements oral or written, behavior toward or comments
directed at other employees in the protected group, and other bits and pieces from
which an inference of discriminatory intent might be drawn,” also known as a
“convincing mosaic”; (b) comparator evidence, consisting of “evidence, whether
or not rigorously statistical, that employees similarly situated to the plaintiff
other than in the characteristic . . . on which an employer is forbidden to base a
difference in treatment received systematically better treatment”; (c) evidence
that the agency’s stated reason for its action is “unworthy of belief, a mere
pretext for discrimination” (i.e., the burden-shifting standard under McDonnell
Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973)); and (3) some combination
of direct and indirect evidence. Id., ¶ 24.
The administrative judge found that the appellant did not present direct or
circumstantial evidence that she was subjected to disparate treatment based on her
sex and disability; thus, she failed to prove that her sex or disability was a
motivating factor in the agency’s decision to remove her. ID at 35-40.
In so finding, the administrative judge stated that the appellant did not identify
any comparator employees who were not removed for engaging in the same or
5 Direct evidence may be any statement by an employer that reflects directly the alleged
discriminatory attitude and bears directly on the contested employment discrimination.
Doe v. Pension Benefit Guaranty Corporation , 117 M.S.P.R. 579, ¶ 40 (2012). 5
similar misconduct, and the evidence that she provided to create an inference of
discriminatory intent on the part of her supervisor was too speculative or was
contradicted by the record. ID at 35-36. The administrative judge noted that the
appellant raised allegations that male and non-disabled employees received
preferential treatment for sick leave usage, but he found speculative her belief
about the nature of the potential comparators’ conditions, and she failed to
identify any male or non-disabled employees who used rudimentary
documentation to obtain advanced sick leave and/or leave donations during her
last year of employment. ID at 36-37. He further observed that, by her own
admission, the appellant’s supervisor was lenient with respect to the medical
documentation that she needed to provide for sick leave usage until
December 2016, when the agency began imposing more stringent requirements on
its employees in response to a complaint, and that he continued to approve her
requests for sick leave despite her refusal to comply with his instructions to
provide the requested documentation for several months afterwards. ID at 37-39.
We discern no error with the administrative judge’s analysis of her claims or his
finding that the appellant failed to prove her affirmative defenses of sex and
disability discrimination.
The penalty of removal was reasonable.
Finally, the appellant argues on review that the penalty of removal is
excessive. PFR File, Tab 4 at 13-20. Because the agency’s single charge is
sustained, the Board will review the agency-imposed penalty only to determine if
the agency considered all the relevant factors and exercised management
discretion within the tolerable limits of reasonableness. See Ellis v. Department
of Defense, 114 M.S.P.R. 407, ¶ 11 (2010); see also Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list
of 12 factors that are relevant in assessing the appropriate penalty for an act of
misconduct). 6
The administrative judge properly found that the deciding official
“thoroughly and carefully” considered the relevant Douglas factors in making his
decision to remove the appellant. ID at 32-33. The record reflects that the
deciding official gave specific attention to the seriousness of the appellant’s
misconduct, the supervisory position that she held, and management’s loss of
trust and confidence in her ability to perform her assigned duties following her
misconduct. IAF, Tab 11 at 21-23. He also considered the relevant mitigating
factors, such as the appellant’s 25 ½ years of satisfactory Government service,
consistently acceptable performance ratings, and the fact that her medical issues
caused her stress and anxiety. Id. at 22.
The appellant alleges on review that the deciding official gave insufficient
weight to her potential for rehabilitation. PFR File, Tab 4 at 17-18. The deciding
official noted, however, that the appellant’s attempts to rationalize or minimize
her misconduct, coupled with her history of resistance to submitting medical
documentation, cast doubt on her potential for rehabilitation. IAF, Tab 11
at 21-22. The appellant’s failure to recognize that her actions were improper and
to take responsibility for her proven misconduct weighs against a finding of
rehabilitative potential. See Render v. Department of Veterans Affairs ,
90 M.S.P.R. 441, 447 (2001). In addition, the appellant only expressed remorse
for her actions after her misconduct was discovered, which further diminishes its
value. See Saiz v. Department of the Navy , 122 M.S.P.R. 521, ¶ 13 (2015).
The appellant further asserts that her efforts to seek treatment for her
medical conditions indicate a potential for rehabilitation. PFR File, Tab 4
at 17-18 (citing Vitanza v. U.S. Postal Service , 89 M.S.P.R. 319 (2001)). The
Board has held that evidence that an employee’s medical condition or mental
impairment played a part in the charged conduct is ordinarily entitled to
considerable weight as a mitigating factor. Malloy v. U.S. Postal Service ,
578 F.3d 1351, 1357 (Fed. Cir. 2009); Roseman v. Department of the Treasury ,
76 M.S.P.R. 334, 345 (1997). We have considered the evidence surrounding the7
appellant’s conditions, but we find that it does not outweigh other relevant
factors, such as the nature and seriousness of the misconduct. Importantly, the
appellant does not explain or provide any evidence as to how her medical
conditions, IAF, Tab 29 at 30, 50, played a role in the misconduct. Moreover, the
appellant does not indicate how her efforts to seek treatment support finding a
potential for rehabilitation. See, e.g., Mingledough v. Department of Veterans
Affairs, 88 M.S.P.R. 452, ¶ 12 (2001) (noting that a medical condition was not a
significant mitigating factor in the absence of evidence that the impairment can
be remedied or controlled, i.e., when the potential for rehabilitation was poor).
Finally, this matter is distinguishable from Vitanza, 89 M.S.P.R. 319, ¶ 6, because
there, the deciding official did not consider the appellant’s medical conditions as
mitigating factors; here, the deciding official considered the appellant’s “anxiety
and stress” resulting from her medical issues as a mitigating factor in his
decision. IAF, Tab 11 at 21-22.
We have considered the appellant’s remaining penalty arguments on
review, but none warrant a different outcome.6 We agree with the administrative
judge that the deciding official properly considered the relevant Douglas factors
and that the penalty of removal does not exceed the tolerable limits of
reasonableness for the sustained charge of lack of candor. See Jackson v.
Department of the Army , 99 M.S.P.R. 604, ¶¶ 2, 6, 8 (2005) (finding that removal
of supervisory police officers was a reasonable penalty for conspiracy and lack of
candor despite “significant” mitigating factors because, among other things, lack
of candor is a serious offense that strikes at the heart of the employer -employee
relationship); see also Gebhardt v. Department of the Air Force , 99 M.S.P.R. 49,
¶ 21 (2005) (stating that an agency is entitled to hold a supervisory employee to a
higher standard of conduct than a non-supervisory employee because she occupies
6 The appellant’s suggestion on review that a lack of candor charge is insufficient by
itself to warrant removal is without merit. PFR File, Tab 4 at 10-11. The
appropriateness of a penalty in any particular case depends on an analysis of the
Douglas factors, not on the label the agency affixes to its charge.8
a position of trust and responsibility), aff’d, 180 F. App’x 951 (Fed. Cir. 2006).
Accordingly, the administrative judge properly affirmed the agency’s action.
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or11
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Quasney_HollyPH-0752-18-0163-I-1__Final_Order.pdf | 2024-07-10 | HOLLY QUASNEY v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-18-0163-I-1, July 10, 2024 | PH-0752-18-0163-I-1 | NP |
1,012 | https://www.mspb.gov/decisions/nonprecedential/Johnston_Samuel_M_CH-3443-20-0345-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL M. JOHNSTON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
CH-3443-20-0345-I-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Samuel M. Johnston , Lake In The Hills, Illinois, pro se.
Paul Garrett Triplett , Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of the agency’s failure to grant a career-ladder promotion for
lack of jurisdiction. On petition for review, the appellant argues that the
International Association of Firefighters (union) filed an unfair labor practice
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(ULP) charge regarding an issue that concerned his position and includes a letter
from the President of the Union Local to the Installation Commander regarding an
intent to file a ULP.2 Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 It is well settled that the Board lacks the authority to review allegations of a ULP. See
Fearon v. Department of Labor , 99 M.S.P.R. 428, ¶ 3 n.1 (2005); Berry v. Department
of Justice, 31 M.S.P.R. 676, 678 (1986). Furthermore, the appellant does not explain
how a ULP, even if substantiated by the Federal Labor Relations Authority, would show
that the administrative judge erred in finding that the Board lacks jurisdiction over an
appeal of an agency’s failure to grant a career-ladder promotion. See Ellison v. Merit
Systems Protection Board , 7 F.3d 1031, 1034 (Fed. Cir. 1993) (stating that no law, rule,
or regulation authorizes a direct appeal to the Board regarding a nonselection for
promotion); Wooten v. Department of Veterans Affairs , 102 M.S.P.R. 131, ¶ 13 (2006)
(stating that the Board lacks jurisdiction over a nonselection for promotion).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Johnston_Samuel_M_CH-3443-20-0345-I-1__Final_Order.pdf | 2024-07-10 | SAMUEL M. JOHNSTON v. DEPARTMENT OF THE NAVY, MSPB Docket No. CH-3443-20-0345-I-1, July 10, 2024 | CH-3443-20-0345-I-1 | NP |
1,013 | https://www.mspb.gov/decisions/nonprecedential/Colbert_Daniel_W_PH-0752-19-0359-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL W. COLBERT,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
PH-0752-19-0359-I-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel W. Colbert , Naples, Florida, pro se.
Kyle L. Joseph , Esquire, El Segundo, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to clarify the correct jurisdictional
standard for a nonpreference eligible individual in the excepted service, we
AFFIRM the initial decision.
BACKGROUND
The agency appointed the appellant to an Airway Transportation System
Specialist position in the excepted service effective September 28, 2018. Initial
Appeal File (IAF), Tab 7 at 19. On the Standard Form 50 documenting the
appellant’s appointment, the agency stated that the appointment was subject to the
completion of a 1-year trial period. Id. at 20. On June 26, 2019, the agency
terminated the appellant for failure to demonstrate fitness for continued
employment with the Federal service. Id. at 4-6.
The appellant appealed his termination to the Board, claiming that the
termination was for false reasons. IAF, Tab 1 at 2. Without holding the
requested hearing, the administrative judge dismissed the appeal for lack of
jurisdiction. IAF, Tab 10, Initial Decision (ID) at 1. Despite incorrectly advising
the appellant of his jurisdictional requirements in an acknowledgment order,
IAF, Tab 2, the administrative judge provided the appellant with the correct
jurisdictional burden for a preference eligible and a nonpreference eligible in the2
excepted service in the initial decision, ID at 3-4. The administrative judge then
found that the appellant failed to nonfrivolously allege that he was an “employee”
with Board appeal rights under chapter 75. ID at 4.
The appellant filed a petition for review, predominantly challenging the
merits of his probationary termination, and the agency has responded. Petition
for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Winns v. U.S. Postal Service ,
124 M.S.P.R. 113, ¶ 7 (2017), aff’d sub nom. Williams v. Merit Systems
Protection Board , 892 F.3d 1156 (Fed. Cir. 2018). The appellant bears the
burden of proving Board jurisdiction by a preponderance of the evidence. Tolbert
v. Small Business Administration , 104 M.S.P.R. 418, ¶ 6, aff’d, 245 F. App’x 964
(Fed. Cir. 2007); 5 C.F.R. § 1201.56(b)(2)(i)(A). However, if an appellant makes
a nonfrivolous allegation that the Board has jurisdiction, he is entitled to a
hearing on the jurisdictional question.2 Tolbert, 104 M.S.P.R. 418, ¶ 7.
Only an “employee,” as defined under 5 U.S.C. chapter 75, subchapter II,
can appeal to the Board from an adverse action such as a termination.
Ramirez-Evans v. Department of Veterans Affairs , 113 M.S.P.R. 297, ¶ 9 (2010);
see 5 U.S.C. §§ 7511(a)(1), 7512(1), 7513(d). A nonpreference eligible
individual3 in the excepted service is an “employee” within the meaning of
5 U.S.C. § 7511 only if one of the following is true: (1) he is not serving a
probationary or trial period under an initial appointment pending conversion to
the competitive service; or (2) he has completed 2 years of current continuous
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, is plausible on its face, and is material to the legal issues in the appeal.
Id.
3 The appellant has not alleged that he is preference eligible. 3
service in the same or similar positions in an Executive agency under other than a
temporary appointment limited to 2 years or less. 5 U.S.C § 7511(a)(1)(C)(i) -(ii);
Ramirez-Evans, 113 M.S.P.R. 297, ¶ 9.
The administrative judge found that the appellant was not an “employee”
pursuant to 5 U.S.C. § 7511(a)(1)(C)(i). ID at 4. The appellant has not
challenged this finding on review and we agree with the administrative judge.
Section 7511(a)(1)(C)(i) only applies to individuals serving under an initial
appointment pending conversion to the competitive service, and there is no
indication that the appellant was serving in that type of appointment. See
Ramirez-Evans, 113 M.S.P.R. 297, ¶ 9; see also Forest v. Merit Systems
Protection Board , 47 F.3d 409, 411-12 (Fed. Cir. 1995) (finding that section
7511(a)(1)(C)(i) only covers excepted service individuals under an initial
appointment pending conversion to the competitive service, provided that they are
not serving a probationary or trial period under such an appointment).
The administrative judge also correctly identified the standard set forth in
5 U.S.C. § 7511(a)(1)(C)(ii) in the initial decision. ID at 3. Under this section, a
nonpreference eligible individual in the excepted service is an employee if he has
completed 2 years of current continuous service in the same or similar positions
in an Executive agency under other than a temporary appointment limited to
2 years or less. Ramirez-Evans, 113 M.S.P.R. 297, ¶ 9. The administrative judge
here determined, however, that as an individual in the excepted service, the
appellant was required to prove that he had completed 1 year of current
continuous service in the same or similar positions in an Executive agency under
other than a temporary appointment limited to 1 year or less, and he did not do so.
ID at 3. The administrative judge’s analysis appears to combine the language in
5 U.S.C. § 7511(a)(1)(B) for a preference eligible individual and 5 U.S.C.
§ 7511(a)(1)(C) for a nonpreference eligible individual. This analysis was
therefore erroneous. This error was harmless, however, as the appellant received
the correct jurisdictional notice concerning nonpreference eligible individuals in4
the excepted service, and as set forth below, he failed to allege that he is an
“employee” under section 7511(a)(1)(C)(ii). ID at 3; see Easterling v.
U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008) (finding the failure to provide
an appellant with proper jurisdictional notice can be cured if the initial decision
puts the appellant on notice of what he must do to establish jurisdiction); Panter
v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an
adjudicatory error which is not prejudicial to a party’s substantive rights provides
no basis for reversing the initial decision). We therefore modify the initial
decision to apply the correct standard for nonpreference eligible individuals in the
excepted service.
In particular, it is undisputed that the appellant here had fewer than 2 years
of Federal service to his credit. IAF, Tab 1 at 1; PFR File, Tab 1 at 13. Thus, the
appellant does not satisfy section 7511(a)(1)(C)(ii). Accordingly, the appellant
has failed to nonfrivolously allege that he is an “employee” who may appeal his
termination to the Board under 5 U.S.C. chapter 75.
The remainder of the appellant’s arguments on review involve the merits of
the agency’s termination. PFR File, Tab 1. Because the appellant has not
established Board jurisdiction over his appeal, we do not address these
arguments.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at6
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,7
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Colbert_Daniel_W_PH-0752-19-0359-I-1__Final_Order.pdf | 2024-07-10 | DANIEL W. COLBERT v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. PH-0752-19-0359-I-1, July 10, 2024 | PH-0752-19-0359-I-1 | NP |
1,014 | https://www.mspb.gov/decisions/nonprecedential/Beck_Ayesha_J_AT-1221-19-0027-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AYESHA J. BECK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-19-0027-W-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sterling Deramus , Esquire, Birmingham, Alabama, for the appellant.
W. Robert Boulware , Montgomery, Alabama, for the agency.
Glynneisha Bellamy , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address the administrative judge’s analysis of the second factor identified in Carr
v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999), we
AFFIRM the initial decision.
BACKGROUND
The appellant was previously employed as an Administrative Officer in the
Imaging Department of the Veterans Health Administration in Montgomery,
Alabama. Initial Appeal File (IAF), Tab 7 at 5, Tab 9 at 9. She was hired for this
position on July 11, 2016, subject to a 1-year probationary period. IAF, Tab 7
at 5, Tab 9 at 9. On November 23, 2016, the appellant’s initial first-line
supervisor, C.B., was replaced in her supervisory chain by J.K., the Chief of the
Imaging Service. IAF, Tab 7 at 26. In February 2017, J.K. was replaced, and
M.V., the Acting Chief of the Imaging Service, became the appellant’s first-line
supervisor. Id.
On April 6, 2017, the appellant provided testimony to an agency
Administrative Investigation Board (AIB) concerning her experiences with the2
former Chief of Imaging Service and her former first-line supervisor, J.K. Id.
at 32-43. By an April 21, 2017 memorandum signed by the Acting Chief of
Human Resources (HR), the agency terminated the appellant during her
probationary period for “unacceptable conduct and performance.” Id. at 45-46.
On May 1, 2018, the appellant filed a complaint with the Office of Special
Counsel (OSC) alleging that the agency terminated her in retaliation for her AIB
testimony in support of her former supervisor, J.K., and in opposition to agency
management’s apparent belief that J.K. engaged in mismanagement. Id. at 25-27.
During the course of her conversations with OSC, the appellant also informed her
OSC investigator that she had raised the issue of Radiological Technicians in the
Imaging Department not being properly paid for time they spent “on call” with
agency managers prior to her termination. IAF, Tab 11 at 7, Tab 59, Initial
Decision (ID) at 6 n.6. By a letter dated August 7, 2018, OSC informed the
appellant that it was closing its investigation into her complaint and provided her
with Board appeal rights. IAF, Tab 11 at 9.
On October 9, 2018, the appellant timely filed the instant IRA appeal. IAF,
Tab 1. After considering the parties’ jurisdictional filings, the administrative
judge issued an order finding that the appellant established Board jurisdiction
over her claim that she made a protected disclosure under 5 U.S.C. § 2302(b)(8)
when she complained to agency managers regarding Radiological Technicians in
the Imaging Department not being properly paid for time they spent “on call,”
and that she was terminated in retaliation for her protected disclosure. IAF,
Tab 31 at 1, Tab 33 at 3. However, the administrative judge also concluded that
the appellant failed to establish Board jurisdiction over her claim that she
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when she testified
at the AIB, concluding that, at the time the appellant testified at the AIB on
April 6, 2017, section 2302(b)(9)(C) did not include AIB testimony within its
coverage, and the December 2017 amendment expanding the coverage of section
2302(b)(9)(C) to include testimony before “any other component responsible for3
internal investigation or review” did not apply retroactively to the appellant’s
case. IAF, Tab 33 at 1-3.
After holding the appellant’s requested hearing by video teleconference,
IAF, Tabs 55, 57, the administrative judge issued an initial decision denying the
appellant’s request for corrective action, ID at 1, 18. Having previously found
jurisdiction over the pay issue, IAF, Tab 33 at 3, in the initial decision, the
administrative judge found that the appellant met her burden of establishing by
preponderant evidence that these allegations constituted a protected disclosure
under 5 U.S.C. § 2302(b)(8). ID at 6. The administrative judge also concluded
that it was undisputed that the appellant’s first-line supervisor, M.V., was aware
of the appellant’s protected disclosure, and that, given that the appellant was
acting as a management liaison with HR to resolve the pay issue, it was more
likely than not that the former Acting HR Chief who signed the appellant’s
termination letter was also aware of the appellant’s protected disclosure prior to
issuing the termination letter. ID at 7. Consequently, the administrative judge
concluded that the appellant’s disclosure was a contributing factor in the agency’s
decision to terminate her. Id. Nevertheless, the administrative judge concluded
that the agency met its burden of proving by clear and convincing evidence that it
would have terminated the appellant absent her protected disclosure, and
consequently denied the appellant’s request for corrective action. ID at 8-18.
The appellant has timely filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The agency has filed a response in
opposition to the petition for review, and the appellant has not filed a reply.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal based on whistleblower
reprisal under the Whistleblower Protection Enhancement Act if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous4
allegations that: (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8)
or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action. Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). After establishing the
Board’s jurisdiction in an IRA appeal, the appellant must then establish a prima
facie case of whistleblower reprisal by proving by preponderant evidence that she
made a protected disclosure or engaged in protected activity that was a
contributing factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1);
Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). If the
appellant makes out a prima facie case, the agency must prove, by clear and
convincing evidence, that it would have taken the same personnel action in the
absence of the protected disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2). Lu,
122 M.S.P.R. 335, ¶ 7. In determining whether an agency has met this burden,
the Board will consider the following factors: (1) the strength of the agency’s
evidence in support of its action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are similarly situated. Carr, 185 F.3d at 1323.
As previously noted, the administrative judge concluded that the appellant
established jurisdiction over her appeal. IAF, Tab 33. The administrative judge
also found that the appellant proved by preponderant evidence that she made a
protected disclosure that was a contributing factor in the agency’s decision to
terminate her. ID at 6-7. The parties do not dispute these findings on review, and
we discern no reason to disturb them.
On review, the appellant argues that the administrative judge erred by
concluding that the December 12, 2017 amendment to 5 U.S.C. § 2302(b)(9)(C)
did not apply retroactively to her case. PFR File, Tab 1 at 7-13. The appellant
also argues that the administrative judge failed to adequately analyze the facts,5
including the fact that she had a stellar work record prior to her termination, and
argues that the agency’s decision to terminate her was pretextual. Id. at 6-7.
Finally, the appellant argues that the administrative judge failed to adequately
consider the fact that her protected disclosure and her AIB testimony directly
implicated her first-line supervisor, M.V., and the former Acting HR Chief, and
could have resulted in disciplinary action against them. Id. at 7.
The administrative judge correctly concluded that the December 2017 amendment
to 5 U.S.C. § 2302(b)(9)(C) does not retroactively apply to the appellant’s case.
Prior to December 12, 2017, the whistleblower protection statutory scheme
provided that “cooperating with or disclosing information to the Inspector
General of an agency, or the Special Counsel, in accordance with applicable
provisions of law,” is protected. 5 U.S.C. § 2302(b)(9)(C). However, section
1097(c)(1) of the National Defense Authorization Act of 2018 (NDAA), Pub. L.
No. 115-91, 131 Stat. 1283, 1618 (2017), amended section 2302(b)(9)(C) to
provide that, in addition to the Inspector General of an agency or the Special
Counsel, a disclosure to “any other component responsible for internal
investigation or review” is also protected. In Edwards v. Department of Labor ,
2022 MSPB 9, ¶¶ 29-33, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir.
July 7, 2023), the Board concluded for the first time that, because the NDAA’s
amendment to section 2302(b)(9)(C) would increase an agency’s liability for past
conduct, based on the test set out by the U.S. Supreme Court in Landgraf v. USI
Film Products, 511 U.S. 244, 280 (1994), the post-NDAA expansion of section
2302(b)(9)(C)’s coverage could not be given retroactive effect.
There is no dispute here that the appellant’s purported protected activity of
testifying before the AIB on April 6, 2017, and her allegedly retaliatory
probationary termination on April 21, 2017, both occurred prior to the
December 12, 2017 amendment to 5 U.S.C. § 2302(b)(9)(C). IAF, Tab 7
at 32-33, 45-46. Accordingly, we find no error in the administrative judge’s
conclusions that the December 2017 amendment to section 2302(b)(9)(C) does6
not apply retroactively to the appellant’s case, and that the appellant’s AIB
testimony did not constitute protected activity under the pre-amendment version
of 5 U.S.C. § 2302(b)(9)(C). IAF, Tab 33; ID at 5.
We modify the administrative judge’s Carr factor analysis but still agree with his
determination that the agency met its burden of proving by clear and convincing
evidence that it would have terminated the appellant in the absence of her
protected disclosure.
As previously stated, once the appellant establishes her prima facie case of
whistleblower retaliation, the agency must then prove, by clear and convincing
evidence, that it would have taken the same personnel action in the absence of the
protected disclosure or protected activity. Lu, 122 M.S.P.R. 335, ¶ 7. In so
doing, the Board considers the factors discussed by the U.S. Court of Appeals for
the Federal Circuit in Carr v. Social Security Administration , including the
strength of the agency’s evidence in support of its action, the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision, and any evidence that the agency takes similar actions
against employees who are not whistleblowers but who are similarly situated.
The Board does not view these factors as discrete elements, each of which the
agency must prove by clear and convincing evidence. Lu, 122 M.S.P.R. 335, ¶ 7.
Rather, the Board will weigh the factors to determine whether the evidence is
clear and convincing as a whole. Id. We turn now to consider these factors.
The administrative judge correctly concluded that the first Carr
factor strongly favors the agency.
In determining that the agency met its burden with respect to the first Carr
factor in this case, the administrative judge concluded that the agency’s stated
reasons for terminating the appellant were quite strong. ID at 8-16. Specifically,
the administrative judge credited the testimony of the appellant’s first-line
supervisor, M.V., who stated that the appellant did not complete assigned duties
as directed, including failing to attend morning meetings on M.V.’s behalf, failing
to produce minutes from the morning meetings or producing poor quality minutes7
when she did complete them, failing to complete an inventory checklist assigned
to her, failing to provide updates on the progress of rescheduling veterans’ missed
appointments, and refusing to email a directive to Radiologists, as instructed. ID
at 8-13. Further, the administrative judge credited M.V.’s testimony that she
often had difficulty getting in touch with the appellant because she was regularly
on her cell phone discussing non -work-related matters, despite the fact that her
office was in close physical proximity to the appellant’s. ID at 9-10. The
administrative judge also credited the former Acting HR Chief, who testified that
beginning in March 2017, he had meetings with M.V. during which she
complained that the appellant failed to complete work assignments and engaged
in inappropriate and disrespectful behavior, including refusing to carry out
supervisory instructions. ID at 10.
By contrast, the administrative judge declined to credit the appellant’s
claim that she was on her cell phone for work-related matters, concluding that it
was implausible that colleagues would contact her on her cell phone when she had
a work phone in her office, determining that M.V.’s contrary testimony was
“unequivocal, forthright, and direct.” ID at 9-10 (citing Hillen v. Department of
the Army, 35 M.S.P.R. 453, 458 (1987)) . The administrative judge also declined
to credit the appellant’s claim that she was unaware that M.V. had concerns with
the quality of her work (particularly, with respect to her production of the
meeting minutes), noting that M.V.’s testimony outlining the deficiencies in the
appellant’s work was clear. ID at 11. Regarding the appellant’s refusal to send a
directive to Radiologists, the administrative judge acknowledged the appellant’s
claim that she refused to send the directive as ordered because she believed that,
because the Radiologists were doctors, they were outside of her chain of
command. ID at 12. Nevertheless, he declined to credit this rationale,
concluding that the appellant’s distinction concerning the “chain of command”
was “artificially contrived,” and that her failure to obey her supervisor’s lawful
instruction constituted insubordination. Id. Based on these instances of8
“repeated insubordination,” the administrative judge concluded that the appellant
engaged in misconduct that justified termination during her probationary period.
ID at 16. Additionally, as the administrative judge correctly noted, because the
appellant was a probationer at the time of her termination, the agency was not
obligated to develop a comprehensive “evidence file,” or to provide her with most
of the procedural protections reserved for tenured Federal employees before
terminating her. ID at 14 n.12.
Aside from generally pointing to her positive work record prior to
termination, the appellant does not directly challenge the administrative judge’s
credibility findings on review, and we see no reason to disturb them. ID at 10-15;
see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the
Board must give deference to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on the observation of the demeanor
of witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so). Accordingly, we
agree with the administrative judge’s conclusion that the first Carr factor strongly
favors the agency.
We modify the administrative judge’s findings concerning the second
Carr factor to conclude that this factor marginally favors the
appellant.
We take this opportunity to modify the administrative judge’s findings with
regard to the second Carr factor. In addressing the second Carr factor, which
concerns the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the allegedly retaliatory action, the
administrative judge concluded that neither the appellant’s first-line supervisor,
M.V., nor the former Acting HR Chief, the agency official who signed off on the
termination decision, had any motive to retaliate against the appellant for several
reasons. ID at 16-17. We find that the administrative judge took an overly
restrictive view in making this finding. 9
First, the administrative judge noted that, with respect to the appellant’s
protected disclosure, her role was that of a “liaison” between the Imaging
Department’s leadership and HR, and as such, the appellant was a “mere conduit”
for the Radiological Technicians’ complaints and her disclosure did not directly
affect her own pay in any way. ID at 16. Second, the administrative judge
concluded that the appellant overstated her role in bringing the “on call” pay
issue to the fore, noting that another employee testified that the appellant was
merely “present” at one of the meetings where the pay issue was raised, and that
the appellant merely “participated” in the follow-up meeting, undercutting the
appellant’s own testimony that she was “very vocal” regarding the issue at these
meetings. ID at 17 n.14 (citing IAF, Tab 57, Hearing Compact Disc 2 (HCD 2)
(testimony of A.L.)). Third, the administrative judge observed that the pay issues
that formed the basis of the appellant’s protected disclosure predated M.V.’s
appointment as the appellant’s supervisor and the former Acting HR Chief’s
appointment to his position. ID at 17. Fourth, the administrative judge
concluded that there was no evidence in the record that the actual subjects of the
disclosure, the Radiological Technicians, suffered any adverse personnel actions.
Id. Finally, the administrative judge concluded that the pay issue did not directly
affect the appellant in any way. Id. Based on these considerations, the
administrative judge concluded that neither agency official would have had a
basis for viewing the appellant as being responsible for any problems that may
have arisen from this complaint, and therefore concluded that there was “no
motive” to retaliate against the appellant on the part of either agency official. ID
at 16-17.
As an initial matter, although the administrative judge highlighted the facts
that the appellant’s disclosure did not directly impact her and that her role in
resolving the pay issue was limited to acting as a “liaison” between the Imaging
Department and HR, as the administrative judge also acknowledged, the Board
has held that even if an employee is a “conduit” for the whistleblowing10
disclosures of another employee, her disclosures are protected as long as she had
a reasonable belief that the information disclosed evidenced one or more of the
types of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Shively v. Department of
the Army, 59 M.S.P.R. 531, 537 (1993) (concluding that a finding that an
employee’s disclosure was unprotected because he was acting as a conduit for the
whistleblowing disclosures of another employee would run counter to Congress’s
intent that disclosures of wrongdoing are to be encouraged). Having determined
that the appellant met her prima facie burden in making a protected disclosure,
the administrative judge implicitly made a determination that the appellant had a
reasonable belief that she was exposing agency wrongdoing, and the fact that she
did so on the behalf of another group of employees would have no bearing on the
agency’s motive to retaliate against the appellant.
Additionally, the administrative judge’s analysis failed to adequately
consider the degree to which both agency officials may have had a motive to
retaliate against the appellant because her disclosure was highly critical of their
failure to expeditiously resolve the “on call” pay problem after they were alerted
to the issue, thereby casting them in a negative light. The administrative judge
somewhat acknowledged this consideration, noting that the former Acting HR
Chief may have experienced “some level of professional embarrassment” based
on the fact that he was specifically instructed by the Hospital Director, in a public
forum, to resolve the pay issue after he took over as Acting HR Chief, and the
issue nonetheless remained unresolved for several months thereafter. ID at 17.
Nevertheless, the administrative judge ultimately dismissed this point,
downplaying the significance of the appellant’s role in the disclosure, and stating
that any “angst” caused by the issue would not have been attributable to the
appellant. Id.
However, as the administrative judge noted, the appellant testified without
contradiction that, in a December 2016 meeting, the agency Medical Center
Director specifically instructed the Acting HR Chief to fix the pay issue, and by11
the time a follow -up meeting occurred in February 2017, the issue had still not
been fully resolved, which could have reflected poorly on his capacity as a
supervisor. ID at 3; HCD 2 (testimony of the appellant). Additionally, the
complaint, and the fact that it remained unresolved for as long as it did, also
could have reflected poorly on M.V. as the Acting Chief of the Imaging Service—
the department where the complaining Radiological Technicians worked. The
Board’s reviewing court has held that a motive to retaliate may exist where a
whistleblower’s protected disclosures cast the agency and responsible agency
managers in a negative light, or generally reflect poorly on the agency. See
Whitmore v. Department of Labor , 680 F.3d 1353, 1370-71 (Fed. Cir. 2012)
(finding motive to retaliate because the appellant’s criticisms “cast [the agency],
and, by implication all of the responsible [agency] officials, in a highly critical
light by calling into question the propriety and honesty of their official conduct”);
Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 69 (2011) (finding
motive to retaliate based on criticisms of the management of an office for which
the proposing and deciding officials had responsibility and in the success of
which both the proposing and deciding official had an interest).
Additionally, as previously noted, in finding that the appellant
demonstrated that her protected disclosure was a contributing factor in the
agency’s decision to terminate her, the administrative judge explicitly concluded
that both agency officials were aware of the appellant’s protected disclosure. See
ID at 7 (concluding that the appellant proved that her protected disclosure was a
contributing factor in the agency’s decision to remove her, based on the
knowledge/timing test). Based on these facts alone, it would be reasonable to
conclude that both officials could have had at least some motive to retaliate
against the appellant, even assuming that her role in exposing the pay issue was
more limited than she made it out to be. Accordingly, we conclude that the
administrative judge erred by finding that there was “no motive to retaliate” on
the part of either official. ID at 16-17. 12
Despite this finding, we still conclude that any potential motive to retaliate
by the identified agency officials was slight, at best. As the administrative judge
also noted in his analysis of the second Carr factor, there was ample evidence in
the record that, even though the appellant did play a role in raising the pay issue,
her role was relatively limited, and other, more vocal, agency employees were
more directly responsible for pushing for resolution of the issue, so any potential
motive to retaliate against the appellant, specifically, would have been minimal.
See ID at 17 n.14 (observing that A.L.’s testimony indicated that the appellant
was merely “present” at the February meeting addressing the pay issue, and only
“participated” in the follow-up meeting); HCD 2 (testimony of A.L.) (noting that
she, and not the appellant, requested the February meeting between the former
Acting HR Chief and supervisors to resolve the “on call” pay issue, and recalling
that the appellant’s role in resolving the issue, as discussed in the meeting, was to
serve as the contact point to assist with having the pay correctly coded).
Additionally, although the Acting HR Chief was ultimately reassigned from his
position, HCD 1 (testimony of Acting HR Chief), and the appellant’s first-line
supervisor, M.V., ultimately left the agency, there is no indication in the record
that either decision was a consequence of the appellant’s purported disclosure,
HCD 1 (testimony of M.V.).
Accordingly, we modify the administrative judge’s finding concerning the
second Carr factor to conclude that the responsible agency officials could have
had some motive to retaliate against the appellant because of her protected
disclosures, but that any such motive was very slight. Consequently, we conclude
that this factor marginally favors the appellant.
The administrative judge correctly concluded that the lack of
evidence concerning the third Carr factor favors the appellant.
As for the third Carr factor, the administrative judge acknowledged the
former Acting HR Chief’s testimony stating that when conduct issues arise for
probationary employees during their probationary period, termination is the13
agency’s normal course of action. ID at 18 (citing testimony of the former Acting
HR Chief). However, the administrative judge concluded that the lack of any
evidence concerning whether these other terminated probationary employees were
whistleblowers or non-whistleblowers detracted from the agency’s ability to meet
its burden. Id. We agree. Based on the former Acting HR Chief’s testimony, it
appears that although the agency was aware of potential comparators and put
forward testimony about potential comparators (that is, probationary employees
who engaged in misconduct similar to that of the appellant), nothing in the record
or in the testimony specifies whether these potential comparators were
whistleblowers or non-whistleblowers.
Our reviewing court has held that “the absence of any evidence relating to
Carr factor three can effectively remove that factor from the analysis,” but that
the failure to produce such evidence if it exists “may be at the agency’s peril,”
and “may well cause the agency to fail to prove its case overall.” Whitmore,
680 F.3d at 1374-75. Moreover, because it is the agency’s burden of proof by
clear and convincing evidence, when the agency fails to introduce relevant
comparator evidence, the third Carr factor cannot weigh in favor of the agency.
Smith v. General Services Administration , 930 F.3d 1359, 1367 (Fed. Cir. 2019);
Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018).
Under the circumstances of this case, we find that the agency has failed to
introduce complete, fully explained comparator evidence, the Federal Circuit’s
admonitions in Smith and Siler apply, and Carr factor 3 does not weigh in the
agency’s favor.
In summary, we agree with the administrative judge’s conclusion that the
first Carr factor, concerning the strength of the agency’s evidence in support of
its action, weighs very strongly in the agency’s favor based on the fact that the
administrative judge appropriately credited the testimony of the former Acting
HR Director and the appellant’s first-line supervisor concerning the performance
and conduct deficiencies that preceded, and ultimately justified, the appellant’s14
termination. We modify the administrative judge’s finding concerning the second
Carr factor, which concerns the existence and strength of any motive to retaliate
on the part of the agency officials who were involved in the decision, concluding
that the responsible agency officials could have had a slight motive to retaliate
based on the fact that the protected disclosure could have reflected poorly on their
management capabilities, and conclude that this factor slightly favors the
appellant. Nevertheless, we note that any potential motive was slight, at best, and
that nothing in the record indicates that either responsible agency management
official ever suffered disciplinary action or any other consequence as a result of
the purported disclosure. Finally, we agree with the administrative judge’s
finding that, because the agency failed to distinguish between whistleblowers and
non-whistleblowers in presenting potential comparators, the absence of evidence
regarding the third Carr factor, which considers whether the agency takes similar
actions against employees who are not whistleblowers but who are similarly
situated, modestly favors the appellant.
Based on these findings, we ultimately agree with the administrative
judge’s conclusion because the marginal potential motive to retaliate related to
the second Carr factor, and the lack of clear evidence presented by the agency
regarding the third Carr factor, are outweighed by the overwhelming strength of
the evidence the agency put forth regarding the appellant’s performance and
misconduct issues related to the first Carr factor, and so the agency met its
burden of proving by clear and convincing evidence that it still would have
terminated the appellant during her probationary period in the absence of her
protected disclosures. Consequently, we affirm the initial decision, and deny the
appellant’s request for corrective action.15
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.16
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any17
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s18
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 19
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20 | Beck_Ayesha_J_AT-1221-19-0027-W-1__Final_Order.pdf | 2024-07-10 | AYESHA J. BECK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-19-0027-W-1, July 10, 2024 | AT-1221-19-0027-W-1 | NP |
1,015 | https://www.mspb.gov/decisions/nonprecedential/Presna_PierrePH-1221-20-0091-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PIERRE PRESNA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-20-0091-W-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ashling Soares , Esquire, Westport, Connecticut, for the appellant.
Kimberly Jacobs , Esquire, Newington, Connecticut, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
In an IRA appeal, the Board may consider only matters that the appellant
exhausted before the Office of Special Counsel (OSC) and it is the appellant’s
burden to prove exhaustion by preponderant evidence. Mason v. Department of
Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011); see Hessami v. Merit Systems
Protection Board, 979 F.3d 1362, 1368 n.2 (Fed. Cir. 2020). The purpose of the
requirement that an appellant exhaust his remedies with OSC prior to filing an
IRA appeal with the Board is to give OSC “the opportunity to take corrective
action before involving the Board in the case.” Ward v. Merit Systems Protection
Board, 981 F.2d 521, 526 (Fed. Cir. 1992). To serve exhaustion’s intended
purpose, the appellant must articulate to OSC the basis of his request for
corrective action “with reasonable clarity and precision,” giving OSC a sufficient
basis to pursue an investigation that might lead to corrective action. Ellison v.
Merit Systems Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993); Ward,
981 F.2d at 526.
For the first time on review, the appellant submits a sworn affidavit, dated
after the close of the record below, in which he reiterates the allegations
regarding his employment with the agency that he made in his initial Board2
appeal form. Petition for Review (PFR) File, Tab 1 at 6-8; Initial Appeal File
(IAF), Tab 1 at 6. Under 5 C.F.R. § 1201.115, the Board will generally not
consider evidence submitted for the first time with a petition for review absent a
showing that it was unavailable before the record was closed despite the party’s
due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
Nevertheless, under the particular circumstances of this case, we find it
appropriate to consider the appellant’s submission to the extent that it bears on
the issue of exhaustion. However, the appellant’s sworn affidavit does not
contain any information regarding the substance of his OSC complaint; thus, a
different outcome is not warranted here. See Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for
review based on new evidence absent a showing that it is of sufficient weight to
warrant an outcome different from that of the initial decision).
The appellant challenges the merits of the agency’s decision to terminate
him during his probationary period.2 PFR File, Tab 1 at 9-21. He refers to the
pages in his petition for review in which he raises these arguments as his OSC
complaint in the table of contents. Id. at 2. Importantly, he fails to identify any
specific disclosures, the dates he made these disclosures, the relevant individuals
involved, or any personnel actions related to the disclosures. The Board and the
U.S. Court of Appeals for the Federal Circuit have held that vague and conclusory
allegations do not meet the requirement that an appellant exhaust his
whistleblower reprisal claims with OSC as required by 5 U.S.C. § 1214(a)(3)
because they do not provide OSC with a sufficient basis to pursue an
investigation which might lead to corrective action. Ellison, 7 F.3d at 1036;
Schaeffer v. Department of the Navy, 86 M.S.P.R. 606, ¶ 14 (2000), overruled on
2 The appellant filed a petition for review of an initial decision dismissing for lack of
jurisdiction his appeal of an agency action terminating him during his probationary
period. Presna v. Department of Veterans Affairs, MSPB Docket No. PH-315H-19-
0345-I-1, Petition for Review File, Tab 1. On June 12, 2024, the Board issued a Final
Order denying the appellant’s petition for review. Presna v. Department of Veterans
Affairs, MSPB Docket No. PH-315H-19-0345-I-1, Final Order at 2 (Jun. 12, 2024).3
other grounds by Covarrubias v. Social Security Administration, 113 M.S.P.R.
583, ¶ 9 n.2 (2010). Because we find that the appellant did not exhaust his
administrative remedies with OSC, we need not address the remaining
jurisdictional requirements for his IRA appeal. See Miller v. Federal Deposit
Insurance Corporation, 122 M.S.P.R. 3, ¶ 10 (2014) (observing that exhaustion
of administrative remedies before OSC is a jurisdictional prerequisite to raising
an IRA appeal before the Board).
The June 14, 2019 email and the “fact finding report” submitted by the
appellant on review are not new evidence because these documents were
submitted below. PFR File, Tab 1 at 23-24; IAF, Tab 1 at 11, 13; see Meier v.
Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (stating that evidence that
is already a part of the record is not new). Additionally, the appellant’s phone
screenshots, for which he provides no explanation, are not material to the
jurisdictional issue. PFR File, Tab 1 at 25-26; see Russo, 3 M.S.P.R. at 349.
Because the appellant’s evidence does not show that the Board has jurisdiction
over his IRA appeal, it does not provide a basis for disturbing the administrative
judge’s findings.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Presna_PierrePH-1221-20-0091-W-1__Final_Order.pdf | 2024-07-10 | PIERRE PRESNA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-20-0091-W-1, July 10, 2024 | PH-1221-20-0091-W-1 | NP |
1,016 | https://www.mspb.gov/decisions/nonprecedential/Anaya_RosemarySF-0831-20-0197-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSEMARY ANAYA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-20-0197-I-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Guillermo Mojarro , Corpus Christi, Texas, for the appellant.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM) reconsideration decision
concerning the calculation of her retirement annuity under the Civil Service
Retirement System. On petition for review, the appellant argues only that the
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge “did not review all of the record[s] correctly.” Petition for
Review (PFR) File, Tab 3 at 4. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 Among other things, the appellant argued before the administrative judge that the
agency miscalculated her service computation date, and thus her length of Federal
service, for purposes of calculating her civil service retirement annuity. In making its
calculations, OPM excluded periods of excessive leave without pay (LWOP) taken by
the appellant during various years during her career. By law, retirement credit may not
be allowed for periods of LWOP “as exceeds 6 months in the aggregate in a calendar
year.” 5 U.S.C. § 8332(f). The appellant has not argued that the administrative judge
erred in finding that the appellant took such excessive LWOP in 1998, 2003-2005, and
2007. Initial Appeal File (IAF), Tab 27, Initial Decision at 5; see IAF, Tab 15 at 9-10.
Thus, the appellant has not shown error in OPM’s calculation of her service
computation date for purposes of calculating her retirement annuity.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Anaya_RosemarySF-0831-20-0197-I-1__Final_Order.pdf | 2024-07-10 | ROSEMARY ANAYA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-20-0197-I-1, July 10, 2024 | SF-0831-20-0197-I-1 | NP |
1,017 | https://www.mspb.gov/decisions/nonprecedential/Manga_MariaPH-0752-17-0096-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIA MANGA,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-0752-17-0096-I-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Zieleniewski , Esquire, Washington, D.C., for the appellant.
Michael D. Hall, Sr. , Riverdale, Maryland for the appellant.
Claudine Landry , Esquire, Richard Lloyd Peterson , Esquire, and
Ashley E. Obando , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained her removal. For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant’s petition for review and REVERSE the administrative judge’s decision
to sustain the removal action. The appellant’s removal is REVERSED. We
clarify the correct analytical framework for the appellant’s Title VII affirmative
defenses, and we FIND that the appellant proved her affirmative defenses of
disability discrimination based on disparate treatment and failure to
accommodate.
BACKGROUND
¶2The appellant worked as a GS-1101-12 Business Opportunity Specialist in
the agency’s Baltimore District Office. Initial Appeal File (IAF), Tab 1 at 1,
Tab 11 at 4, Tab 28 at 58. On October 29, 2015, the appellant collapsed at work
and was hospitalized. IAF, Tab 6 at 40. She spent a period at the hospital, then
transferred to a rehabilitation facility, and was subsequently released to complete
outpatient physical therapy several times a week. Id. at 108-19, 212-20. Her
communication with her supervisor was spotty during this time, but she submitted
leave requests and medical documentation in December 2015 showing that she
had experienced, among other things, “[m]uscle weakness, balance and walking
problems,” and her medical provider indicated that she would remain
incapacitated until December 28, 2015. Id. at 108-19, 212-20, 226 -234. The
agency granted the appellant sick leave through December 25, 2015, as well as an
additional week of annual leave that the appellant had requested, ending on
January 4, 2016. Id. at 58-59. The appellant, however, never returned to work.
¶3The appellant’s December 2015 medical documentation also stated that
when she did return to work, it was “absolutely medically necessary” to reassign
her to the agency’s Washington, D.C. District Office because of the length of her
commute to the Baltimore District Office. Id. at 214. The agency requested
clarification as to whether the appellant was requesting a reasonable
accommodation and asked her to provide additional information. Id. at 172-73.
The appellant provided a January 6, 2016 letter from her physician, Dr. G.,2
stating that the appellant was “requesting a reasonable work accommodation” and
explaining that she was still experiencing limited mobility and required assistive
devices to move about; that the length of her commute to the Baltimore District
Office had caused her to lose sleep and may have triggered her collapse and
ensuing medical condition, of which the working diagnosis was “conversion
reaction attributable to an untenable work situation and sleep deprivation;” and
that she was capable of performing her job functions if she did not have an
onerous commute. Id. at 162. In mid-January 2016, the agency informed the
appellant that it wished to send her request to the Federal Occupational Health
Service (FOH) to assist in recommending accommodations and requested that she
provide specific additional documentation to provide to FOH, but the appellant
did not respond. Id. at 158-59.
¶4In mid-February 2016, the agency informed the appellant that it was closing
her reasonable accommodation case because she had not submitted the FOH
paperwork, and it was unable to determine whether she had a disability or the
specific accommodation she was requesting. Id. at 134-35. The letter provided
her with an opportunity to request reconsideration of the decision, but she did not
respond. Id. at 134. In early March 2016, the agency informed the appellant’s
representative that it did not believe that Dr. G.’s January 6, 2016 letter supported
her absences but that it was still amenable to discussing reasonable
accommodation. Id. at 90-96. The appellant subsequently requested
accommodation in the form of office furniture, to which the agency responded
that it had already provided the requested furniture and that the appellant should
respond if she was seeking additional accommodation. Id. at 72, 74-75, 88. The
appellant again did not respond.
¶5Throughout this period, the appellant had submitted additional requests for
leave from January through March 2016, but the agency told her numerous times
that it did not find that her medical documentation restricted her from working in
the Baltimore District Office and to provide additional information to this effect.3
Id. at 90-96, 103-105, 128, 137, 156, 164. Per the agency, the appellant did not
do so, and in early March 2016 the agency notified her that it was documenting
her status from early January to early March 2016 as absent without leave
(AWOL). Id. at 81-83. The agency continued to carry her in an AWOL status
and eventually proposed her removal in late April 2016 for AWOL and failure to
follow leave procedures (two specifications) from January 4, 2016, until April 27,
2016. Id. at 58-63. The appellant replied to the notice, and on November 2,
2016, the agency issued a decision sustaining her removal. Id. at 40-45, 51-52.
¶6The appellant filed a timely appeal with the Board challenging her removal
and raising affirmative defenses of disparate treatment on the bases of age,
national origin, sex, and disability; retaliation for prior EEO activity; and failure
to provide reasonable accommodation for her disability. IAF, Tab 1 at 7-8,
Tab 52 at 3. After holding the requested hearing, the administrative judge issued
an initial decision affirming the agency’s action. IAF, Tab 62, Initial Decision
(ID) at 1. The administrative judge found that the agency proved its AWOL
charge and the second specification of the failure to follow leave procedures
charge, ID at 16-20, the removal promoted the efficiency of the service, ID
at 20-22, and the appellant did not prove her affirmative defenses, ID at 22-24.
¶7The appellant filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency filed a response, and the appellant filed a reply. PFR File,
Tabs 3, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8On petition for review, the appellant argues that the initial decision should
be reversed because the administrative judge did not provide reasoning based on
case law, his ruling was “without regard [for] the letter of the law and the spirit of
the law,” and the decision lacked fairness and empathy. PFR File, Tab 1 at 1-2.
Although the appellant does not identify any specific error in the initial decision,
she cites numerous statutes, Board decisions, and Equal Employment Opportunity4
Commission (EEOC) guidance in support of her argument that the agency
subjected her to discrimination, retaliation, and harassment, and violated her due
process rights. Id. at 3. For the reasons discussed below, we agree with the
appellant that the removal action must be reversed.
The agency’s AWOL charge cannot be sustained because the appellant provided
administratively acceptable evidence that she was incapacitated for duty at her
duty station.
¶9To prove a charge of AWOL, an agency must show that the employee was
absent without authorization and, if the employee requested leave, that the agency
properly denied the request. Wilson v. Small Business Administration ,
2024 MSPB 3, ¶ 7. An agency may require a medical certificate to substantiate a
request for sick leave of more than 3 workdays. 5 C.F.R. § 630.405(a). A charge
of AWOL will not be sustained if the appellant presents administratively
acceptable evidence that she was incapacitated for duty during the relevant period
and if she has sufficient sick leave to cover the period of absence. Valenzuela v.
Department of the Army , 107 M.S.P.R. 549, ¶ 9 (2007); see 5 C.F.R. § 630.405(b)
(indicating that an agency may deny a request for sick leave when an employee
fails to provide properly requested administratively acceptable evidence). An
agency may find documentation insufficient if it does not provide the requested
information regarding the nature of the appellant’s illness and the effect her
illness had on her ability to work. Rison v. Department of the Navy , 23 M.S.P.R.
118, 123 (1984), aff’d, 765 F.2d 162 (Fed. Cir. 1985) (Table).
¶10In this case, the appellant does not dispute that she was absent from work
between January 4, 2016, and April 27, 2016. ID at 17. However, as noted
above, the record shows that the appellant requested both sick and annual leave
from January 4, 2016, going forward and that the agency denied her requests. ID
at 17; IAF, Tab 6 at 90-96, 103-105, 128, 156, 164. Therefore, the critical
question is whether the agency’s denials of her leave requests were proper. 5
¶11In the initial decision, the administrative judge found that the agency
properly denied the appellant’s leave requests from January 4, 2016, onward
because she did not submit any medical documentation stating that she was
incapacitated from working and that, instead, the appellant’s medical information
confirmed that she had “sufficiently recovered” by December 28, 2015. ID at 17.
Although the administrative judge noted that the appellant’s medical records
discussed allowing her to work out of the agency’s Washington, D.C. District
Office, he found that the appellant’s physician, Dr. G., failed to identify a medical
condition that established a clear medical need for her to do so, or that otherwise
prevented her from being able to perform her job duties in the Baltimore District
Office. ID at 17-18. The administrative judge also concluded that the appellant’s
absences were not excused under the Family and Medical Leave Act of 1993
(FMLA) in part because she did not prove that she suffered from a serious health
condition after December 2015 that prevented her from performing her job duties.
ID at 18-19.
¶12However, we find that the appellant’s medical documentation clearly
explained that she was incapacitated for duty at the Baltimore District Office
during this time. Dr. G.’s January 6, 2016 letter stated that the appellant was
likely suffering from “conversion reaction attributable to an untenable work
situation and sleep deprivation,” which limited major life activities like mobility,
ambulation, and sleep. IAF, Tab 6 at 162. He explained that, although at the time
of his letter many of the appellant’s symptoms had improved and he believed she
was capable of doing her job out of the agency’s Washington, D.C. District
Office, the appellant would exacerbate her symptoms, leading to a relapse, if she
were to resume her long commute to Baltimore. Id. Dr. G., in essence, found that
the appellant’s lengthy commute from her home in Washinton, D.C. to the
agency’s Baltimore District Office had caused her sleep deprivation, which in
turn exacerbated her conversion disorder, but that she could probably work from
the agency’s Washington, D.C. office instead. Id. The administrative judge’s6
finding that Dr. G. “failed to identify an existing medical condition” that required
the appellant to work out of the Washington, D.C. office, and the appellant’s
supervisor’s contention that Dr. G.’s letter did not state that she was “unable to
report to work,” are incorrect given this explicit discussion. ID at 18; IAF, Tab 6
at 126, 162. Additionally, in a letter dated March 8, 2016, Dr. G. reiterated his
opinion that the appellant “could be working in the D.C. office” but that the
accommodations he had recommended were “medically necessary.” Id. at 88.
¶13Consequently, we disagree with the administrative judge and find that the
appellant presented administratively acceptable evidence of her incapacity to
work out of the agency’s Baltimore District Office. ID at 162; see Atchley v.
Department of the Army , 46 M.S.P.R. 297, 303 (1990) (explaining that if the
doctor’s diagnosis, determination of the appellant’s work restrictions, and
understanding of the appellant’s condition were accurate, it would “logically
follow that the appellant was incapacitated for duty” and holding that the
appellant submitted administratively acceptable evidence of incapacity). The
appellant provided a letter from a licensed physician, with whom she had a
longstanding relationship, that contained a medical diagnosis, a description of her
symptoms, and an explanation of how this condition prevented her from reporting
to her duty station in Baltimore. Compare Lawley v. Department of the Treasury ,
84 M.S.P.R. 253, ¶¶ 22-23 (1999) (finding that the appellant’s medical
documentation, which stated that she required time off because of emotional
stress that was work related and due to problems with her supervisor, failed to
indicate that she was incapacitated for duty), with Patterson v. Department of the
Air Force, 74 M.S.P.R. 648, 652-58 (1997) (finding the appellant’s detailed
medical evidence, which indicated the reasons why she was completely unable to
work due to problems with her supervisors, a diagnosis, and a prognosis of when
she could return to work, established that she was incapacitated for duty).
¶14As mentioned above, to overcome a charge of AWOL, an appellant must
generally present administratively acceptable evidence of incapacitation for the7
relevant period and have sufficient sick leave to cover the period of absence.
Valenzuela, 107 M.S.P.R. 549, ¶ 9; 5 C.F.R. § 630.401. Here, the record
indicates that the appellant only had enough available sick leave to cover her
absences through the end of February 2016. IAF, Tab 6 at 137. The appellant
also requested annual leave for this period, but the agency denied her request
because her absence was having an impact on the distribution of work in the
office. Id. at 92, 103-05. Although the agency informed the appellant of what
she needed to do to invoke the FMLA to use annual leave in place of sick leave, it
does not appear that the appellant ever invoked the FMLA or requested leave
without pay (LWOP) for the period covered by the AWOL charge. Id. at 59,
91-92, 98, 103-05, 128, 138, 156, 164. Nevertheless, we note that authorization
of LWOP is within the agency’s discretion. Oates v. Department of Labor ,
105 M.S.P.R. 10, ¶ 11 (2007). Further, here, the agency specifically denied the
appellant’s leave requests because it erroneously concluded that her medical
documentation did not support her incapacitation from working at the Baltimore
District Office. IAF, Tab 6 at 91-92, 95. In fact, it explicitly informed her that it
“reserve[d] the right to change her leave if the medical documentation supports
her incapacitation.” Id. at 90. Had the agency properly acknowledged that the
appellant’s medical documentation supported her incapacitation from working out
of the Baltimore District Office and as discussed further below, properly
acknowledged and engaged with her request for a reasonable accommodation,
leave would not have been an issue. Thus, the agency’s denial of leave, and
handling of the appellant’s situation generally, was not reasonable under the
circumstances.
¶15Accordingly, the AWOL charge may not be sustained.
The failure to follow leave procedures charge cannot be sustained.
¶16As noted above, the agency also charged the appellant with failure to follow
leave procedures (two specifications). IAF, Tab 6 at 60. Agencies may take
disciplinary action against an employee based on her failure to follow8
leave-requesting procedures and her use of unscheduled leave provided she is
clearly on notice of such requirements and the likelihood of discipline for
continued failure to comply. Valenzuela, 107 M.S.P.R. 549, ¶ 9. In the initial
decision, the administrative judge only sustained the second specification of this
charge. ID at 19-20. On review, the agency does not challenge his findings as to
the first specification, and thus, only the second specification is at issue. See PFR
File, Tab 3.
¶17Under specification 2, the agency alleged that the appellant failed to follow
leave procedures because she “failed to provide medical certification, signed by a
registered practicing physician or other practitioner, certifying [her]
incapacitation.” IAF, Tab 6 at 60. As explained above in connection with the
AWOL charge, this allegation is demonstrably untrue. As a result, this charge
cannot be sustained.
¶18Because neither charge can be sustained, the appellant’s removal must be
reversed.
We agree with the administrative judge that the appellant did not prove her
affirmative defenses of disparate treatment on the basis of age, national origin, or
sex.
¶19After the initial decision was issued, the Board clarified the proper
analytical framework for adjudicating age, national origin, and sex discrimination
claims under Title VII. Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 21-25. Under Pridgen, the appellant bears the burden of
proving by preponderant evidence that her age, national origin, or sex was a
motivating factor in her removal. Pridgen, 2022 MSPB 31, ¶ 21. A finding that
prohibited discrimination played “any part” in the contested action is the same as
a finding of “motivating factor.” Id. In the initial decision, the administrative
judge found that the appellant failed to present any evidence supporting her
claims of disparate treatment on the basis of age, national origin, or sex. ID9
at 22-23. We agree and find that the appellant did not show that her age, national
origin, or sex were motivating factors in her removal. Id.
We agree that the appellant did not prove her affirmative defense of retaliation
for protected EEO activity.
¶20In finding that the appellant did not show that the agency retaliated against
her for her prior EEO activity, the administrative judge applied the standard set
forth in Cloonan v. U.S. Postal Service , 65 M.S.P.R. 1, 4 (1994), which requires,
among other things, that the appellant establish a “genuine causal connection”
between the alleged retaliation and the contested employment action. ID
at 23-24. However, after the initial decision was issued, the Board also clarified
the analytical framework for addressing claims of EEO retaliation. In Pridgen,
the Board held that claims of retaliation for opposing discrimination in violation
of Title VII are analyzed under the same framework used for Title VII
discrimination claims, as set forth above. Pridgen, 2022 MSPB 31, ¶ 30; see also
Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 32.
¶21Here, analyzing the appellant’s claim under the correct evidentiary
standards and framework, we find that the administrative judge properly
concluded that the appellant did not prove her affirmative defense of retaliation
for prior EEO activity. The appellant did not show that the officials involved in
the removal action were aware of her prior EEO activity or that any agency
employee with knowledge of her EEO activity influenced the officials’ decisions.
See ID at 23-24. Our review of the record reflects that the appellant did not
present any evidence other than conclusory allegations in support of her
retaliation claim. Thus, the appellant did not establish that her prior EEO activity
was a motivating factor in her removal.2
2 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s above-discussed discrimination and retaliation
claims, it is unnecessary for us to address whether discrimination or retaliation on these
bases were a but-for cause of the removal action. See Pridgen, 2022 MSPB 31,
¶¶ 20-25.10
The appellant is a qualified individual with a disability.
¶22As noted above, the appellant also alleged that the agency subjected her to
disparate treatment on the basis of her disabilities, which she identified as
depression, stress, and anxiety, and that the agency discriminated against her by
failing to accommodate her disabilities. IAF, Tab 52 at 3. With regard to these
issues, the administrative judge found that although the appellant “had been
experiencing some mobility issues early on,” she did not establish that she had a
disability at any point in time between December 28, 2015 and the date of her
removal, and thus that she did not show that she was an individual with a
disability. ID at 23. He therefore found that she did not establish either of her
claims. ID at 23-24. As discussed below, we disagree.
¶23The Americans with Disabilities Act (ADA)3 provides that it is illegal for an
employer to “discriminate against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a); Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 28. To prove disability discrimination, an appellant must first
establish that she is an individual with a disability. Doe v. Pension Benefit
Guaranty Corporation , 117 M.S.P.R. 579, ¶ 38 (2012). To prove that an
appellant is an individual with a disability, she must show that she: (1) has a
physical or mental impairment that substantially limits one or more major life
activities; (2) has a record of such impairment; or (3) is regarded as having such
an impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g). Major life
activities include sleeping, walking, and standing. 29 C.F.R. § 1630.2(i)(1)(i).
The impairment must substantially limit the ability of the individual to perform a
particular major life activity as compared to most people in the general
3 The Board adjudicates claims of disability discrimination raised in connection with an
otherwise appealable action under the substantive standards of section 501 of the
Rehabilitation Act. Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 28.
The standards under the ADA, as amended by the Americans with Disabilities Act
Amendments Act of 2008, have been incorporated into the Rehabilitation Act, and the
Board applies them to determine whether there has been a Rehabilitation Act violation.
Id.11
population. 29 C.F.R. § 1630.2(j)(1)(ii). “Substantially limits” is not meant to be
a demanding standard, 29 C.F.R. § 1630.2(j)(1)(i), and the definition of disability
is to be “construed in favor of broad coverage of individuals,” to the maximum
extent permitted by the terms of the ADA, as amended by the ADA Amendments
Act of 2008 (ADAAA), 42 U.S.C. § 12102(4)(A); 29 C.F.R.
§ 1630.1(c)(4).
¶24In this case, the appellant alleged that stress was the cause of her
October 29, 2015 collapse at work and ensuing hospitalization, as well as the
period of weakness and limited mobility thereafter. IAF, Tab 41 at 8, 82, Tab 59,
Hearing Compact Disc (HCD) at 4:21 (testimony of the appellant). As discussed
above, Dr. G. observed in December 2015 that the appellant was experiencing
limited mobility in her lower extremities and would remain incapacitated until
December 28, 2015. IAF, Tab 6 at 212-20. In his January 6, 2016 letter stating
that the appellant was requesting an accommodation, Dr. G. specifically discussed
the appellant’s continued restricted mobility, explaining that she had limited
mobility and strength in her lower extremities, required “assistive devices for
ambulation,” and that her condition was improving but “far from baseline.” Id.
at 162. Dr. G. explained that although the appellant’s condition had been
difficult to diagnose, the “working diagnosis” for her lower extremity weakness
was conversion reaction attributable to an untenable work situation and sleep
deprivation, as it related to her onerous commute to Baltimore. Id. In his
March 8, 2016 letter, Dr. G. wrote that the appellant was still having low back
pain and that his previously mentioned accommodations were “medically
necessary.” Id. at 88.
¶25Under the broad coverage contemplated by the ADAAA, we find that the
documentation the appellant provided was sufficient to conclude that she had a
physical impairment that substantially limited at least one major life activity. See
29 C.F.R. § 1630.2(h) (including any physiological or mental or psychological
condition in the definition of a physical impairment); 29 C.F.R. § 1630.2(i)(1)(i)12
(including walking and standing as major life activities). Although the
administrative judge focused on Dr. G.’s March 8, 2016 comment that the
appellant had “some continued low back pain,” her earlier medical documentation
as described above indeed shows that her condition was sufficiently severe, for a
period of at least 2 months, to conclude that she was disabled at the time she
requested reasonable accommodation. IAF, Tab 6 at 88, 162, 212-20. To this
end, the regulations explicitly state that “transitory and minor” conditions are not
excluded from coverage under this definition of disability.4 29 C.F.R.
§ 1630.2(j)(ix). As such, we conclude that the appellant was an individual with a
disability.5
¶26Both a claim of disability discrimination based on an individual’s status as
disabled and a claim based on the agency’s failure to reasonably accommodate
that disability require that the individual be “qualified.” Haas, 2022 MSPB 36,
¶ 28. To be a qualified individual with a disability, the appellant must show that
she can “perform the essential functions of the . . . position that [she] holds or
desires” with or without reasonable accommodation. 42 U.S.C. § 12111(8). In
this case, we also conclude that the appellant was a qualified individual with a
disability because her medical documentation does not suggest, nor has either
party alleged, that she could not perform the essential functions of her position
with or without reasonable accommodation.6 See IAF, Tab 6 at 88, 162. Indeed,
4 In the initial decision, the administrative judge should have, at a minimum, evaluated
whether the appellant met one of the remaining definitions of disability. To establish
disability discrimination on the basis of a failure to accommodate, the appellant must
establish coverage under the “actual disability” or the “record of” prongs of the
definition of disability, whereas she need only establish coverage under the “regarded
as” prong of the definition of disability in order to prove a claim of disparate treatment
discrimination. 29 C.F.R. § 1630.2(g)(1)-(3).
5 Even if the agency was unfamiliar with the appellant’s condition, conversion disorder,
it could have sought additional information about the condition. In any event, Dr. G.’s
notes were clear about its impact on the appellant.
6 Because the record is fully developed as to the appellant’s disability discrimination
affirmative defenses, the Board can analyze the claims without remand. Forte v.
Department of the Navy , 123 M.S.P.R. 124, ¶ 27 (2016). 13
Dr. G. repeatedly indicated that he believed that the appellant could perform her
job functions without an onerous commute. Id. at 162. The appellant testified at
the hearing that Dr. G. said she was still able to work and that she wanted to
work. HCD at 5:12 (testimony of the appellant). The agency does not argue or
point to anything in the record that refutes this evidence. In fact, the appellant’s
supervisor indicated at the hearing that he believed that the appellant could
perform the essential functions of her position. HCD at 48:14 (testimony of the
appellant’s supervisor). The deciding official also acknowledged that the
appellant was capable of working. HCD at 1:56:50 (testimony of the deciding
official). Accordingly, we find that the appellant is a qualified individual with a
disability.
The agency failed to reasonably accommodate the appellant.
¶27Because the administrative judge found that the appellant was not an
individual with a disability, he concluded that she did not prove that the agency
improperly denied her a reasonable accommodation. ID at 24. To establish
disability discrimination based on a failure to accommodate claim, an employee
must show that: (1) she is an individual with a disability, as defined by 29 C.F.R.
§ 1630.2(g); (2) she is a qualified individual with a disability, as defined by
29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable
accommodation. Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 13
(2015). As explained above, we find that the appellant proved that she is a
qualified individual with a disability. Therefore, the relevant question here is
whether the agency failed to provide the appellant with reasonable
accommodation.
¶28An agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue
hardship on its business operations. 29 C.F.R. § 1630.9(a); see Miller,
121 M.S.P.R. 189, ¶ 13. Reasonable accommodation includes modifications to14
the manner in which a position is customarily performed in order to enable a
qualified individual with a disability to perform the essential job functions.
Miller, 121 M.S.P.R. 189, ¶ 13; EEOC Notice No. 915.002, Enforcement
Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act (Oct. 17, 2002), http://www.eeoc.gov/policy/
docs/accommodation.html (last visited July 9, 2024).
¶29Once an appellant has requested an accommodation, the employer must
engage in an interactive process to determine an appropriate accommodation.
Sanchez v. Department of Energy , 117 M.S.P.R. 155, ¶ 17 (2011). “The
appropriate reasonable accommodation is best determined through a flexible,
interactive process that involves both the employer and the individual with a
disability.” 29 C.F.R. part 1630, appendix, § 1630.9. In this case, the record is
clear that the agency did not properly engage in the interactive process. Dr. G.’s
January 6, 2016 letter was sufficient to apprise the agency of the appellant’s
disability, contained an explicit request for reasonable accommodation, and was
more than adequate for the agency to move to the next step of the interactive
process. See IAF, Tab 6 at 162. It is well-established that a request for
telecommuting or a shorter commuting time because of a disability triggers an
agency’s responsibility under the Rehabilitation Act. See, e.g., Barney G. v.
Social Security Administration , EEOC Appeal No. 2021000802, 2022 WL
4546523, at *8 n.6 (Sept. 12, 2022). Although, as the administrative judge
pointed out, the appellant did not respond to the agency’s subsequent request to
submit her case to the FOH, notably, the agency’s request did not state that the
agency needed further information or that the appellant’s request would be denied
if the matter were not submitted to the FOH. ID at 24; IAF, Tab 6 at 158.
¶30In the agency’s February 6, 2016 letter closing the appellant’s reasonable
accommodation case, it specified that it was denying her request because she had
not informed her supervisor “verbally or in writing what specific reasonable
accommodation [she was] requesting,” and because her medical documentation15
did not “identify” her medical condition. IAF, Tab 6 at 134. As explained above,
these justifications are clearly incorrect. Although the agency also later told the
appellant that it was still open to reasonable accommodation discussions, it still
maintained that she needed to submit additional information supporting her
request. Id. at 91. However, the EEOC’s Enforcement Guidance states that an
employer cannot ask for documentation when the individual has already provided
the employer with sufficient information to substantiate that she has a disability
and needs the reasonable accommodation requested. See EEOC Notice
No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act , Question 8 (Oct. 17, 2002),
http://www.eeoc.gov/policy/docs/accommodation.html (last visited July 9, 2024).
We therefore find that the agency did not properly engage in the interactive
process.
¶31Nevertheless, a failure to engage in the interactive process alone does not
violate the Rehabilitation Act; rather, the appellant must show that this omission
resulted in a failure to provide reasonable accommodation. Sanchez,
117 M.S.P.R. 155, ¶ 18. In other words, the appellant must establish that a
reasonable accommodation existed. See Clemens v. Department of the Army ,
120 M.S.P.R. 616, ¶ 17 (2014) (finding that an appellant’s mere assertion that the
agency could have allowed him to use specific software was insufficient to
establish his burden that an accommodation existed and was reasonable); see also
Humphrey v. Memorial Hospitals Association , 239 F.3d 1128, 1137-39 (9th Cir.
2001) (finding an employer liable for denial of reasonable accommodation when
it failed to engage in the interactive process which caused the denial of an
effective accommodation).
¶32Here, the appellant repeatedly identified what she believed to be an
effective accommodation, i.e., to be reassigned to the Washington, D.C. District
Office. IAF, Tab 6 at 162, 214; HCD (testimony of the appellant). As Dr. G.
specifically explained in his January 6 letter, he believed that an accommodation16
to help the appellant perform her work duties was one where “she did not have an
onerous commute.” IAF, Tab 6 at 162. He explained that “the major cause of
[the appellant’s] current condition related to her being transferred” to a new city
(Baltimore), resulting in “significant and dangerous sleep deprivation” that
“adversely affect[ed] her performance,” but that he believed she would be capable
of doing her job out of the agency’s Washington, D.C. office, where she would
not have a long commute. Id. Based on the record before us, it appears that a
reassignment to the Washington, D.C. District Office would have been an
effective accommodation, especially given that the appellant had previously
worked out of the Washington D.C. District Office without issue. We
acknowledge, however, that she did not identify any available vacancies in the
Washington, D.C. District Office. Clemens, 120 M.S.P.R. 616, ¶ 17.
¶33Nonetheless, Dr. G. specified that an effective accommodation for the
appellant was one where “ she did not have an onerous commute .” IAF, Tab 6
at 162 (emphasis added). Although the record indicates that the appellant did not
specifically request telework as a reasonable accommodation, she testified at
length at the hearing that she had previously requested to telework, at least in part
due to her commute, and that she also wanted to work from home during the
disputed period. HCD at 4:04 (testimony of the appellant). The appellant
testified that most of her colleagues teleworked and that she could do the same
work that she was doing in the office from her home. HCD at 4:12 (testimony of
the appellant); see also IAF, Tab 41 at 8. Although the deciding official testified
that telework is granted at a manager’s discretion and that typically employees do
not telework until they have been employed with the agency for 1 year, the
appellant had been working at the Baltimore District Office for over a year at the
time of her medical incident. HCD at 1:45 (testimony of the deciding official).
Additionally, while the appellant testified that her supervisor told her that
telework is a “privilege,” and the agency’s hearing questioning suggests that the
appellant may have told her supervisor at one point in time that she did not have a17
reliable internet connection, there is no testimony or other evidence in the record
indicating that telework was unavailable to the appellant. HCD at 4:11, 5:14:15
(testimony of the appellant). And telework, like the appellant’s request to change
duty stations, certainly would have accommodated her ambulation, sleep, and
commute issues. See IAF, Tab 6 at 162.
¶34In sum, although we cannot conclusively say that a reassignment to the
Washington, D.C. District Office would have been an effective and reasonable
accommodation, we find that had the agency correctly handled the appellant’s
medical documentation and properly engaged in an interactive reasonable
accommodation process, that telework, at the least, would have been an effective
accommodation such that the appellant would not have an onerous commute.7
The agency, however, failed to properly engage in the interactive process and
thus did not provide the appellant with a reasonable accommodation.
Accordingly, we find that the appellant proved her claim of disability
discrimination on the basis of a failure to reasonably accommodate.
The appellant proved that disability discrimination was a but-for cause of her
removal.
¶35As noted above, the appellant also raised a claim of status-based disability
discrimination. ID at 23. In Pridgen, 2022 MSPB 31, ¶ 42, the Board clarified
that disparate treatment disability discrimination claims should be analyzed under
the same analytical framework as disparate treatment discrimination claims under
Title VII. Thus, consistent with the above, the appellant bears the burden of
proving by preponderant evidence that her disability was a motivating factor in
the removal action. Pridgen, 2022 MSPB 31, ¶ 40. However, to obtain the full
measure of relief available under the statute, the appellant must show that such
7 Additionally, extending the appellant’s leave could have also been a reasonable and
effective accommodation, which the agency refused to do. See EEOC Notice
No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act (Oct. 17, 2002),
http://www.eeoc.gov/policy/docs/accommodation.html (last visited July 9, 2024).18
discrimination was a but-for cause of the employment outcome. Id., ¶¶ 20-22, 42.
The but-for standard generally requires a showing that the harm would not have
occurred in the absence of—that is, but for—the discriminatory conduct. Wilson,
2024 MSPB 3, ¶ 15. The methods by which an appellant may prove a claim of
discrimination or retaliation are: (1) direct evidence; (2) circumstantial evidence,
which may include (a) evidence of “suspicious timing, ambiguous statements oral
or written, behavior toward or comments directed at other employees in the
protected group, and other bits and pieces from which an inference of
discriminatory intent might be drawn,” also known as “convincing mosaic;”
(b) comparator evidence, consisting of “evidence, whether or not rigorously
statistical, that employees similarly situated to the plaintiff other than in the
characteristic . . . on which an employer is forbidden to base a difference in
treatment received systematically better treatment; (c) evidence that the agency’s
stated reason for its action is “unworthy of belief, a mere pretext for
discrimination, (i.e., the burden-shifting standard under McDonnell Douglas
Corporation v. Green , 411 U.S. 792, 802-04 (1973)); and (3) some combination
of direct and indirect evidence. Pridgen, 2022 MSPB 31, ¶ 24.
¶36In cases that involve at least some circumstantial evidence, the Board has
set forth two methods by which an appellant may establish but-for causation, i.e.,
the pretext framework or the mixed-motive framework. Wilson, 2024 MSPB 3,
¶¶ 15-19. Under the pretext framework, an appellant may use the McDonnell
Douglas evidentiary framework to establish that discrimination or retaliation was
a but-for cause of the challenged personnel action by showing that the employer’s
reason is pretextual, or by showing that it is more likely than not that the agency
was motivated by discrimination or retaliation. Id., ¶¶ 16-17. Alternatively,
under the mixed-motive framework, if an appellant proves motivating factor and
the agency does not prove by preponderant evidence that it would have taken the
same action in the absence of discrimination, the appellant has established but-for
causation. Id., ¶ 18. An appellant may choose to show but-for causation under19
the pretext framework or under the mixed-motive framework, or by proceeding
under both theories simultaneously. Id., ¶ 19.
¶37Upon review of the record, we find that disability discrimination was a
but-for cause of the removal action. The record is replete with evidence
indicating that the agency took its action against the appellant because of her
medical condition—or rather, its refusal to properly acknowledge her medical
condition and handle her accommodation request. First, both the notice of
proposed removal and the removal decision letters signal that the agency
improperly considered the appellant’s disability in taking its action against her.
For example, the appellant’s supervisor states in the notice of proposed removal
that he considered Dr. G.’s statement that the appellant “could be working in the
D.C. office,” but stressed the appellant does not “work in the D.C. Office; [she]
work[s] in the Baltimore District Office.” IAF, Tab 6 at 61. He also stated that it
was “evident” based on his reading of the appellant’s medical documentation that
she “had the ability to report to the Baltimore District Office.” Id. Additionally,
in discussing the appellant’s potential for rehabilitation, the appellant’s
supervisor claimed, “[t]hrough your actions, you have removed yourself from the
office in an attempt to get what you want, rather than work through the proper
administrative channels.” Id. at 62. These comments suggest outright disbelief
of Dr. G.’s conclusion that the appellant was medically unable to work out of the
Baltimore District Office and that she required reasonable accommodation.
¶38In the appellant’s response to the notice of proposed removal, she reiterated
that she was “still medically unable to continue to work in the Baltimore office”
but that she could return to work in the Washington, D.C. District Office. Id.
at 52. However, in the decision letter, the deciding official stated that he found
that the appellant has no potential for rehabilitation because “[y]our written
response and actions do not indicate any plan to return to work in the Baltimore
District Office. I can only conclude that you refuse to work in the Baltimore
District Office and won’t return to work until you get your way, regardless of20
what the medical documentation states.” Id. at 43. Given Dr. G.’s clear and
unambiguous explanation regarding why the appellant’s medical conditions
prevented her from working at the Baltimore office, these comments about the
appellant’s “refusal” to return to Baltimore until she “gets her way” certainly
indicate disability discrimination.
¶39This conclusion is also supported by the hearing testimony. At the hearing,
the appellant’s supervisor testified that in issuing the notice of proposed removal,
he considered that the appellant “didn’t have any intention of returning to the
Baltimore District Office” and that he believed that her medical documentation
did not support her being unable to return to Baltimore. HCD at 41:00 (testimony
of the appellant’s supervisor). He also testified that he determined removal to be
the appropriate penalty in this case because the issue with the appellant “kept
coming back to that she wanted to work in the D.C. office.” HCD at 54:30
(testimony of the appellant’s supervisor). Similarly, the deciding official testified
that he found the nature of the appellant’s offense very serious in part because
she did not submit “adequate medical information,” and that he reconciled
sustaining the appellant’s removal even though she did not have any past
disciplinary history in part because of “the lack of substantive sufficient evidence
that she couldn’t return to work.” HCD at 2:07, 2:11 (testimony of the deciding
official). The deciding official also testified that he considered the appellant’s
potential for rehabilitation and, at the time he sustained her removal, did not think
that the appellant would return to the Baltimore District Office “voluntarily.”
HCD at 2:17:30 (testimony of the deciding official). Again, we find that this
testimony is evidence that the proposing and deciding officials considered the
appellant’s medical condition in deciding to remove her. Specifically, this
evidence shows that the proposing and deciding officials refused to acknowledge
that the appellant’s medical evidence stated that she had a disabling medical
condition and required a reasonable accommodation in proposing and effectuating
her removal. Put another way, the record shows that the agency would not have21
removed the appellant had it properly acknowledged her medical condition and
granted her leave requests or otherwise appropriately engaged in the interactive
process with her.
¶40Consequently, we find that the appellant proved her affirmative defenses of
disability discrimination based on disparate treatment and a failure to provide a
reasonable accommodation.
ORDER
¶41We ORDER the agency to cancel the removal. See Kerr v. National
Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
¶42We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶43We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶44No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not22
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶45For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,23
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.24
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file25
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 26
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 27
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.28
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Manga_MariaPH-0752-17-0096-I-1__Final_Order.pdf | 2024-07-10 | MARIA MANGA v. SMALL BUSINESS ADMINISTRATION, MSPB Docket No. PH-0752-17-0096-I-1, July 10, 2024 | PH-0752-17-0096-I-1 | NP |
1,018 | https://www.mspb.gov/decisions/nonprecedential/Stanford_BrandonCH-0752-23-0065-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRANDON STANFORD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-23-0065-I-1
DATE: July 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brandon Stanford , Kansas City, Missouri, pro se.
Lori L. Markle , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as settled. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2In October 2022, the agency removed the appellant from the position of
Postal Clerk based on a charge of unacceptable conduct. Stanford v. U.S. Postal
Service, MSPB Docket No. CH-0752-23-0065-I-1, Initial Appeal File (0065 IAF),
Tab 2. The next month, the appellant filed an initial appeal, challenging the
removal action. 0065, Tab 1. After some development of the record, the parties
entered into a settlement agreement. 0065 IAF, Tab 25. Among other things, the
agreement provided that the appellant’s removal would be replaced with a
resignation, the Board appeal would be dismissed with prejudice, and the Board
would retain jurisdiction for enforcement purposes. Id. at 5-7, 12. The
administrative judge issued notice of her intent to dismiss the appeal as settled,
absent a response from either party to the contrary. 0065 IAF, Tab 26. Since
neither party did respond, the administrative judge dismissed the appeal as settled
in March 2023. 0065 IAF, Tab 28, Initial Decision (0065 ID).
¶3In September 2023, the appellant filed a new pleading, which was initially
docketed as a new Board appeal. Stanford v. U.S. Postal Service , MSPB Docket
No. CH-0752-23-0469-I-1, Initial Appeal File (0469 IAF), Tab 1. Within, the
appellant simply stated as follows:
I came to the MSP[B] for wrongfully being placed on emergency
placement by the USPS. During the multiple talks with the agency
representative and the Judge I told them of a settlement that was
signed by management that the agency lawyer told the judge and
myself wasn’t a valid settlement. On May 17, 2023[,] that very
settlement was awarded to me. However[,] the fact that I resigned
because that was the main document that I had to stand on because I
knew I did nothing wrong.
Id. at 5. In the subsequent period, the administrative judge issued multiple
jurisdictional and timeliness orders, but the appellant did not respond to any.
0469 IAF, Tabs 2-5. He did, however, appear at a November 2023 status
conference. 0469 IAF, Tab 9. There, the appellant indicated that his intent was
to challenge the validity of the earlier settlement agreement. Id. Consequently,2
the administrative judge issued a December 2023 decision, dismissing this second
appeal and referring the matter to the Clerk of the Board for docketing as a
petition for review in the original Board appeal. 0469 IAF, Tabs 9, 10, Initial
Decision.
¶4The Clerk of the Board issued a December 2023 acknowledgement letter.
Stanford v. U.S. Postal Service , MSPB Docket No. CH-0752-23-0065-I-1,
Petition for Review (0065 PFR) File, Tab 2. Among other things, it explained
that the appellant’s September 2023 filing was now being construed as a petition
for review of the March 2023 initial decision for his original appeal. Id. The
acknowledgement letter further explained that the appellant’s petition appeared
untimely by several months. Id. at 2. Accordingly, the Clerk of the Board
instructed the appellant to establish the timeliness of his petition or good cause
for its untimeliness. Id. The appellant did not respond.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114(e). To establish good cause for an untimely filing, a party must show
that he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980). The Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his petition. Moorman v. Department of3
the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶6As stated in the March 2023 initial decision dismissing the appellant’s
original appeal as settled, a petition for review of that decision was due in April
2023. 0065 ID at 3. The appellant did not submit anything to the Board during
that period or the months that followed, until September 2023. Although the
appellant was warned that this September 2023 pleading appeared to be an
untimely petition for review and given an opportunity to present good cause for
his untimeliness, the appellant did not respond. We therefore find the appellant’s
petition untimely filed, without a showing of good cause.2
¶7Accordingly, we dismiss the petition for review. This is the final decision
of the Merit Systems Protection Board regarding the timeliness of the petition for
review. The initial decision remains the final decision of the Board regarding the
dismissal of the appellant’s removal appeal as settled.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 Even if we were to find the petition timely, or excuse its untimeliness, the appellant
has not presented any basis for invalidating his settlement agreement with the agency.
A party may file a petition for review challenging the validity of a settlement agreement
if the party believes that the agreement is unlawful, involuntary, or the result of fraud or
mutual mistake. Barker v. Department of Agriculture , 100 M.S.P.R. 695, ¶ 4 (2006).
Here, we have a prehearing summary indicating that the appellant intended to challenge
the validity of his settlement agreement. 0469 IAF, Tab 9. But the appellant has not
presented any argument or evidence about the same.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Stanford_BrandonCH-0752-23-0065-I-1__Final_Order.pdf | 2024-07-10 | BRANDON STANFORD v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-23-0065-I-1, July 10, 2024 | CH-0752-23-0065-I-1 | NP |
1,019 | https://www.mspb.gov/decisions/nonprecedential/Robbins_Paul_A_AT-0752-19-0191-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL A ROBBINS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-19-0191-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brian A. Robbins , Canyon Lake, California, for the appellant.
Lori L. Markle , Esquire, and Roderick Eves , Esquire, St. Louis, Missouri,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s decision denying his application for early retirement under
a Voluntary Early Retirement Authority (VERA). Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to address the issue of whether a partial military service credit
deposit in February 2018 might have made the appellant eligible for early
retirement under the terms of the VERA, we AFFIRM the initial decision.
¶2On January 4, 2018, the agency offered a nationwide VERA for Mail
Handlers who were either (1) at least 50 years of age with at least 20 years of
service or (2) were any age with at least 25 years of service.2 Id. at 26.
The VERA was authorized by the Office of Personnel Management (OPM)
through March 31, 2018. Id. at 26-27. The appellant, a Mail Handler who was 48
years old at the time, with 23 years of agency service, made a deposit covering 3
years of military service. IAF, Tab 1 at 2, Tab 12 at 21, 24, 30-32. However, on
February 21, 2018, the agency noted a discrepancy in his military service dates
that indicated he actually had 5 years of military service. IAF, Tab 12 at 22, 24,
28, 31-32. The appellant obtained and submitted corrected documentation from
the Defense Finance and Accounting Services (DFAS), and he paid the corrected
amount due in full. Id. at 18, 31. However, the agency found that the appellant
2 There were certain other eligibility conditions that are not at issue in the instant
appeal. IAF, Tab 12 at 27.2
was ineligible for early retirement because he had not completed his military
service deposit before the March 31, 2018 deadline passed. IAF, Tab 7 at 3-4.
¶3The appellant filed a Board appeal and declined a hearing. IAF, Tab 1
at 1-2. After the close of the record, the administrative judge issued an initial
decision affirming the agency’s decision. IAF, Tab 17, Initial Decision (ID).
He found that the appellant did not complete all of the steps necessary for his
voluntary early retirement application until after the VERA deadline had already
passed, and although the appellant’s inability to do so may not have been his
fault, these circumstances did not render the agency’s decision improper. ID at 4.
¶4The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
¶5The appellant’s arguments on review do not establish that the administrative
judge made any error of fact or law warranting reversal of the initial decision.
We have considered, however, whether the appellant’s deposit for three years of
military service was sufficient to make the appellant eligible for the VERA. We
find that it was not.
¶6It is undisputed that, within the VERA timeframe, the agency accepted a
deposit payment from the appellant covering 3 years of military service from
September 22, 1988, to September 21, 1991. IAF, Tab 1 at 2, Tab 12 at 21, 24,
30-32. These 3 additional years of service would have been sufficient to bring
the appellant’s total creditable service to 26 years, thus bringing him within the
scope of the VERA. However, we find that this did not constitute a valid deposit
under 5 U.S.C. § 8422(e), which requires that the amount of the deposit be based
on “each period of military service.” 5 U.S.C. § 8422(e)(1)(A). OPM, which has
been explicitly authorized to issue implementing regulations, 5 U.S.C. § 8422(e)
(7)(C), has interpreted “period of military service” to mean “distinct period of
military service,”3 5 C.F.R. § 842.307(a), (d). The regulations provide that an
3 The validity of OPM’s regulations has not been challenged.3
employee may make a deposit for “any distinct period of military service.”
5 C.F.R. § 842.307(a). They further provide as follows:
Distinct periods of service . A deposit is not considered to have
been made for any distinct period of service unless the total amount
due for the period is paid in full. A “distinct period” for this purpose
is the total years, months, and days from the date of entry on active
duty (or from January 1, 1957, if later) to the date of final discharge
for enlisted military personnel, or to the date of final release from
active duty for officers and reservists. A “distinct period” also
includes consecutive periods of service where there is no break in
service, but does not include any lost time.
5 C.F.R. § 842.307(d). Reviewing the appellant’s DD-214 in light of OPM’s
regulations, we find that he had but one distinct period of military service,
spanning 5 years from September 22, 1988 to September 21, 1993, without a
break. IAF, Tab 9 at 28. The deposit that he tendered to the agency in
February 2018 covered only 3 years of that service, from September 22, 1988, to
September 21, 1991. IAF, Tab 1 at 2, Tab 12 at 21, 24, 30-32. This was not a
distinct period of military service for purposes of the regulation; rather, it was
part of a distinct period. We therefore find that, as a matter of law, the appellant
was not considered to have made a deposit for his military service when he
tendered this partial payment in February 2018. See 5 C.F.R. § 842.307(d).
Payment in full was not made until after the VERA expired. IAF, Tab 12 at 18.
We therefore agree with the administrative judge that the appellant did not
become eligible for early retirement before the VERA expired. ID at 4.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your
claims determines the time limit for seeking such review and the appropriate
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Robbins_Paul_A_AT-0752-19-0191-I-1__Final_Order.pdf | 2024-07-09 | PAUL A ROBBINS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-19-0191-I-1, July 9, 2024 | AT-0752-19-0191-I-1 | NP |
1,020 | https://www.mspb.gov/decisions/nonprecedential/Wall_William_E_DC-0752-19-0812-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM E. WALL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-19-0812-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert Lum , Brooklyn, New York, for the appellant.
Juan Delgado , Esquire, San Juan, Puerto Rico, for the appellant.
Brandy A. Osimokun , Esquire, Charlotte, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. On petition for review, the appellant alleges that the
administrative judge erred in finding he did not prove his due process claim, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
deciding official was found not credible in another appeal, and an employee had
her removal for a time and attendance related infraction reduced to a letter of
warning through a settlement agreement. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
2 In his petition for review, the appellant argues that the deciding official violated his
due process rights when he considered in his analysis of the appropriate penalty for the
sustained misconduct two additional acts of misconduct not set forth in the agency’s
proposal notice. Petition for Review File, Tab 1 at 4; Initial Appeal File (IAF), Tab 6
at 19. The administrative judge found that, because the appellant raised these matters in
his reply to the proposed removal, he was on notice that they would be considered by
the deciding official. IAF, Tab 6 at 113, Tab 18, Initial Decision at 13. We agree with
the administrative judge’s analysis and observe that 5 C.F.R. § 752.404(g)(1) provides
that, in rendering a decision on a proposed adverse action, the agency will consider the
reasons specified in the notice and any answer of the employee or his representative, or
both. We also observe that in Wilson v. Department of Homeland Security ,
120 M.S.P.R. 686, ¶¶ 10-12 (2014 ), the Board found that, although the deciding official
considered facts not raised in the proposal notice, there was no due process violation
because the appellant clearly raised the matter in her reply. 2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Wall_William_E_DC-0752-19-0812-I-1__Final_Order.pdf | 2024-07-09 | WILLIAM E. WALL v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-19-0812-I-1, July 9, 2024 | DC-0752-19-0812-I-1 | NP |
1,021 | https://www.mspb.gov/decisions/nonprecedential/Caboverde_Rudolfo_J_AT-0831-20-0535-I-1__FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RUDOLFO J. CABOVERDE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-20-0535-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rudolfo J. Caboverde , West Palm Beach, Florida, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of the final decision of the Office of
Personnel Management (OPM) denying his application for benefits as untimely
filed after OPM completely rescinded its final decision. On petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the appellant requests that the Board review his application for benefits. Petition
for Review (PFR) File, Tab 1 at 4-5.2 Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant does not make any arguments relevant
to jurisdiction. For the reasons discussed in the initial decision, we find that the
administrative judge properly dismissed this appeal for lack of jurisdiction.
Initial Appeal File (IAF), Tab 5, Initial Decision at 1-2. If the appellant is
dissatisfied with any subsequent OPM reconsideration or final decision regarding
his application, he may appeal that decision to the Board. See 5 U.S.C.
2 The appellant also provides additional documents, i.e., a copy of his driver’s license
and his passport, PFR File, Tab 1 at 16-17, ostensibly to correct his full name for
purposes of his application for benefits, compare IAF, Tab 1 at 1-3, with PFR File,
Tab 1 at 12, 16-17. These documents, however, are not material to the outcome of his
Board appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980 )
(stating that the Board will not grant a petition for review based on new evidence absent
a showing that it is of sufficient weight to warrant an outcome different from that of the
initial decision). Moreover, the Board is without authority to correct any application
that the appellant has filed with OPM. 2
§ 8347(d); 5 C.F.R. § 831.110. Any future appeal must be filed within the time
limits set forth in the Board’s regulations.3 See 5 C.F.R. § 1201.22(b)(1).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 The appellant filed his Board appeal on May 15, 2020, IAF, Tab 1 at 5, approximately
1 year after the issuance of OPM’s final decision, id. at 3. However, in light of OPM’s
rescission of its final decision and its indication that it would issue a new initial
decision from which the appellant may request reconsideration, the Board need not
address the potential untimeliness of the appeal. IAF, Tab 4 at 4; see 5 C.F.R.
§ 1201.22(b).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Caboverde_Rudolfo_J_AT-0831-20-0535-I-1__FInal_Order.pdf | 2024-07-09 | RUDOLFO J. CABOVERDE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-20-0535-I-1, July 9, 2024 | AT-0831-20-0535-I-1 | NP |
1,022 | https://www.mspb.gov/decisions/nonprecedential/Vaughn_Dovie_P_DA-0831-20-0506-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOVIE P. VAUGHN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0831-20-0506-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dovie P. Vaughn , Austin, Texas, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of an Office of Personnel Management (OPM) decision
concerning her Federal Employees’ Group Life Insurance (FEGLI) benefits for
lack of Board jurisdiction. On petition for review, the appellant argues that,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
contrary to OPM’s motion to dismiss, she did not request an “increase” in her
FEGLI benefits, as her FEGLI benefits had been cancelled. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Vaughn_Dovie_P_DA-0831-20-0506-I-1__Final_Order.pdf | 2024-07-09 | DOVIE P. VAUGHN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0831-20-0506-I-1, July 9, 2024 | DA-0831-20-0506-I-1 | NP |
1,023 | https://www.mspb.gov/decisions/nonprecedential/Keeler_Steven_E_SF-0831-20-0370-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN E. KEELER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-20-0370-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven E. Keeler , Los Angeles, California, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of a final decision issued by the Office of Personnel
Management (OPM), which designated a representative payee, as untimely filed
by more than 5 months without good cause shown for the delay. Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to FORWARD the appellant’s claim regarding his mental
capacity to OPM, we AFFIRM the initial decision.
On petition for review, the appellant does not challenge, and we discern no
basis to disturb, the administrative judge’s conclusion that his appeal was
untimely filed by more than 5 months. Petition for Review (PFR) File, Tab 1
at 1; Initial Appeal File (IAF), Tab 14, Initial Decision (ID) at 3-5; see 5 C.F.R.
§ 1201.22(b)(1). Instead, the appellant seemingly challenges the administrative
judge’s finding that he did not show good cause for the delay. To this end, he
identifies two individuals “who were involved in delaying [his] response”;
however, he provides no further information regarding the purported actions of
these two individuals. PFR File, Tab 1 at 1. This vague assertion does not
provide a basis to disturb the administrative judge’s reasoned conclusion that the
appellant failed to show good cause for his untimely filing. ID at 5-6; see
Glover v. Office of Personnel Management , 92 M.S.P.R. 48, ¶¶ 6-7
(2002) (finding that the appellant’s vague assertions regarding postal delays of
questionable relevance did not show good cause for his untimely filing), aff’d, 66
F. App’x 201 (Fed. Cir. 2003) ; 5 C.F.R. § 1201.22(c). Accordingly, we affirm2
the initial decision insofar as the administrative judge concluded that the
appellant’s appeal of OPM’s final decision was untimely filed with no good cause
shown for the delay.
In his filings before the administrative judge, the appellant seemingly
asserted that, following the issuance of OPM’s final decision, he regained his
mental capacity and, therefore, no longer needed a representative payee to act on
his behalf. IAF, Tab 1 at 1, Tab 7 at 1. To this end, he averred that a physician
had recently informed him that he was “well.” IAF, Tab 1 at 1. Following the
issuance of the initial decision, OPM issued regulations that specifically address,
among other things, “[w]hen representative payments will be stopped.” 5 C.F.R.
§ 849.602.2 The regulations provide a specific mechanism by which an annuitant
can provide certain information to OPM in order to demonstrate that he has
regained capacity and is now “mentally and physically able to manage or direct
the management of benefit payments.” Id. Among other things, an annuitant may
provide “[a] physician’s or other licensed health practitioner’s statement
regarding the annuitant’s condition, or a statement by a medical officer of the
institution where the annuitant is or was confined, showing that the annuitant is
able to manage or direct the management of his or her funds.” Id.
The Board has jurisdiction to adjudicate an individual’s rights and interests
under the Civil Service Retirement System only after OPM has rendered a final
decision on the matter. Reid v. Office of Personnel Management , 120 M.S.P.R.
83, ¶ 6 (2013). Because OPM has not issued a final decision on this issue, we
forward the appellant’s claim regarding his mental capacity to OPM, and we order
OPM to issue a final decision that is appealable to the Board within 90 days of
2 OPM’s regulations implemented the Representative Payee Fraud Prevention Act of
2019 (RPFPA), Pub. L. No. 116-126, 134 Stat. 174. The RPFPA makes unlawful the
embezzlement or conversion of retirement benefits by a representative payee and
requires OPM to promptly revoke the certification of the representative payee in such
cases. 5 U.S.C. § 8345a(a).3
this Order. To the extent OPM fails to issue a final decision within 90 days, the
appellant may file a new appeal with the Board.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Keeler_Steven_E_SF-0831-20-0370-I-1__Final_Order.pdf | 2024-07-09 | STEVEN E. KEELER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-20-0370-I-1, July 9, 2024 | SF-0831-20-0370-I-1 | NP |
1,024 | https://www.mspb.gov/decisions/nonprecedential/Hobby_Geraldine_T_DC-831E-20-0322-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERALDINE TALLEY HOBBY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-831E-20-0322-I-1
DATE: July 9, 2024
THIS ORDER IS NONPRECEDENTIAL1
Geraldine Talley Hobby , Mitchellville, Maryland, pro se.
Jane Bancroft and Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
found that collateral estoppel barred the instant appeal of the reconsideration
decision by the Office of Personnel Management (OPM) denying her application
for disability retirement benefits. For the reasons discussed below, we GRANT
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the appellant’s petition for review, VACATE the initial decision, and REMAND
the case to the Washington Regional Office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant was employed as a Teacher for the District of Columbia
Public School System (DCPS) from 1967 until 1992. Initial Appeal File (IAF),
Tab 7 at 25. In 2006, she filed a Board appeal asserting that the DCPS
improperly denied her disability retirement benefits. Hobby v. Office of
Personnel Management , MSPB Docket No. DC-831E-06-0499-I-1, Initial
Decision (0499 ID) at 1 (June 7, 2006); IAF, Tab 13 at 48. The administrative
judge assigned to the matter issued an initial decision finding that the Board
lacked jurisdiction over the appeal because the appellant failed to establish that
OPM denied her application for retirement benefits in a final or reconsideration
decision. 0499 ID at 1-2; IAF, Tab 13 at 48-49. In so holding, the administrative
judge additionally appears to have found that the Board also lacked jurisdiction
because the appellant appeared to be covered by the D.C. Teachers’ Retirement
System, rather than either the Civil Service Retirement System (CSRS) or the
Federal Employees’ Retirement System (FERS). 0499 ID at 2; IAF, Tab 13 at 49.
The appellant filed a petition for review, which the Board denied, and thus the
initial decision became final on September 7, 2006. Hobby v. Office of Personnel
Management, MSPB Docket No. DC-831E-06-0499-I-1, Final Order at 1-2
(Sept. 7, 2006); IAF, Tab 13 at 14-15.
In August 2018, at the appellant’s request, OPM sent her separate
applications for deferred, disability, and immediate retirement. IAF, Tab 7 at 61.
OPM informed the appellant that the applications for disability and immediate
retirement were the same form and that it checked the box for disability
retirement for her. Id. On or about November 10, 2018, the appellant filed an
application for disability retirement under CSRS with OPM. IAF, Tab 132
at 146-53. On November 27, 2018, OPM issued a final decision denying the
appellant’s application for annuity benefits under FERS.2 IAF, Tab 7 at 62. The
following day, OPM informed the appellant that her application for disability
retirement appeared untimely filed and requested evidence necessary for a
competency determination. Id. at 63-64. On February 27, 2019, OPM again
informed the appellant that her disability retirement application appeared
untimely and requested evidence to make a competency determination. Id. at 65.
On March 8, 2019, OPM informed the appellant that it had determined that she
had no creditable service under CSRS and therefore its prior two requests for
competency verification were rescinded. Id. at 8. Shortly thereafter, OPM issued
an initial decision finding that the appellant was not entitled to disability
retirement benefits under CSRS. Id. at 9. After the appellant requested
reconsideration, OPM determined that she was covered under the D.C. Teachers’
Retirement System and took a refund of her contributions to this retirement
system after her separation from the DCPS. Id. at 4, 6. OPM further concluded
that there was no evidence the appellant made any contributions to CSRS and thus
she was not entitled to a retirement annuity under that system. Id. at 4. OPM
therefore dismissed the appellant’s disability retirement claim in a final
reconsideration decision. Id.
The appellant appealed OPM’s decision to the Board, asserting her
entitlement to CSRS retirement benefits. IAF, Tab 1 at 3-6. Once OPM
submitted its agency file, the administrative judge advised the parties that it
appeared the doctrine of collateral estoppel applied and ordered the appellant to
file evidence and argument to prove that her claim was not barred by collateral
estoppel. IAF, Tab 20 at 2-3. No further discussion was held on the merits of the
2 It is unclear whether the appellant also filed an application for retirement under FERS
or whether OPM mistakenly referenced FERS instead of CSRS. Moreover, the record
does not appear to contain an initial decision by OPM regarding the appellant’s
application for immediate retirement under FERS or CSRS. There also does not appear
to be a final decision on the appellant’s application for immediate retirement under
CSRS. 3
appellant’s case. After the parties responded, the administrative judge issued an
initial decision dismissing the appeal as barred by collateral estoppel. IAF,
Tab 37, Initial Decision (ID) at 1. In so holding, the administrative judge found
that the issue in the case at hand was identical to the issue in the appellant’s prior
Board appeal, the issue was litigated in that prior action, the determination on the
issue was necessary to the resulting judgment, and the appellant was fully
represented in the prior action. ID at 3-5.
The appellant has filed a petition for review of the initial decision, and the
agency has responded. Petition for Review (PFR) File, Tabs 12, 23. The
appellant argues that none of the elements of collateral estoppel have been met,
challenges the administrative judge’s decision to not recuse herself, and asserts
that she set out a prima facie case of discrimination regarding her termination
from the DCPS. PFR File, Tab 12 at 13-14, 27.
DISCUSSION OF ARGUMENTS ON REVIEW
This appeal is not barred by the doctrine of collateral estoppel.
The appellant challenges the administrative judge’s application of
collateral estoppel, and she asserts that a full and fair hearing has not been held.
PFR File, Tab 12 at 14. We agree.
Collateral estoppel, or issue preclusion, is appropriate when the following
conditions are met: (1) the issue is identical to that involved in the prior action;
(2) the issue was actually litigated in the prior action; (3) the determination on the
issue in the prior action was necessary to the resulting judgment; and (4) the party
against whom issue preclusion is sought had a full and fair opportunity to litigate
the issue in the prior action. Baney v. Department of Justice , 109 M.S.P.R. 242,
¶ 8 (2008). Regarding the third element, a determination in a prior action is
necessary to the resulting judgment when, had the appellant prevailed on the
issue, the outcome would have changed. See Luna v. Department of the Air
Force, 87 M.S.P.R. 232, ¶ 8 (2000) (finding a determination was not necessary to4
the resulting judgment when it would not have affected the outcome). The
purpose of this third requirement is “to prevent the incidental or collateral
determination of a nonessential issue from precluding reconsideration of that
issue in later litigation.” Mother’s Restaurant, Inc. v. Mama’s Pizza, Inc. ,
723 F.2d 1566, 1570-71 (Fed. Cir. 1983).
The 2006 initial decision held that the Board lacked jurisdiction because
the appellant had not shown that she filed an application for retirement with
OPM, or that OPM had denied her application in a final or reconsideration
decision. 0499 ID at 2; IAF, Tab 13 at 49; see 5 C.F.R. §§ 831.109(f), 831.110
(setting forth the right to appeal a final or reconsideration decision by OPM to the
Board). The administrative judge alternatively found that the information
submitted with the appellant’s initial appeal “appears to show that she was
covered by the D.C. Teachers’ Retirement System, not CSRS or FERS.” 0499 ID
at 2; IAF, Tab 13 at 49. We find that this finding was immaterial to the
determination that the Board lacked jurisdiction over the appeal. Indeed, the
determination of whether OPM had issued a final or reconsideration decision was
a jurisdictional one, whereas the appellant’s coverage by CSRS or any other
retirement system was a merits question. See Mangaliag v. Office of Personnel
Management, 65 M.S.P.R. 227, 230 (1994) (finding it would be inappropriate for
an administrative judge or the Board to address the merits of the appellant’s
entitlement to disability retirement benefits if OPM’s reconsideration decision
had not first adjudicated the issue); see also Hasanadka v. Office of Personnel
Management, 116 M.S.P.R. 636, ¶ 19 (2011) (finding the Board generally has
jurisdiction over an OPM determination on the merits of a matter affecting the
rights or interests of an individual under CSRS only after OPM has issued a final
decision). As such, a finding that the appellant was or was not covered by CSRS
was not necessary to the resulting judgment in the 2006 appeal, as the Board
nonetheless lacked jurisdiction to decide that issue in the absence of a
reconsideration decision by OPM. Accordingly, we will not apply the doctrine of5
collateral estoppel in this circumstance, and we remand this appeal for further
development of the record and to hold the appellant’s requested hearing.
As noted above, it is unclear from the record below whether the appellant is
appealing the denial of her application for immediate retirement or disability
retirement. OPM appears to have issued a final decision on the appellant’s
application for disability retirement benefits under CSRS and immediate
retirement under FERS. IAF, Tab 7 at 4, 62. Although its initial decision under
CSRS concerns only disability retirement benefits, the reconsideration decision
appears to reference the appellant’s application for both CSRS benefits and
disability retirement benefits. Id. at 4, 9. On remand, the administrative judge
should clarify which decisions the appellant is appealing and develop the record
as necessary.
The administrative judge did not abuse her discretion in denying the appellant’s
motion for recusal.
The appellant on review argues that the administrative judge erred in
denying her motion that she recuse herself. PFR File, Tab 12 at 13. When a
motion for recusal is made, the Board will review the administrative judge’s
denial of the motion for an abuse of discretion. Shoaf v. Department of
Agriculture, 97 M.S.P.R. 68, ¶¶ 7-12 (2004), aff’d, 158 F. App’x 267 (Fed. Cir.
2005). The Board’s regulations provide that a party may file a motion asking the
administrative judge to withdraw on the basis of personal bias or other
disqualification. 5 C.F.R. § 1201.42(b). In making a claim of bias or prejudice
against an administrative judge, a party must make a substantial showing of
personal bias to overcome the presumption of honesty and integrity of
administrative judges. Vaughn v. Department of the Treasury , 119 M.S.P.R. 605,
¶ 18 (2013). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d6
1358, 1362-63 (Fed. Cir. 2002). The appellant appeared to argue that the
administrative judge should recuse herself because of her handling of the
appellant’s motions for extensions of time. IAF, Tab 24 at 5. Claims of
perceived adjudicatory errors do not provide a basis for recusal, and the Board
will not infer bias based on an administrative judge’s case-related rulings.
See Vaughn, 119 M.S.P.R. 605, ¶ 18; Keefer v. Department of Agriculture ,
92 M.S.P.R. 476, ¶ 6 (2002). The appellant argues on review that it “felt that the
[administrative judge] was leaning towards the OPM [representative]” and did not
appear to know what laws to apply. PFR File, Tab 12 at 13. The appellant’s
allegations on review, which do not relate to any extrajudicial conduct by the
administrative judge, neither overcome the presumption of honesty and integrity
that accompanies an administrative judge nor establish that she showed a
deep-seated favoritism or antagonism that would make fair judgment impossible.
See Vaughn, 119 M.S.P.R. 605, ¶ 18.
Unrelatedly, the appellant on review additionally argues that she
established a prima facie case of employment discrimination apparently regarding
the DCPS’s decision to terminate her employment. PFR File, Tab 12 at 27. The
underlying merits of her termination are outside the scope of the instant appeal,
and thus we decline to consider these arguments. Additionally, the appellant on
review argues that the administrative judge abused her discretion in denying her
motions to extend the time to submit evidence. Id. at 13-14. We need not
address this argument as we are remanding this appeal and reopening the record.7
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Hobby_Geraldine_T_DC-831E-20-0322-I-1__Remand_Order.pdf | 2024-07-09 | GERALDINE TALLEY HOBBY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-831E-20-0322-I-1, July 9, 2024 | DC-831E-20-0322-I-1 | NP |
1,025 | https://www.mspb.gov/decisions/nonprecedential/Elam_Carolyn_L_DC-0714-19-0326-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROLYN LAVERN ELAM,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0714-19-0326-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stanley Snow , Washington, D.C., for the appellant.
David R. Scruggs , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the agency’s removal action taken under 38 U.S.C. § 714
as untimely filed. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify why the appellant is not entitled to waiver or tolling of the statutory filing
deadline, we AFFIRM the initial decision.
BACKGROUND
Effective January 22, 2019, the agency removed the appellant from her
Medical Administration Specialist position under the authority of 38 U.S.C.
§ 714. Initial Appeal File (IAF), Tab 7 at 30-34. The removal decision letter,
which was issued during the partial Government shutdown from December 22,
2018, through January 25, 2019, advised the appellant of her right to appeal her
removal to the Board “not later than 10 business days after the re-opening of the
MSPB.” Id. at 31. On February 25, 2019, the appellant appealed her removal to
the Board. IAF, Tab 1. The administrative judge advised the appellant that it
appeared her appeal was untimely filed by 14 business days and ordered her to
submit evidence and argument showing her appeal was timely filed or the
existence of circumstances that would warrant waiver of the statutory time limit.
IAF, Tab 8. The appellant did not respond. IAF, Tabs 7, 9. Without holding the
appellant’s requested hearing, the administrative judge issued an initial decision
dismissing the appeal as untimely filed. IAF, Tab 10, Initial Decision (ID). 2
The appellant has filed a petition for review of the initial decision, and the
agency has responded. Petition for Review (PFR) File, Tabs 3, 5.2
ANALYSIS
Pursuant to 38 U.S.C. § 714(a)(1), “[t]he Secretary [of the Department of
Veterans Affairs] may remove, demote, or suspend a covered individual . . . if the
Secretary determines the performance or misconduct of the covered individual
warrants such removal, demotion, or suspension.” A “covered individual” is an
individual occupying a position at the agency, with four exceptions not relevant
here. See 38 U.S.C. § 714(h)(1)(A)-(D). Such individual may appeal to the
Board any removal, demotion, or suspension of more than 14 days. 38 U.S.C.
§ 714(c)(4)(A). However, an appeal “may only be made if such appeal is made
not later than 10 business days after the date of such removal, demotion, or
suspension.” 38 U.S.C. § 714(c)(4)(B).
Here, the administrative judge found that the appellant was removed under
the authority of 38 U.S.C. § 714 effective January 22, 2019, and that any Board
appeal of that action was therefore due no later than February 1, 2019. ID at 4.
Because the appellant did not file her appeal until February 25, 2019, the
administrative judge found her appeal untimely filed. ID at 2, 4 . However,
February 1, 2019, is 10 calendar days after the effective date of the appellant’s
removal, instead of the 10 business days required by the statute. Pursuant to
38 U.S.C. § 714(c)(4)(B), the appellant’s Board appeal was due no later than
2 With her petition for review, the appellant has submitted for the first time a number of
documents pertaining to the merits of her removal. PFR File, Tab 3 at 7-55. The
appellant has not shown that these documents are new or material to the dispositive
timeliness issue, and we therefore do not consider them for the first time on review.
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980 ) (providing that, under
5 C.F.R. § 1201.115, the Board will not consider evidence submitted for the first time
with the petition for review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence); see also Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980 ) (holding that the Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision). 3
February 5, 2019—10 business days after the effective date of her removal. As
noted above, however, the agency advised the appellant that any Board appeal of
her removal, which occurred during the partial Government shutdown, was due
within 10 business days “after the re -opening of the MSPB,” as opposed to
10 business days after the date of the action as prescribed by the statute. IAF,
Tab 7 at 31. We find that this is a reasonable interpretation of the Board’s
December 21, 2018 press release notifying the public that all filing and
processing dates would be extended by the number of calendar days that the
Board was shut down. See Press Release, U.S. Merit Systems Protection Board,
Status of the U.S. Merit Systems Protection Board During a Partial Government
Shutdown (Dec. 21, 2018),
https://www.mspb.gov/publicaffairs/press_releases/Status_of_the_MSPB_During
_a_Partial_Government_Shutdown_1580906.pdf (last visited Jul. 9, 2024).
Accordingly, allowing the appellant 10 business days after the Board reopened on
January 26, 2019, her appeal was due no later than February 8, 2019. Regardless
of whether the filing deadline was February 5 or February 8, 2019, however, the
appellant’s February 25, 2019 appeal was untimely filed by at least 2 weeks.
Thus, we discern no basis to disturb the administrative judge’s determination that
the appellant’s appeal was untimely filed.
The administrative judge also found that the appellant failed to make a
nonfrivolous allegation that good cause existed to excuse her untimely filed
appeal. ID at 4. However, the filing deadline prescribed by 38 U.S.C. § 714
cannot be waived for good cause shown.3 See Ledbetter v. Department of
Veterans Affairs , 2022 MSPB 41, ¶¶ 8-9. Although we agree with the
administrative judge that the appellant is not entitled to waiver or tolling of the
filing deadline, we modify the initial decision consistent with the following to
clarify the basis for this holding.
3 Despite the administrative judge’s incorrect finding in the initial decision, we note
that she correctly set forth the potential bases by which the statutory filing deadline
could be waived in her timeliness order. IAF, Tab 8 at 2-3. 4
While the filing deadline under 38 U.S.C. § 714(c)(4)(B) may not be
waived for good cause shown, it may be subject to equitable tolling or equitable
estoppel. Ledbetter, 2022 MSPB 41, ¶¶ 8-11, 14. The doctrine of equitable
tolling is a rare remedy that is to be applied in unusual circumstances and
generally requires a showing that the appellant has been pursuing her rights
diligently and some extraordinary circumstances stood in her way , such as being
induced or tricked by her adversary’s misconduct into allowing the deadline to
pass. Id., ¶¶ 12-13. The requirements for equitable estoppel are “even more
stringent,” requiring affirmative misconduct by the Government. Id., ¶ 12. Here,
the appellant did not respond to the timeliness order below and did not otherwise
provide any explanation for her untimely filing, much less demonstrate that she
diligently pursued her appeal rights but was precluded from making a timely
filing due to inducement or trickery by the Government. IAF, Tab 1.
Accordingly, the appellant has not shown that she is entitled to equitable relief .4
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
4 For the first time on review, the appellant argues that her union representative was
responsible for the untimely filed appeal. PFR File, Tab 3. The Board generally will
not consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available despite
the party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6
(2016). Here, the appellant has not alleged that her argument is based on new and
material evidence; rather, she argues that her union representative was also at fault for
not responding to the order on timeliness. PFR File, Tab 3 at 3-4. It is well settled,
however, that an appellant is responsible for the errors and omissions of her chosen
representative. Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981 ). Even if
we were to consider the appellant’s arguments raised for the first time on review,
however, they would not establish that she is entitled to equitable tolling or equitable
estoppel because she has not alleged the existence of extraordinary circumstances that
stood in the way of her making a timely filing. PFR File, Tab 3; See Ledbetter,
2022 MSPB 41, ¶ 13.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 5
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular6
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 7
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of8
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Elam_Carolyn_L_DC-0714-19-0326-I-1__Final_Order.pdf | 2024-07-09 | CAROLYN LAVERN ELAM v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0714-19-0326-I-1, July 9, 2024 | DC-0714-19-0326-I-1 | NP |
1,026 | https://www.mspb.gov/decisions/nonprecedential/Sierra_Joanna_G_DA-3443-20-0250-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOANNA G. SIERRA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-3443-20-0250-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Rogers , San Antonio, Texas, for the appellant.
Delany Steele and Daniel Morvant , Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant argues that her petition for review was
timely filed, and she requests that the appealed matter be remanded for a hearing.
Petition for Review File, Tab 1 at 4. The timeliness of her petition for review is
apparent and undisputed. Id.; Initial Appeal File, Tab 13, Initial Decision (ID)
at 4; see 5 C.F.R. § 1201.114(e) (providing for the time for filing a petition for
review). Further, after reviewing the record, we discern no reason to disturb the
administrative judge’s finding that the appellant has failed to make a nonfrivolous
allegation2 of Board jurisdiction over the appeal. ID at 3-4. Therefore, we find
that the administrative judge properly dismissed this appeal for lack of
jurisdiction without holding a hearing. ID at 4.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Sierra_Joanna_G_DA-3443-20-0250-I-1__Final_Order.pdf | 2024-07-09 | JOANNA G. SIERRA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-3443-20-0250-I-1, July 9, 2024 | DA-3443-20-0250-I-1 | NP |
1,027 | https://www.mspb.gov/decisions/nonprecedential/Melnick_Jeffrey_A_DC-0752-19-0328-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY A. MELNICK,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-19-0328-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey A. Melnick , Virginia Beach, Virginia, pro se.
Brittany L. Bishop and Kenneth Rye , Norfolk, Virginia, for the agency.
Patricia Reddy-Parkinson , Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal claim as moot and his involuntary retirement appeal for
lack of jurisdiction. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and, except as expressly MODIFIED
to address the appellant’s new argument that his retirement was involuntary due
to agency misinformation, we AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant claims for the first time on review that his retirement was
involuntary because of agency misinformation. Petition for Review (PFR) File,
Tab 1 at 4. An employee’s retirement is presumed to be a voluntary action.
Salazar v. Department of the Army , 115 M.S.P.R. 296, ¶ 9 (2010). However, an
involuntary retirement is tantamount to a removal and thus is appealable to the
Board. Id. The presumption that a retirement is voluntary can be rebutted by
evidence showing that it was the result of agency misrepresentation, coercion, or
duress. Id. When there is a claim that an involuntary action resulted from
misinformation, an appellant must show the following: (1) that the agency made
misleading statements; and (2) that he reasonably relied on the misinformation to
his detriment. Id. An appellant is entitled to a hearing on the issue of the
Board’s jurisdiction over an appeal of an alleged involuntary retirement only if he
makes a nonfrivolous allegation casting doubt on the presumption of
voluntariness. Id., ¶ 10. A nonfrivolous allegation of Board jurisdiction is an2
allegation of fact which, if proven, could establish a prima facie case that the
Board has jurisdiction over the matter at issue. Baldwin v. Department of
Veterans Affairs , 109 M.S.P.R. 392, ¶ 11 (2008).
The appellant on review alleges that he was instructed to cancel his regular
retirement and instead apply for disability retirement because he would receive
“the better of the two.” PFR File, Tab 1 at 4. He further asserts that the
disability retirement he received was “far less than the regular retirement.” Id.
He also attaches various retirement documents, email exchanges, and voicemails
to his petition for review.2 PFR File, Tabs 1-2, 6. However, the appellant does
not support his assertions with specific allegations of fact that would establish
that his retirement resulted from misinformation. His bare assertions, without
more, fail to constitute a nonfrivolous allegation that he relied on agency
misinformation to his detriment. See Dodson v. U.S. Postal Service , 67 M.S.P.R.
84, 87 (1995) (finding an appellant failed to make a nonfrivolous allegation of
involuntary retirement when she failed to make specific assertions which, if
proven, would show that her retirement was involuntary based on
misinformation); see also Briscoe v. Department of Veterans Affairs , 55 F.3d
1571, 1573 (Fed. Cir. 1995) (“Although an appellant need not prove her entire
case before she is entitled to a hearing, the [B]oard may request sufficient
evidence to determine if, in the first instance, there is any support for what
otherwise might be bald allegations.”).
The appellant does not raise any further arguments on review that pertain to
the voluntariness of his retirement, and we discern no basis for disturbing the
initial decision. Thus, we affirm the initial decision.
2 The appellant submits this evidence for the first time on review. Because the Board’s
jurisdiction is always before the Board and may be raised by either party or sua sponte
by the Board at any time during a Board proceeding, we consider the new evidence
here. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 5 (2010).
Nonetheless, we find that the documents and audio files the appellant has submitted on
review do not show that the administrative judge erred in finding that the appellant
failed to nonfrivolously allege that his retirement was involuntary.3
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Melnick_Jeffrey_A_DC-0752-19-0328-I-1__Final_Order.pdf | 2024-07-09 | JEFFREY A. MELNICK v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-19-0328-I-1, July 9, 2024 | DC-0752-19-0328-I-1 | NP |
1,028 | https://www.mspb.gov/decisions/nonprecedential/Boyd_Kertredia_L_AT-1221-20-0096-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KERTREDIA BOYD,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-20-0096-W-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kertredia Boyd , Columbus, Georgia, pro se.
Robert S. Black, Esquire, and Anne M. Norfolk , Esquire, Fort Benning,
Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On January 2, 2018, the appellant received a tentative offer of employment
with the agency as a Medical Records Technician (Coder). Initial Appeal File
(IAF), Tab 1 at 8. The agency’s offer of employment was contingent upon her
successful completion of a background investigation that required her to submit
various forms through the Personnel Security Investigation Portal (PSIP). Id.
On February 14, 2018, the agency withdrew the appellant’s tentative job
offer citing suitability issues and the appellant’s “untimely completion of the
PSIP.” Id. at 9. The agency explained that it had made “[five] attempts in
requesting PSIP” and that the PSIP had been cancelled on three occasions due to
the appellant either failing to respond or providing incorrect information. Id.
Thereafter, on February 22, 2018, the agency issued an amended letter
withdrawing its tentative job offer, explaining that its withdrawal was based on
suitability issues, two cancellations of the PSIP due to either omissions or
incorrect information being submitted, and a third more recent cancellation “due
to not following directions and submitting the correct information . . . which was
also requested on the second cancellation of the investigation.” Id. at 49. 2
The appellant filed an appeal with the Board indicating that she was
challenging a negative suitability determination and the agency’s withdrawal of a
job offer. Id. at 3. The appellant explained that she had sent an email to an
agency employee regarding her background investigation on February 13, 2018,
and that the agency had withdrawn its offer 1 day later, on February 14, 2018. Id.
at 5. She also explained that she had submitted three tickets to the “PSIP
Customer Service Center,” but did not receive a response to her third ticket until
February 16, 2018, two days after the withdrawal of her job offer. Id. The
appellant expressed belief that a particular agency employee had “refused to
answer the inquiry made on ticket#3 because [she] blew the whistle” on a
conversation the two had “on 2/13/19.”2 Id. at 6 (punctuation as in original). The
appellant also alleged that she met with agency management on February 20,
2018; however, management was unaware that her job offer had been rescinded
on February 14, 2018. Id. at 5. With her appeal, the appellant provided a
September 3, 2019 letter from Office of Special Counsel (OSC) indicating that
the appellant had filed a complaint alleging that the agency’s rescission of her job
offer constituted whistleblower retaliation. Id. at 12-13. In the letter, OSC
informed the appellant that it found no reason for further inquiry into her
allegations and it informed her of her Board appeal rights. Id. The appellant
requested a hearing before the Board on the matter. Id. at 2.
The administrative judge issued a jurisdictional order wherein he explained
the circumstances under which the Board has jurisdiction to adjudicate individual
right of action (IRA) appeals, and he ordered the appellant to file specific
evidence and argument regarding jurisdiction within 10 days. IAF, Tab 3 at 1-8.
The appellant did not respond to this order.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
2 The administrative judge presumed, as do we, that the appellant intended to refer to
February 13, 2018. IAF, Tab 5, Initial Decision at 3 n.2.3
Tab 5, Initial Decision (ID) at 1, 5. In so doing, the administrative judge
explained that the basis of the appellant’s appeal was difficult to discern. ID at 4.
He concluded that, to the extent the appellant was alleging that she made a
protected disclosure or engaged in protected activity during her February 20,
2018 meeting with agency management, such an allegation was insufficient to
warrant a hearing because the meeting occurred after the appellant’s job offer had
already been withdrawn; thus, any alleged protected disclosure could not have
been a contributing factor in the agency’s decision to withdraw its job offer. ID
at 1 n.1, 4. He further concluded that, to the extent the appellant was alleging
that she had made a protected disclosure or engaged in protected activity in her
communications with the agency prior to the February 20, 2018, her allegations
were insufficient to warrant a hearing because the communications concerned her
criminal history and her failure to submit complete and accurate background
information and, therefore, did not amount to protected disclosures. ID at 1 n.1,
4-5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not responded. In her petition for review, the
appellant avers that a particular agency employee failed to respond to her PSIP
inquiry and withdrew her job offer in reprisal for disclosures she made to the
employee and the employee’s superiors in a February 13, 2018 email. Id. at 3.
The appellant also resubmits the documents that she provided to the
administrative judge.3 Id. at 5-87.
3 Insofar as these documents are already part of the record, the appellant has not
provided any new evidence. PFR File, Tab 1 at 5-87; see Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is already a part of
the record is not new).4
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence4 that she exhausted her remedies before OSC and make
nonfrivolous allegations5 of the following: (1) she made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39.
The appellant’s assertion that she made a nonfrivolous allegation of a disclosure
under 5 U.S.C. § 2302(b)(8) is unavailing.
The appellant seemingly alleges that her February 13, 2018 email to an
agency employee and this employee’s superiors amounted to a protected
disclosure under 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 3; IAF, Tab 1 at 47.
The appellant contends that, through this email, she disclosed that the agency
employee who was assisting her with the background investigation told her that
her job offer might be withdrawn on account of the appellant’s failure to follow
instructions. PFR File, Tab 1 at 3; IAF, Tab 1 at 47. The appellant explains that
this statement was unwarranted insofar as she had responded to all of the
employee’s requests within the same day whereas the employee had often failed
to respond to her for days at a time.6 PFR File, Tab 1 at 3. However, the
appellant acknowledged in the subject email that she was responsible for two
PSIP errors. IAF, Tab 1 at 47.
4 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). Whether allegations are nonfrivolous is determined based
on the written record. Bradley v. Department of Homeland Security , 123 M.S.P.R. 547,
¶ 6 (2016).5
A nonfrivolous allegation of a protected disclosure is an allegation of fact
that, if proven, would show that the appellant disclosed a matter that a reasonable
person in her position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 6 (2016). The test to determine whether a putative
whistleblower has a reasonable belief in the disclosure is an objective one:
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id. The disclosures must be
specific and detailed, not vague allegations of wrongdoing. Id.
We discern no basis to disturb the administrative judge’s conclusion that
the appellant failed to make a nonfrivolous allegation of a protected disclosure.
ID at 3-5; see 5 U.S.C. § 2302(b)(8); see also Salerno , 123 M.S.P.R. 230, ¶ 6.
Here, the appellant’s alleged disclosures amounted to, at most, her informing
agency employees that the employee assisting her with her background
investigation was nonresponsive, erroneously accused her of failing to follow one
or more instructions, and stated that this failure “may” result in the withdrawal of
her job offer. PFR File, Tab 1 at 3; IAF, Tab 1 at 47. To the extent the appellant
contends that she disclosed this employee’s abuse of authority under 5 U.S.C.
§ 2302(b)(8)(A)(ii)7 or any other category of wrongdoing specified in 5 U.S.C.
6 The appellant alleges that, with her email, she provided “email traffic” evincing that
the employee was nonresponsive to her emails. PFR File, Tab 1 at 3. The appellant
provided four copies of the February 13, 2018 email both before the administrative
judge and on review; however, it is unclear from her filings which, if any, prior email
conversations and/or attachments were sent with the appellant’s February 13, 2018
email. IAF, Tab 1 at 30, 47, 64, 81; PFR File, Tab 1 at 34, 51, 68, 85. Nevertheless,
given the posture of this appeal, we will assume that the appellant disclosed that the
agency employee was nonresponsive. See Corthell, 123 M.S.P.R. 417, ¶ 8.
7 The appellant references “[an] abuse of authority” and cites 5 U.S.C. § 2302(a)(2)(D)
(ii), which defines “disclosure” to include, among other things, an abuse of authority.6
§ 2302(b)(8), we find her contention unavailing. PFR File, Tab 1 at 3; IAF, Tab 1
at 47; see Boechler v. Department of the Interior , 109 M.S.P.R. 542, ¶¶ 8, 12
(2008) (finding an appellant’s allegation that his supervisor terminated a contract
with a vendor out of animosity too vague to constitute a nonfrivolous allegation
of a protected disclosure), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); see also
Rzucidlo v. Department of the Army , 101 M.S.P.R. 616, ¶¶ 15, 17 (2006) (finding
the appellant’s allegations that agency employees lied when they complained
about him to agency management did not constitute a nonfrivolous allegation of a
specific and detailed disclosure protected by 5 U.S.C. § 2302(b)(8)).
Thus, we find that the appellant’s allegations are not ones that a reasonable
person in her position would believe evidenced a violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety. See 5 U.S.C.
§ 2302(b)(8); see also Salerno , 123 M.S.P.R. 230, ¶ 6. Accordingly, we discern
no basis to disturb the administrative judge’s conclusion that the Board lacks
jurisdiction over the appellant’s IRA claim. ID at 1, 5; see Corthell,
123 M.S.P.R. 417, ¶ 8.
PFR File, Tab 1 at 3. However, she subsequently alleges that the employee “abused her
authority by withdrawing [her] job offer because [the appellant] blew the whistle on her
when [the employee] accused [the appellant] of not doing what she told [her] to do.”
Id. Thus, the appellant may be alleging not that she disclosed an abuse of authority, but
rather that her February 13, 2018 email prompted the agency to withdraw her job offer,
which constituted an abuse of authority. See id.7
We discern no other basis for Board jurisdiction over this matter. 8
The Board lacks jurisdiction over this matter as a suitability action.
The appellant checked a box on her initial appeal form indicating that she
was challenging a “[n]egative suitability determination.” IAF, Tab 1 at 3. T he
Office of Personnel Management’s regulations governing suitability actions
specify that a denial of an appointment or nonselection for a position is not a
suitability action. See Upshaw v. Consumer Product Safety Commission ,
111 M.S.P.R. 236, ¶ 8 (2009); 5 C.F.R. § 731.203(b). Here, the appellant has
suggested, and the record substantiates, that the agency denied her appointment to
a particular position, i.e., Medical Records Technician (Coder). IAF, Tab 1
at 3, 8. The agency did not take any broader action regarding the appellant’s
eligibility, such as canceling any other eligibilities on other existing competitive
registers. See Kazan v. Department of Justice , 112 M.S.P.R. 390, ¶ 7 (2009); see
also 5 C.F.R. § 731.203(a) (providing that a suitability action includes a
cancellation of eligibility). Thus, no suitability action took place here and the
Board lacks jurisdiction on this basis.
The Board lacks jurisdiction over the agency’s withdrawal of its tentative
job offer.
The appellant also indicated on her initial appeal form that she was
appealing “JOB OFFER WITHDRAWN.” IAF, Tab 1 at 3. To establish Board
jurisdiction over the cancellation of an appointment, the appellant must show the
following: (1) the appointment actually occurred; that is, that it was approved by
an authorized appointing official aware that he or she was making the
8 Although the appellant indicated on her initial appeal form that she was challenging a
“[n]egative suitability determination” and “JOB OFFER WITHDRAWN,” IAF, Tab 1
at 3, the administrative judge did not address these claims in his jurisdictional order,
IAF, Tab 3 at 2-8, or his initial decision, ID. Ordinarily, an appellant must receive
explicit information on what is required to establish an appealable jurisdictional issue.
Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985).
Here, however, the lack of jurisdictional notice did not prejudice the appellant’s
substantive rights because the record plainly shows that the Board lacks jurisdiction on
these bases. See Pennington v. Department of Veterans Affairs , 57 M.S.P.R. 8, 11
(1993); see also Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). 8
appointment; (2) the appellant took some action denoting acceptance of the
appointment; and (3) the appointment was not revoked before the appellant
actually performed in the position. Deida v. Department of the Navy ,
110 M.S.P.R. 408, ¶ 14 (2009). Here, insofar as the record evinces that the
agency’s job offer was merely tentative, i.e., the appellant never actually
performed in the position, the Board lacks jurisdiction on this basis. IAF, Tab 1
at 9, 49; see Sapla v. Department of the Navy , 118 M.S.P.R. 551, ¶ 11 (2012)
(finding that the Board did not have jurisdiction over the agency’s cancellation of
the appellant’s appointment when the agency rescinded its offer before the
appellant actually performed in the position).
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you10
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 11
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Boyd_Kertredia_L_AT-1221-20-0096-W-1__Final_Order.pdf | 2024-07-09 | KERTREDIA BOYD v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-20-0096-W-1, July 9, 2024 | AT-1221-20-0096-W-1 | NP |
1,029 | https://www.mspb.gov/decisions/nonprecedential/Pennant_Genise_A_AT-0752-19-0689-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GENISE A. PENNANT,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-19-0689-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Genise A. Pennant , Gainesville, Florida, pro se.
Holly L. Buchanan and William Vincent Cochrane , Eglin Air Force Base,
Florida, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal pursuant to 5 U.S.C. chapter 75 based on the following
charges: (1) absence without leave (AWOL); (2) failure to request leave in
accordance with established procedures; and (3) refusal to comply with proper
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
orders. On petition for review, the appellant argues that the administrative judge
made erroneous findings of fact, and she challenges the administrative judge’s
conclusion that she failed to prove the following affirmative defenses:
(1) disability discrimination on the basis of failure to provide a reasonable
accommodation; (2) disability harassment; and (3) whistleblower reprisal.
Petition for Review (PFR) File, Tab 1 at 1-13. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to (1) correct a misstatement made by the administrative judge
regarding the appellant’s status as a disabled veteran, (2) clarify the proper legal
standard for analyzing the appellant’s affirmative defense of disparate treatment
disability discrimination, and (3) supplement the administrative judge’s analysis
regarding the appellant’s claim of whistleblower reprisal, we AFFIRM the initial
decision.
We have considered the appellant’s arguments, but we discern no basis to
disturb the administrative judge’s reasoned factual findings or his legal
conclusions. See Riggsbee v. Office of Personnel Management , 111 M.S.P.R.
129, ¶ 11 (2009) (explaining that an appellant’s mere disagreement with the
administrative judge’s explained factual findings and legal conclusions therefrom2
does not provide a basis to disturb the initial decision). We have also considered
the voluminous documentary evidence that the appellant provides with her
petition for review, PFR File, Tab 1 at 15-123; however, all of these documents
predate the initial decision, and the appellant provides no explanation as to why
she failed to provide this information to the administrative judge,2 see Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (finding that the Board generally
will not consider evidence submitted for the first time with the petition for review
absent a showing that it was unavailable before the record was closed despite the
party’s due diligence). Moreover, even considering this additional
documentation, we find that it does not change the outcome of this appeal. See
Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (observing that the
Board generally will not grant a petition for review based on new evidence absent
a showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision).
We modify the initial decision to correct a misstatement.
Although not raised on review, the administrative judge concluded that the
appellant had a disability as defined by 29 C.F.R. § 1630.2(g) because “a
Standard Form 50 in the record indicate[d] that [she] was a disabled veteran.”
Initial Appeal File (IAF), Tab 19, Initial Decision (ID) at 11 (citing IAF, Tab 8
at 130). An appellant’s status as a disabled veteran is not dispositive for purposes
of the Americans with Disabilities Act Amendments Act of 2008. See 29 C.F.R.
§ 1630.2(g); see also 74 Fed. Reg. 48431, 48448 (2009) (“The fact that an
individual has a record of being a disabled veteran . . . does not guarantee that the
individual will satisfy the definition of ‘disability’ under part 1630.”). However,
because we agree with the administrative judge that, even assuming that the
appellant was a qualified individual with a disability, she nonetheless failed to
2 Some of the documents that the appellant provides on review were part of the record
before the administrative judge; thus, they do not constitute new evidence. See Meier v.
Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is
already a part of the record is not new).3
prove disability discrimination, we find his misstatement harmless. ID at 11-15;
see Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984)
(explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
We modify the initial decision to clarify the proper legal standard for analyzing
the appellant’s affirmative defense of disparate treatment disability
discrimination.
On review, the appellant appears to challenge the administrative judge’s
assessment of her affirmative defense of disparate treatment disability
discrimination. To prove an affirmative defense of discrimination on the basis of
disability under the Rehabilitation Act, an appellant must prove that
discrimination was at least a motivating factor in the agency’s action. Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 40. Here, however, the
administrative judge found that the appellant failed to show that her alleged
disability was a motivating factor in her removal, ID at 14, and because we
discern no basis to disturb this reasoned finding, the appellant’s claim of
disparate treatment disability discrimination necessarily fails,3 see Pridgen, 2022
MSPB 31, ¶ 40. Moreover, because we affirm the administrative judge’s finding
that the appellant failed to show that any prohibited consideration was a
motivating factor in the agency’s action, we need not resolve the issue of whether
the appellant proved that discrimination was a “but -for” cause of the agency’s
decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29 -33.
We modify the initial decision to supplement the administrative judge’s analysis
of the appellant’s claim of whistleblower retaliation.
Although the administrative judge addressed the appellant’s claim of
whistleblower reprisal as related to her complaint with the Office of Special
Counsel, he did not address the appellant’s reprisal claim as related to (1) her
3 Although the initial decision references direct evidence and types of circumstantial
evidence, ID at 14, we find no indication that the administrative judge disregarded any
evidence because of its direct or circumstantial nature, see Pridgen, 2022 MSPB 31,
¶ 24. 4
complaint with the agency’s Office of the Inspector General (OIG), or (2) her
complaint with the Internet Crime Complaint Center (IC3),4 wherein she alleged
that agency personnel had unlawfully accessed her email. IAF, Tab 4 at 6, 8-10;
see 5 U.S.C. § 2302(b)(8)(A)(i), (b)(9)(C). The appellant reasserts whistleblower
retaliation on the basis of these protected activities, PFR File, Tab 1 at 13;
accordingly, we supplement the administrative judge’s analysis to address these
specific claims.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), to
prevail on a prohibited personnel practice affirmative defense in a chapter 75
appeal, once the agency proves its adverse action by a preponderance of the
evidence, the appellant must demonstrate by preponderant evidence that she made
a protected disclosure or engaged in protected activity and that the disclosure or
activity was a contributing factor in the adverse action. See Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537, ¶ 19 (2013); see also Alarid v.
Department of the Army , 122 M.S.P.R. 600, ¶ 12 (2015) (recognizing that, under
the WPEA, an appellant may raise an affirmative defense of whistleblower
retaliation based on protected activity under 5 U.S.C. §2302(b)(9)(A)(i), (B), (C),
and (D)).
Here, we find that the appellant failed to show by preponderant evidence
that either complaint was a contributing factor in the agency’s decision to remove
her. See Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012)
(stating that an appellant may show contributing factor through evidence such as
evidence pertaining to the strength or weakness of the agency’s reasons for taking
the personnel action, whether the protected activity was personally directed at the
proposing or deciding officials, and whether these officials had a desire or motive
to retaliate against the appellant). To this end, the record before the
4 The IC3 is a component of the Federal Bureau of Investigation (FBI) that “provide[s]
the public with a reliable and convenient reporting mechanism to submit information to
the [FBI] concerning suspected Internet-facilitated criminal activity.” See generally
https://www.ic3.gov/Home/About (last visited July 9, 2024).5
administrative judge was devoid of any indication that the OIG and IC3
complaints factored into the agency’s decision.5 Indeed, the appellant had
previously received a 14-day suspension for AWOL, IAF, Tab 8 at 109-10, and,
prior to her removal, the agency had repeatedly warned her that AWOL and
failure to comply with leave procedures could result in disciplinary action,
including removal from the Federal service, e.g., id. at 100, 108, 111. Despite
these warnings, the appellant was AWOL from December 23, 2015, through
January 26, 2016, and February 10, 2016, through March 4, 2016. Id. at 17.
Moreover, insofar as the documentary evidence indicates that the appellant filed
her IC3 complaint after the agency’s May 5, 2016 removal action, IAF, Tab 4
at 10, Tab 8 at 4, it could not have been a contributing factor in the agency’s
decision to remove her, see Johnson v. Department of Justice , 104 M.S.P.R. 624,
¶ 26 (2007) (finding that disclosures made after the agency had taken the
personnel actions at issue could not have been contributing factors in that
personnel action). We find, therefore, that the administrative judge correctly
found that the appellant failed to prove her affirmative defenses of whistleblower
reprisal.
5 On review, the appellant provides, for the first time, an April 4, 2016 email that she
sent to numerous agency officials, including both the proposing official and the
deciding official, wherein she states that she provided information to the “IG Office.”
PFR File, Tab 1 at 119-20. However, the appellant does not explain why she did not
provide this email, which was written after the agency’s March 31, 2016 notice of
proposed removal but prior to her May 5, 2016 removal, to the administrative judge.
IAF, Tab 8 at 4, 17; see Avansino, 3 M.S.P.R. at 214. Moreover, even considering this
document, we find that it does not change the outcome of this appeal. See Russo,
3 M.S.P.R. at 349. Indeed, even assuming that this email satisfies the
knowledge/timing test, see Shibuya, 119 M.S.P.R. 537, ¶ 22, we find that, given the
severity of the appellant’s attendance issues and the agency’s repeated warnings related
thereto, the agency established by clear and convincing evidence that it would have
taken the same action in the absence of this activity, see 5 U.S.C. § 1221(e)(2); see also
Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). 6
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s9
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Pennant_Genise_A_AT-0752-19-0689-I-1__Final_Order.pdf | 2024-07-09 | GENISE A. PENNANT v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-19-0689-I-1, July 9, 2024 | AT-0752-19-0689-I-1 | NP |
1,030 | https://www.mspb.gov/decisions/nonprecedential/Siefring_Andrew_J_CH-0752-20-0509-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW J. SIEFRING,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-0752-20-0509-I-1
DATE: July 9, 2024
THIS ORDER IS NONPRECEDENTIAL1
Ross A. Nabatoff , Esquire, Washington, D.C., for the appellant.
Cedric Bullock , Esquire, Sean Lee , Esquire, and Susan E. Gibson , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The agency has filed a petition for review and the appellant has filed a
cross petition for review of the initial decision, which mitigated the appellant’s
removal to a 30-day suspension. For the reasons discussed below, we DENY the
petition for review, GRANT the cross petition for review, VACATE the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision, and REMAND for further adjudication of the appellant’s claim of
retaliation for protected equal employment opportunity (EEO) activity.
BACKGROUND
Prior to his removal, the appellant was a Deputy U.S. Marshal (DUSM),
GS-1811-12, with the U.S. Marshals Service (USMS) for the Southern District of
Ohio in Dayton, Ohio. Initial Appeal File (IAF), Tab 19 at 8. By notice dated
July 15, 2019, the agency proposed to remove the appellant on the following
charges: Lack of Candor; Conduct Unbecoming a DUSM (4 specifications); Poor
Judgment; Failure to Follow USMS Policy; and Failure to Timely Report
Misconduct. IAF, Tab 35 at 110-23. The appellant responded orally and in
writing, and on December 11, 2019, the agency issued a decision letter sustaining
the proposed removal. IAF, Tab 19 at 9-16. The deciding official did not sustain
the charge of Poor Judgment, but otherwise sustained all charges and
specifications set forth in the proposal notice. Id. at 9-13. The appellant was
removed effective December 13, 2019. Id. at 8.
The appellant filed an EEO complaint contesting his removal, and on
July 9, 2020, the agency issued a final agency decision finding no discrimination.
IAF, Tab 3 at 13-26. The appellant then filed a timely appeal with the Board,
raising affirmative defenses of denial of due process, harmful procedural error,
retaliation for EEO activity, and whistleblowing reprisal. IAF, Tabs 1, 7.
Following a hearing, the administrative judge issued an initial decision
mitigating the removal penalty to a 30-day suspension. IAF, Tab 81, Initial
Decision (ID). In doing so, the administrative judge sustained specifications 1
and 3 of Conduct Unbecoming a DUSM, as well as the charge of Failure to
Follow Policy, but found that the agency failed to establish the charge of Failure
to Timely Report Misconduct or specifications 2 and 4 of the Conduct
Unbecoming charge. ID at 2-16. The administrative judge further found that the
appellant failed to establish any of his affirmative defenses. ID at 16-28. Finally,2
the administrative judge conducted a Douglas factors2 analysis and concluded that
a 30-day suspension was the maximum reasonable penalty for the sustained
misconduct. ID at 29-31. The administrative judge further ordered the agency to
provide interim relief in the event a petition for review was filed. ID at 32-33.
The agency has filed a petition for review, arguing that the administrative
judge should have sustained the charge of Lack of Candor and found that removal
was a reasonable penalty for the appellant’s misconduct.3 Petition for Review
(PFR) File, Tab 1. The agency certified that it had complied with the interim
relief order by reinstating the appellant to his former position, effective July 20,
2021. Id. at 13. The appellant has filed a response to the agency’s petition,
followed by his own cross petition for review. PFR File, Tabs 3-4. In his cross
petition, the appellant argues that the administrative judge erred in sustaining the
charge of Failure to Follow Policy and specifications 1 and 3 of Conduct
Unbecoming a DUSM. PFR File, Tab 4 at 5-7, 8-19. The appellant further
argues that, contrary to the initial decision, he established his claim of EEO
retaliation by a preponderance of the evidence.4 Id. at 8, 20-26. The agency has
filed a response to the appellant’s cross petition, and the appellant has replied to
that response. PFR File, Tabs 9-10. The appellant has also filed a supplemental
pleading, styled as a “petition for enforcement” of the interim relief order. PFR
File, Tab 6. The agency has filed a response to that pleading, and the appellant
has replied. PFR File, Tabs 7-8.
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981 ), the Board
articulated a nonexhaustive list of factors that are relevant in assessing the appropriate
penalty for an act of misconduct.
3 The agency does not contest the administrative judge’s findings with respect to the
charge of Failure to Timely Report Misconduct or specifications 2 and 4 of Conduct
Unbecoming a DUSM. Accordingly, we do not address those matters further.
4 The appellant does not contest the administrative judge’s findings with respect to his
other affirmative defenses.3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for enforcement is denied.
The appellant’s petition for enforcement is denied because the Board’s
regulations do not allow for a petition for enforcement of an interim relief order.
Bryant v. Department of the Army , 2022 MSPB 1, ¶ 6; see 5 C.F.R. § 1201.182(a)
(providing for petitions for review of final Board orders). We have instead
considered the appellant’s pleading as a challenge to the agency’s certification of
compliance. See Bryant, 2022 MSPB 1, ¶ 6; 5 C.F.R. § 1201.116(b). However,
given our decision to deny the agency’s petition for review on the merits, we find
it unnecessary to decide the interim relief issue. See Jolivette v. Department of
the Navy, 100 M.S.P.R. 216, ¶ 5 n.1 (2005). The appellant’s arguments in this
regard are now moot because interim relief is in effect only pending the
disposition of a petition for review. See 5 U.S.C. § 7701(b)(2)(A); Garcia v.
Department of State , 106 M.S.P.R. 583, ¶ 7 (2007).
The agency failed to prove the charge of Lack of Candor.
To prove a charge of lack of candor, the agency must prove that (1) the
appellant gave incorrect or incomplete statements, and (2) did so knowingly.
Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶17 (2016). Unlike
falsification, lack of candor does not require an intent to deceive. Id., ¶ 16. A
lack of candor charge may involve a failure to disclose something that, under the
circumstances, should have been disclosed in order to make the given statement
accurate and complete. Ludlum v. Department of Justice , 278 F.3d 1280, 1284
(Fed. Cir. 2002).
Here, the agency alleges that the appellant displayed lack of candor when,
on or about October 26, 2017, he failed to accurately respond to a Colorado Parks
and Wildlife Officer regarding the appellant’s shooting of a spike elk, which took
place 4 days previously. IAF, Tab 35 at 110. It is undisputed that the appellant
had an elk hunting license that permitted him to shoot a spike elk with antlers less
than five inches long, and that the elk’s antlers exceeded that length, thus making4
the kill illegal.5 Regarding the size and type of the elk, the record reflects that the
appellant informed the officer that he had shot a spike elk, indicated that the elk’s
antler was approximately half the length of the appellant’s shoe, and later
estimated the length of the antler using his hands. Hearing Transcript (HT),
Day 1 at 11-12, 19 (officer’s testimony). As both estimates indicated a length of
greater than five inches, we conclude the appellant did not conceal that the length
of the spike elk’s antlers exceeded the legal limit. Regarding the agency’s
contention that the appellant had photographs of the animal that he should have
shared with the officer, nothing in the record indicates that any such photos were
in his possession at the time of the conversation. Accordingly, we agree with the
administrative judge that the agency failed to show that the appellant knowingly
gave the officer false information or concealed information that should have been
disclosed under the circumstances. The agency’s arguments to the contrary
amount to mere disagreement with the administrative judge’s findings and
credibility determinations, and do not warrant further review. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The agency failed to prove the charge of Conduct Unbecoming a DUSM.
To prove a charge of conduct unbecoming, the agency must show that the
charged conduct occurred, and that the conduct was improper, unsuitable, or
detracted from the appellant’s character or reputation. See Miles v. Department
of the Army, 55 M.S.P.R. 633, 637 (1992). Ordinarily, intent is not an element of
this offense. King v. Frazier, 77 F.3d 1361, 1363 (Fed. Cir. 1996). However, in
its specifications, the agency may incorporate an element of intent by claiming
5 The officer testified that he believed the appellant accidentally shot the wrong animal,
and the agency does not allege otherwise. Hearing Transcript, Day 1 at 21. Whether
the appellant timely reported the unlawful shooting is not at issue in this charge. 5
that the employee engaged in intentional misconduct or that the conduct was
improper because of the employee’s intent. Crouse v. Department of the
Treasury, 75 M.S.P.R. 57, 63 (1997). If the agency does so, it must prove the
employee’s intent as an essential element of the charge. Id. at 64 (finding that,
when the agency specified that the employee’s discussion with a coworker was
unacceptable and inappropriate because he intended to persuade her into not
cooperating with an investigation, the agency was required to prove that the
appellant intended to impede the investigation).
Specification 1
We agree with the appellant that specification 1, as crafted by the agency,
incorporates an element of intent. The underlying narrative set forth in the
proposal notice6 states that the appellant “intentionally recorded [SDUSM R.]
covertly and without his permission on one or more occasions” and “made a
conscious decision not to erase the conversation.” IAF, Tab 35 at 112.
Furthermore, in sustaining the specification, the deciding official stated that
he found the appellant’s conduct to be “intentional, repeated, and with malicious
intentions,” and that he “purposely arranged” to record the conversations “in
order to benefit [his] own personal interests.” IAF, Tab 19 at 10. Given the
structure of the proposal notice and decision letter, it is apparent that the agency
did not view the appellant’s intent as merely an aggravating factor, but rather as
the gravamen of the alleged misconduct.
The Board has held that the advice of reputable counsel given on full
disclosure of facts and followed in good faith may rebut the mental element
essential to the particular offense. See Gillis v. U.S. Postal Service , 24 M.S.P.R.
642, 645 (1984). In this case, the appellant was advised by his counsel that
recording the conversation was protected EEO activity, regardless of any agency
policy to the contrary. IAF, Tab 19 at 63. Because the specification at issue
6 The narrative concerns both specification 1 and specification 2, the latter of which was
not sustained. 6
involves an element of intent, we find that the administrative judge should not
have discounted that fact. ID at 7; IAF, Tab 38 at 92. We instead conclude that,
in light of the advice provided by his attorney—correct or not—the appellant did
not act with malicious intent in recording the conversation. Accordingly, we do
not sustain the specification.
Specification 3
Under the third specification, the agency alleged that, on approximately
March 14, 2017, the appellant displayed conduct unbecoming when he argued
with SDUSM R. about taking a prisoner to the hospital. IAF, Tab 35 at 113. As
with specification 1, we find that the alleged misconduct incorporates an element
of intent. The proposal notice states that, according to SDUSM R.’s statement,
the appellant “attempted to bait him into an argument,” and that another witness
averred that, in his opinion, the appellant was “just trying to push [SDUSM R.’s]
buttons.” Id. The narrative in the decision letter further states that the appellant
“purposefully instigated” the argument, and that his behavior was “intentional
and a way to incite a less than harmonious working environment.” IAF, Tab 19
at 11. Given the language of the specification, we conclude that the agency must
establish that the appellant’s intention was to provoke his supervisor. See
Crouse, 75 M.S.P.R. at 63. However, considering that the appellant subsequently
called 911 and accompanied the prisoner to the hospital, we find it more likely
that his insistence was instead motivated by his belief, justified or not, that the
prisoner was in pain and required additional medical attention.7 Accordingly, we
7 In sustaining this specification, the administrative judge cited “[the appellant’s]
insistence despite contrary or at least conflicting evidence that the prisoner required no
further medical attention, and his defiance of [the] direction [of] his supervisor on how
to take the prisoner back to the hospital.” ID at 11. However, whether the appellant
was correct or reasonable in believing that the prisoner required medical attention is not
relevant to the alleged misconduct at issue. It is also irrelevant whether the appellant’s
decision to call 911 was contrary to his supervisor’s instruction to either take the
prisoner to the hospital himself or have the arresting agents do so. The appellant was
not charged with insubordination or failure to follow instructions. See Fargnoli v.
Department of Commerce , 123 M.S.P.R. 333, ¶ 7 (2016) (holding that the Board is7
do not sustain the specification. As the agency failed to establish any of the
underlying specifications, we do not sustain the charge of Conduct Unbecoming a
DUSM.
The agency failed to prove the charge of Failure to Follow Policy.
In this charge, the agency alleged that the appellant failed to follow USMS
policy while transporting the prisoner from the hospital back to a custody facility
in another DUSM’s unscreened Government-owned vehicle. IAF, Tab 35
at 115-16. Specifically, the agency asserts that the appellant violated USMS
policy by sitting in the passenger seat instead of sitting in the back next to the
prisoner. Id. The supporting narrative explicitly cites and relies upon USMS
Policy Directive 9.21, In-District Prisoner Movements, section E.1.c, which sets
forth the procedures for transporting USMS prisoners in an unscreened vehicle.
Id. at 116. The first paragraph of the section provides that no more than two
prisoners may be transported in an unscreened vehicle, and paragraph (2) goes on
to state the following requirement, which the proposal notice identified as the
“pertinent part” of the policy:
Prisoner No. 1 will be seated in the right rear with prisoner No. 2
seated in the middle rear. An unarmed deputy will ride in the left rear
seat behind the driver.
IAF, Tab 35 at 116, Tab 59 at 26.
The appellant contends that the policy applies to the transport of two
prisoners and does not specify where the officer riding in the car should sit while
transporting a single prisoner. Considering the context and plain language of
paragraph (2), we agree. Moreover, we find no other provision in USMS Policy
Directive 9.21 that would have required the appellant to sit in the back while
transporting a single prisoner in an unscreened vehicle.
required to review the agency’s decision on an adverse action solely on the grounds
invoked by the agency, and may not substitute what it considers to be a more adequate
or proper basis). 8
We acknowledge the possibility that the appellant’s decision to ride in the
passenger seat was in violation of an unidentified policy not contained in USMS
Policy Directive 9.21. Such a policy might well be prudent. However, the Board
is required to review the agency’s decision on an adverse action solely on the
grounds invoked by the agency and may not substitute what it considers to be a
more adequate or proper basis. Fargnoli v. Department of Commerce ,
123 M.S.P.R. 333, ¶ 7 (2016); see id., ¶¶ 14-15 (finding that the agency failed to
prove a specification of improper storage of a firearm in an unoccupied
Government-owned vehicle when the appellant’s firearm was unauthorized, and
the specification relied explicitly on an agency policy applicable to authorized
firearms only). Accordingly, we do not sustain the charge of Failure to Follow
Policy.
In sum, we find that the agency failed to prove any of its charges.
Accordingly, the removal action must be reversed in its entirety.
The appeal is remanded for further adjudication of the appellant’s claim of EEO
retaliation.
Title 42 U.S.C. § 2000e-16, the Federal sector provision of Title VII of the
Civil Rights Act of 1964, as amended (Title VII), provides that personnel actions
affecting Federal employees “shall be made free from any discrimination based
on race, color, religion, sex or national origin.” In addition to prohibiting
discrimination based on membership in a protected class, § 2000e-16 also
prohibits agencies from retaliating against employees for opposing discrimination
prohibited under Title VII. Savage v. Department of the Army , 122 M.S.P.R. 612,
¶ 37 (2015), overruled in part on other grounds by Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 23-25; cf. Gomez-Perez v. Potter ,
553 U.S. 474, 491 (2008) (holding that the Federal sector provision of the Age
Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 633a(a), which
similarly provides that personnel actions by Federal employees “shall be made
free” from age discrimination, is sufficiently broad to prohibit retaliation against9
an employee who complained of age discrimination). Claims of retaliation for
protected Title VII activity are analyzed under the same framework used for
status-based Title VII discrimination claims.8 Pridgen, 2022 MSPB 31, ¶ 30.
An appellant may establish a violation of 42 U.S.C. § 2000e-16 by showing
that his membership in a protected class or her protected Title VII activity was a
motivating factor in the agency’s action, even if it was not the only reason.
Pridgen, 2022 MSPB 31, ¶ 21; Savage, 122 M.S.P.R. 612, ¶ 41; cf. Babb v.
Wilkie, 140 S. Ct. 1168, 1171 (2020) (holding that the parallel language of
29 U.S.C. § 633a “demands that personnel actions be untainted by any
consideration of age”) (emphasis added). However, to obtain full status quo ante
relief, including reinstatement, back pay, and damages, the appellant must further
show by preponderant evidence that the prohibited discrimination or retaliation
was a but-for cause of the action, i.e., that the agency would not have taken the
same action in the absence of the discriminatory or retaliatory motive.9 Pridgen,
2022 MSPB 31, ¶ 22; cf. Babb, 140 S. Ct. at 1171 (holding that, to obtain
reinstatement or back pay based on a violation of 29 U.S.C. § 633a, the employee
“must show that age discrimination was a but-for cause of the employment
outcome”).
Either showing can be made by a variety of methods, alone or in
combination. Pridgen, 2022 MSPB 31, ¶ 24 (citing Troupe v. May Department
Stores Co., 20 F.3d 734, 736 (7th Cir. 1994)). These include both direct
8 The appellant’s prior EEO activity appears to have primarily involved claims of race
discrimination covered under Title VII. To the extent his complaints may have also
involved allegations of age discrimination covered under the ADEA, the same analysis
applies, mutatis mutandis .
9 If an employee proves motivating factor but not but-for causation, in Equal
Employment Opportunity Commission (EEOC) proceedings, at least, other forms of
relief may be available that do not relate to the end result of the employment action,
including declaratory relief, injunctive relief, costs, and attorney fees. Wilson v. Small
Business Administration , 2024 MSPB 3, ¶ 18 n.10. For example, the EEOC may order
an agency to post notices, provide EEO training, and not discriminate or retaliate
against an employee in the future. Id.10
evidence, i.e., evidence that can be interpreted as an acknowledgement of
discriminatory intent, and various sorts of circumstantial evidence. Id. Examples
of circumstantial evidence include comparator evidence, i.e., evidence that
employees outside the protected group but similarly situated in other respects
received better treatment, or evidence that the agency’s stated reason for its
action is unworthy of belief and a mere pretext for discrimination. Id.
An appellant may also rely on bits and pieces of evidence that, considered
together, may compose a convincing mosaic of discrimination, such as suspicious
timing, ambiguous statements oral or written, behavior toward or comments
directed at other employees in the protected group, and other bits and pieces from
which an inference of discriminatory intent may be drawn. Id.
Contrary to the initial decision, we find that the record includes
preponderant evidence that the appellant’s EEO complaints were at least a
motivating factor in his removal.10 Most notably, the agency admits that, during
the recorded conversation between SDUSM R., the Acting Chief DUSM, and the
appellant, SDUSM R. referred to the appellant’s EEO or Office of Professional
Responsibility complaints as “bullshit complaints.” See IAF, Tab 61 at 45
(agency’s response to appellant’s request for admissions). It is also undisputed
that the appellant’s EEO complaints had identified SDUSM R. as the responsible
agency official. HT, Day 2 at 62-66. At the hearing, SDUSM R. walked back
the agency’s earlier admission and testified that, when he referred to “bullshit
complaints,” he meant the appellant’s general tendency to complain, and not
specifically the formal EEO complaints the appellant had filed with the agency.
HT, Day 1 at 177; see HT, Day 2 at 73-74 (testimony of Acting Chief DUSM).
Be that as it may, however, the appellant’s various workplace complaints
10 In finding that the appellant failed to establish his claim of EEO retaliation, the
administrative judge stated that “[t]he process utilized by the agency to initiate and
process disciplinary actions ensures that those who may be motivated to retaliate are not
those who investigate, propose, and decide discipline.” ID at 26. While the agency’s
disciplinary procedures may be designed to prevent unlawful retaliation, we are not
persuaded that those procedures are foolproof. 11
included his discrimination complaints. As noted above, the appellant is not
required to show that his EEO activity was the only factor in his removal. We
also find it significant that SDUSM R. has a history of retaliatory conduct and
was found by the Equal Employment Opportunity Commission Office of Federal
Operations to have retaliated against another DUSM for protected EEO activity.
IAF, Tab 61 at 47 (agency’s response to appellant’s request for admissions).
Moreover, while SDUSM R. was not himself a proposing or deciding official, he
played a significant role in the disciplinary proceedings by reporting the
appellant’s hunting citation to Internal Affairs, as well as providing the agency
sworn testimony regarding the events underlying specifications 1 through 3 of the
Conduct Unbecoming charge, in which he was personally involved. IAF, Tab 35
at 112-13, Tab 61 at 45 (response #9). It is also undisputed that the proposing
and deciding officials were aware of the appellant’s EEO activity through the
investigative file, and the fact that they were not personally the subject of his
complaints does not preclude a retaliatory motive on their part. Cf. Whitmore v.
Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012) (observing that
“[t]hose responsible for the agency’s performance overall may well be motivated
to retaliate even if they are not directly implicated by [protected disclosures under
5 U.S.C. § 2302(b)(8)] . . . as the criticism reflects on them in their capacities as
managers and employees”). In addition, considering the agency’s failure to prove
any of its charges, we find that the appellant has shown by preponderant evidence
that his EEO activity was at least a motivating factor in the agency’s decision to
remove him.
While we have found independent grounds for reversing the removal
action, namely, the agency’s failure to prove its charges, the question remains
whether the appellant may be entitled to damages or other status quo ante relief.
As to that issue, the Board has held that the burden of proof lies with the
appellant to show by preponderant evidence that unlawful retaliation was a but-
for cause of the agency’s action. Pridgen, 2022 MSPB 31, ¶ 22. However, not12
having the benefit of Pridgen, the administrative judge instead advised the
appellant of the Board’s prior holding that the agency bears the burden of
showing by preponderant evidence that it would have taken the same action in the
absence of the appellant’s EEO activity. IAF, Tab 68 at 4. It is well-established
that an administrative judge must apprise the appellant of the applicable burdens
of proving a particular defense, as well as the kind of evidence the appellant must
produce to meet his burden. See Erkins v. U.S. Postal Service , 108 M.S.P.R. 367,
¶ 8 (2008); Carlisle v. Department of Defense , 93 M.S.P.R. 280, ¶ 12 (2003); see
also Pridgen, 2022 MSPB 31, ¶ 24 (stating that “[w]hen an appellant raises
an affirmative defense of disparate treatment discrimination under Title VII,
the administrative judge should notify her of the various standards and methods
of proof, including the respective levels of relief available under each standard”).
Since the appellant was not correctly advised of his burden with respect to but-for
causation, we remand the case to the regional office for further adjudication of
the appellant’s EEO retaliation claim.
The Board has recognized that there are at least two ways for an appellant
to prove but-for causation.11 Wilson v. Small Business Administration ,
2024 MSPB 3, ¶¶ 15-19. First, the appellant may proceed under the evidentiary
framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04
(1973). Under that framework, the appellant may establish a prima facie case by
showing that he engaged in protected activity, the agency subjected him to an
adverse employment action, and the unfavorable action gives rise to an inference
of retaliation. See Wilson, 2024 MSPB 3, ¶ 16. The burden then shifts to the
agency to articulate a legitimate, nonretaliatory reason for the action. If the
agency fails to do so, or if the appellant successfully rebuts the agency’s
proffered reason as pretext, then the appellant has proven but-for causation.12 Id.,
¶ 17. Second, an appellant may prove but-for causation under the motivating
11 There may be other ways of proving but-for causation, such as by direct evidence.
See Thomas v. Department of State , EEOC Appeal No. 01932717, 1994 WL 733682
at *4 (June 10, 1994).13
factor framework, by first showing that retaliation was one reason for the
challenged employment action, even if it was not the only reason. Id., ¶ 18. The
burden will then shift to the agency to prove that it would have taken the same
action even absent the retaliatory motive. If the appellant proves motivating
factor and the agency does not prove by preponderant evidence that it would have
taken the same action in the absence of retaliation, then the appellant has
established but-for causation. Id. The appellant may choose to show but-for
causation under the McDonnell Douglas framework or under the mixed-motive
framework, or by proceeding under both theories simultaneously. Id., ¶ 19.
On remand, the administrative judge should provide the appellant
an opportunity to present further evidence and argument, including a
supplemental hearing if needed, on the issue of but-for causation. Because the
suspension action must be reversed regardless of the outcome on remand, we will
not delay in ordering the agency to reverse the action and provide appropriate
back pay and benefits. See Martin v. U.S. Postal Service , 123 M.S.P.R. 189, ¶ 14
(2016).
ORDER
We remand the case to the Central Regional Office for further adjudication,
consistent with this Order, regarding the appellant’s claim of retaliation for
protected EEO activity. Notwithstanding the remand proceedings, we ORDER
the agency to cancel the removal action and reinstate the appellant effective
December 13, 2019. See Kerr v. National Endowment for the Arts , 726 F.2d 730
(Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
12 In cases like this one, where the agency has already articulated a legitimate,
nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the
third step of the analysis, i.e., the ultimate issue of whether the appellant has shown by
preponderant evidence that the agency’s reason for its action was a pretext for
retaliation. Wilson, 2024 MSPB 3, ¶ 17.14
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).15
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
18 | Siefring_Andrew_J_CH-0752-20-0509-I-1__Remand_Order.pdf | 2024-07-09 | ANDREW J. SIEFRING v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-0752-20-0509-I-1, July 9, 2024 | CH-0752-20-0509-I-1 | NP |
1,031 | https://www.mspb.gov/decisions/nonprecedential/Harris_SajurniaDC-0752-19-0252-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAJURNIA A. HARRIS,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-19-0252-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sajurnia A. Harris , Brandywine, Maryland, pro se.
Katherine A. Goetzl , Esquire, and Susie M. King , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal from Federal service. On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
argues that the administrative judge failed to consider all of the evidence, that
agency witnesses’ testimony was not credible, that the administrative judge
committed several adjudicatory errors including improperly denying witnesses
and limiting cross-examination, and that she has new and material evidence that
would affect the outcome of her appeal. Petition for Review (PFR) File, Tab 1
at 2. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
reverse the administrative judge’s decision to sustain specification two of the
charge of absence without leave (AWOL), we AFFIRM the initial decision.
The agency removed the appellant based on three specifications of AWOL,
seven specifications of failure to follow instructions, and a single instance of lack
of candor. Initial Appeal File (IAF), Tab 7 at 24-48. Specification two of the
AWOL charge alleged that the appellant was absent from duty on October 5,
2018, and failed to timely submit medical documentation to justify the absence,
thereby making it an unauthorized absence. Id. at 25-26.
2 Despite the appellant’s claim that she has “[n]ew written evidence found to warrant a
different outcome,” she has not described what this evidence is or included any
documents in her petition for review for the Board to determine whether they constitute
new and material evidence. PFR File, Tab 1 at 2. 2
Following a hearing, the administrative judge issued an initial decision
sustaining all of the specifications and thus, all of the charges. IAF, Tab 53,
Initial Decision (ID) at 5-19. Regarding specification two of the AWOL charge,
the administrative judge considered the fact that the appellant submitted medical
documentation for the October 5, 2018 absence, but ultimately sustained the
specification based on the Office of Management and Policy (OMP) Director’s
hearing testimony that he denied the appellant’s request for leave and did not
otherwise authorize the absence because the appellant’s medical documentation
was untimely submitted. ID at 9; IAF, Tab 52, Hearing Compact Disc (HCD)
(testimony of the OMP Director).
We disagree with the administrative judge’s conclusion that the agency
proved specification two of the AWOL charge. It is undisputed that the appellant
submitted medical documentation to support her October 5, 2018 absence. IAF,
Tab 45 at 211. The document submitted to the OMP Director by the appellant is
from a registered nurse stating that the appellant was seen and treated by Johns
Hopkins Hospital Adult Emergency Services on October 5, 2018. Id. Despite the
untimeliness of the appellant’s submission of the medical documentation, which
the agency asserts was not submitted until October 23, 2018, IAF, Tab 7 at 25,
the Board has held that if an employee provides administratively acceptable
medical documentation prior to an agency’s decision to remove her on AWOL
charges, the agency must grant her sick leave, regardless of her failure to timely
comply with the agency’s sick leave procedures. See Atchley v. Department of
the Army, 46 M.S.P.R. 297, 301 (1990).
We find the appellant’s medical documentation for October 5, 2018, to be
administratively acceptable because it was issued by a medical professional on
official letterhead, specifically referenced the date of the appellant’s absence, and
stated that the appellant was treated by the emergency department. IAF, Tab 45
at 211. Accordingly, we find that the agency should have granted the appellant
sick leave for October 5, 2018, and that the denial of leave for that day was3
improper. See Atchley, 46 M.S.P.R. at 301. We modify the initial decision to
reverse the administrative judge’s decision to sustain this specification, but we
nonetheless agree with his decision to sustain the AWOL charge because the
agency proved specifications one and three by preponderant evidence. See
Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (stating
that when more than one event or factual specification supports a single charge,
the agency need not prove all of the specifications; rather, proof of one or more
of the supporting specifications is sufficient to sustain the charge).
Because we agree with the administrative that the agency proved all of its
charges, this modification of the initial decision does not affect the penalty
analysis. We agree with the administrative judge that the agency considered all
of the relevant factors and that the penalty of removal is reasonable.3 ID
at 20-22. See Mitchell v. Department of the Air Force , 36 M.S.P.R. 395, 398-99
(1988) (concluding that removal is appropriate for AWOL and failure to follow
the required procedures for requesting leave charges when the appellant received
repeated warnings regarding his conduct and of the consequences of continued
conduct and had prior discipline concerning similar charges).
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
3 When all of the agency’s charges are sustained, but some of the underlying
specifications are not sustained, the agency’s penalty determination is entitled to
deference and only should be reviewed to determine whether it is within the parameters
of reasonableness. Payne v. U.S. Postal Service , 72 M.S.P.R. 646, 650 (1996).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Harris_SajurniaDC-0752-19-0252-I-1__Final_Order.pdf | 2024-07-09 | SAJURNIA A. HARRIS v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0752-19-0252-I-1, July 9, 2024 | DC-0752-19-0252-I-1 | NP |
1,032 | https://www.mspb.gov/decisions/nonprecedential/Church_Dale_W_SF-3330-20-0182-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DALE W. CHURCH,
Appellant,
v.
DEPARTMENT OF ENERGY,
Agency.DOCKET NUMBER
SF-3330-20-0182-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dale W. Church , Vancouver, Washington, pro se.
Sally Carter , Esquire, Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant challenges the administrative judge’s
finding that he failed to demonstrate that the agency violated veterans’ preference
rights regarding his nonselection for a vacancy filled through the merit promotion
process. Petition for Review (PFR) File, Tab 1 at 1-2; Initial Appeal File (IAF),
Tab 6, Initial Decision (ID) at 5-6. The agency has not filed a response to the
petition for review. Having considered the appellant’s arguments on review,
which largely constitute mere disagreement with the administrative judge’s
findings, we find that he has presented no basis for disturbing the initial decision.
See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no
reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987). The administrative judge properly found that the
appellant was allowed to compete for the merit promotion vacancy pursuant to
5 U.S.C. § 3304(f)(1), under which veterans’ preference points do not apply, and
that the appellant received all benefits to which he was entitled under VEOA. ID2
at 5-6; see Joseph v. Federal Trade Commission , 505 F.3d 1380, 1381-82 (Fed.
Cir. 2007); Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, ¶ 11 (2010).
The appellant also repeats his allegation that the administrative judge
played a “co-conspirator role” in the agency’s discrimination and retaliation,
noting that she had “ruled against [him] multiple times in the past.” PFR File,
Tab 1 at 1; IAF, Tab 1 at 7. He argues that the administrative judge’s failure to
address the more than 50 acts of retaliation and discrimination that he set forth in
his initial appeal, which included previous equal employment opportunity
complaints and Board appeals, demonstrates her “co-conspirator involvement.”
PFR File, Tab 1 at 2. Finally, he requests that the Board grant him a new hearing
or “appropriate compensation” in order to “correct the illegal involvement” of the
administrative judge and the agency. Id. We find that the appellant’s bare
assertions and allegations of bias, for which he provides no supporting evidence
or argument, are insufficient to rebut the presumption of the administrative
judge’s honesty and integrity. See Smith v. U.S. Postal Service , 81 M.S.P.R. 443,
¶¶ 4, 6 (1999) (holding that case-related rulings do not serve as a basis for
recusal); see also Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386
(1980) (observing that, in making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of6
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Church_Dale_W_SF-3330-20-0182-I-1__Final_Order.pdf | 2024-07-09 | DALE W. CHURCH v. DEPARTMENT OF ENERGY, MSPB Docket No. SF-3330-20-0182-I-1, July 9, 2024 | SF-3330-20-0182-I-1 | NP |
1,033 | https://www.mspb.gov/decisions/nonprecedential/LaNae_Tracy_M_SF-0752-18-0713-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY M. LANAE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-18-0713-I-1
DATE: July 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracy M. LaNae , Riverside, California, pro se.
Wayne G. Carter, Jr. , Esquire, Santa Ana, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal pursuant to 5 U.S.C. chapter 75 based on one charge of
failure to follow instructions and one charge of absence without leave (AWOL).
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant alleges the following: (1) the agency
failed to prove its charge of AWOL; (2) the agency failed to consider certain
mitigating factors; (3) the administrative judge erred in finding that she failed to
prove her affirmative defense of harmful procedural error; (4) the administrative
judge erroneously disallowed certain witnesses; and (5) the administrative judge
improperly denied her discovery requests. Petition for Review (PFR) File, Tab 1
at 5-9.2
We discern no basis to disturb the administrative judge’s conclusions that
the agency proved its charge of AWOL and that it properly considered the
relevant mitigating factors. Initial Appeal File (IAF), Tab 35, Initial Decision
(ID) at 5-9, 18-21. Moreover, for the reasons set forth in the initial decision, we
agree with the administrative judge that the appellant failed to show by
2 The appellant filed her petition for review 3 days after the filing deadline. PFR File,
Tab 1. We do not reach the issue of the timeliness of the appellant’s petition for
review, however, because the appellant’s petition does not meet the Board’s criteria for
review.2
preponderant evidence that the agency committed harmful procedural error. ID
at 9-12.
As previously noted, the appellant contends on review that the
administrative judge improperly precluded her witnesses from testifying at the
hearing. PFR File, Tab 1 at 6. However, we discern no basis to disturb the
administrative judge’s reasoned findings that the proffered testimony of these
witnesses appeared cumulative in nature and that the appellant failed to explain
why she did not timely provide information about these witnesses. IAF, Tab 26
at 4; see Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011). Thus, the
appellant has failed to show that the administrative judge abused his discretion in
excluding her proffered witnesses. See Thomas, 116 M.S.P.R. 453, ¶ 4.
The appellant’s assertion on review that the administrative judge
improperly denied her discovery requests is also unavailing. PFR File, Tab 1 at
6. We agree with the administrative judge that, to the extent the appellant’s
prehearing filing regarding discovery constituted a motion to compel, it was
procedurally deficient. IAF, Tab 21 at 1-2 (citing 5 C.F.R. § 1201.73(c)).
Therefore, the administrative judge did not abuse his discretion in denying the
appellant’s discovery requests. See Cassel v. Department of Agriculture ,
72 M.S.P.R. 542, 546 (1996).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | LaNae_Tracy_M_SF-0752-18-0713-I-1__Final_Order.pdf | 2024-07-09 | TRACY M. LANAE v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-18-0713-I-1, July 9, 2024 | SF-0752-18-0713-I-1 | NP |
1,034 | https://www.mspb.gov/decisions/nonprecedential/Beck_RandelSF-0752-19-0647-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDEL BECK,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-19-0647-I-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeremy R. Stephens , Esquire, and Nini Stewart , Esquire, Atlanta, Georgia,
for the appellant.
Christine Yen , Stockton, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
analyze the appellant’s retaliation claim under the standards applicable to the Age
Discrimination in Employment Act of 1967 (ADEA), we AFFIRM the initial
decision.
The appellant alleges that he was removed in retaliation for filing an
informal age discrimination complaint on January 14, 2019. In the initial
decision, the administrative judge considered the appellant’s affirmative defense
as a retaliation claim under 42 U.S.C. § 2000e-16. Initial Appeal File (IAF),
Tab 22, Initial Decision (ID) at 13-15. Applying the framework set forth in
Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 51 (2015), overruled in
part by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25,
the administrative judge found that the appellant had failed to meet his initial
burden of showing that his equal employment opportunity (EEO) activity was a
motivating factor in his removal. ID at 13-15.
We find, however, that the administrative judge should have instead
considered the appellant’s affirmative defense as a retaliation claim under the
ADEA. The Federal sector provision of the ADEA provides that personnel
actions “shall be made free from any discrimination based on age.” 29 U.S.C.
§ 633a(a). The Supreme Court has held that this provision is sufficiently broad to
prohibit retaliation against an employee who, like the appellant, complains of age2
discrimination. Gomez-Perez v. Potter , 553 U.S. 474, 491 (2008). Thus, the
appellant’s retaliation claim is cognizable under the ADEA—and not 42 U.S.C.
§ 2000e-16, which makes no reference to age.
The Court has clarified that the language of 29 U.S.C. § 633a(a) “demands
that personnel actions be untainted by any consideration of age.” Babb v. Wilkie,
140 S. Ct. 1168, 1171 (2020) (emphasis added). Hence, to establish a violation of
that section, it is sufficient to show that age was a motivating factor in the
personnel action, even if it was not the “but-for” cause of the personnel action.
See id. at 1177-78; see also Ford v. Mabus , 629 F.3d 198, 205-06 (D.C. Cir.
2010) (“[A]ny amount of discrimination tainting a personnel action . . . means
that the action was not ‘free from any discrimination based on age.’ ‘Any,’ after
all, means ‘any.’”); Wingate v. U.S. Postal Service , 118 M.S.P.R. 566, ¶ 7 (2012)
(holding that a Federal employee may prove age discrimination by showing that
age was “a factor” in the personnel action, even if it was not the “but-for” cause);
see also Pridgen , 2022 MSPB 31, ¶¶ 20-21.
Applying the correct standard, we find that the appellant has not shown that
his age discrimination complaint was a motivating factor in the agency’s decision
to remove him. Evidence of motivating factor may take different forms,
including both direct evidence of discriminatory intent and various sorts of
circumstantial evidence, alone or in combination. Pridgen, 2022 MSPB 31, ¶ 24.
However, the Board has further clarified that, in assessing the evidence, it does
not separate “direct” from “indirect” evidence and proceed as if such evidence
were subject to different legal standards. Id. Rather, the dispositive inquiry is
whether the appellant has shown by the preponderance of the evidence that the
prohibited consideration was a motivating factor in the contested personnel
action. Id. In making that determination, the Board considers the evidence as a
whole. Id.
Here, the appellant argues that he met his burden of proof based solely on
the fact that the notice of proposed removal and subsequent removal decision3
took place within a few months after his January 14, 2009 EEO contact. PFR
File, Tab 1 at 28-29. It is true that “suspicious timing,” in combination with other
“bits and pieces of evidence”—such as “ambiguous statements” or “behavior
toward or comments directed to other members of the protected group”—may
help to compose a “convincing mosaic of retaliation,” which is one of several
means of establishing that protected EEO activity was a motivating factor in a
personnel action. Pridgen, 2022 MSPB 31, ¶ 24. However, considering the
evidence as a whole, we find that the timing of the events is insufficient to meet
the appellant’s burden of proof, particularly given the absence of any other
evidence of retaliation and the deciding official’s unrebutted declaration, under
penalty of perjury, that the appellant’s EEO complaint played no role in his
decision to remove him. IAF, Tab 17 at 16 (declaration of the deciding official);
see also IAF, Tab 6 at 31 (decision letter). In addition, while this fact alone is
not dispositive, the record indicates that the proposing official had already
initiated some form of disciplinary proceeding against the appellant on
January 10, 2019, prior to his age discrimination complaint. IAF, Tab 6 at 98
(Employee/Supervisor Discussion form), Tab 17 at 21 (declaration of the
proposing official). In sum, although the administrative judge applied the wrong
statute in addressing the appellant’s retaliation claim, we agree with her ultimate
conclusion that the appellant failed to establish his affirmative defense.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Beck_RandelSF-0752-19-0647-I-1__Final_Order.pdf | 2024-07-08 | RANDEL BECK v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-19-0647-I-1, July 8, 2024 | SF-0752-19-0647-I-1 | NP |
1,035 | https://www.mspb.gov/decisions/nonprecedential/Surowiecki_JohnSF-0752-18-0678-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN SUROWIECKI,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-18-0678-I-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.
Cary Elizabeth Zuk , San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal for misconduct. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED with respect to the administrative judge’s analysis of the first charge
and to address the deciding official’s failure to afford proper weight to the
applicable mitigating penalty factors, we AFFIRM the initial decision.
BACKGROUND
¶2Effective July 10, 2018, the agency removed the appellant from his GS-13
Supervisory Detention and Deportation Officer position based on three charges:
(1) conduct unbecoming (five specifications); (2) violation of agency policy on
Government-issued mobile device (one specification); and (3) lack of candor (two
specifications). Initial Appeal File (IAF), Tab 5 at 14-25, 106-13. Charge 1
pertained to the appellant’s harassing actions toward his ex-girlfriend in the wake
of their breakup, Charge 2 pertained to the appellant using his Government-issued
cellphone to send a pornographic image to his ex-girlfriend, and Charge 3
pertained to the appellant’s responses to a Seattle Police Department inquiry
regarding his actions toward his ex-girlfriend. Id. at 107-09.
¶3The appellant filed a Board appeal challenging the removal and raising
affirmative defenses of harmful error and denial of due process. IAF, Tab 1.
After a hearing, the administrative judge issued an initial decision affirming the
removal. IAF, Tab 41, Initial Decision (ID). He sustained each of the three2
charges at issue, although only three specifications of Charge 1. ID at 3-17. He
found the affirmative defenses to be unproven and the penalty to be reasonable.
ID at 17-26.
¶4The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 10. The agency has filed a response in opposition to the petition for
review, and the appellant has filed a reply to the agency’s response.2 PFR File,
Tabs 12-13.
ANALYSIS
The administrative judge did not abuse his discretion in ruling on discovery
matters.
¶5The appellant asserts on review that the administrative judge erred by
denying his motion for a subpoena duces tecum. PFR File, Tab 10 at 9-10; IAF,
Tab 2 at 2-3, Tab 17 at 1, Tab 24. An administrative judge has broad authority in
discovery matters, and absent an abuse of discretion, the Board will not substitute
its judgment for that of an administrative judge. Bayne v. Department of Energy ,
34 M.S.P.R. 439, 443 (1987), aff’d, 848 F.2d 1244 (Fed. Cir. 1988); see 5 C.F.R.
§ 1201.41(b)(4). We find that the administrative judge did not abuse his
discretion in denying the appellant’s motion for a subpoena duces tecum because,
as the administrative judge correctly noted, IAF, Tab 30 at 2-4, the motion did not
include the information required under 5 C.F.R. § 1201.73(c)(1). See Morrison v.
Department of the Navy , 122 M.S.P.R. 205, ¶ 12 (2015) (finding that the
administrative judge did not abuse her discretion in denying a motion to compel
that failed to comply with the procedural requirements of 5 C.F.R. § 1201.73).
The administrative judge correctly sustained Charge 1.
¶6The agency brought five specifications under Charge 1. PFR File, Tab 5
at 107-08. The decision letter, however, only expressly sustained Specification 1.
IAF, Tab 5 at 16. The appellant argued below that Specification 1 is the sole
2 The agency has moved for leave to file an additional pleading regarding issues raised
in the appellant’s reply. PFR File, Tab 14. The agency’s motion is denied.3
specification for the Board to adjudicate. IAF, Tab 39 at 4-7. The administrative
judge considered the appellant’s argument, but found that the language of the
decision letter as a whole made it clear that the deciding official sustained all five
specifications, sustaining specifications 2, 4, and 5, all of which pertained to texts
and emails that the appellant sent to his ex-girlfriend after they broke up. ID
at 5-11.
¶7On review, the appellant renews his argument that the deciding official only
sustained specification 1 of Charge 1, and he disputes the administrative judge’s
analysis of the issue. PFR File, Tab 10 at 11-13. We find, for the reasons
explained in the initial decision, that the deciding official sustained all five
specifications of Charge 1. ID at 4-5; IAF, Tab 5 at 16. In discussing that
charge, the deciding official specifically stated that the appellant “used a
government iPhone to send a pornographic image to [his] ex-girlfriend” and
contacted her “multiple times after she asked [him] to stop contacting her.” IAF,
Tab 5 at 16. This discussion is clearly referring to specifications 2 through 5 and
leaves no doubt that the deciding official found that the appellant engaged in the
misconduct alleged therein. IAF, Tab 5 at 16, 107-08. The appellant has not
advanced any other plausible interpretation of this language.
¶8The administrative judge found that “the appellant himself understood that
specifications 2-5 had been sustained, in addition to specification 1, as he
testified about each of them at hearing.” ID at 4-5. The appellant persuasively
argues that the administrative judge improperly gave him the choice between
staying silent on these specifications and risking a tacit admission or defending
against those specifications and waiving his argument that the deciding official
had not sustained them. PFR File, Tab 10 at 13. Parties to a Board appeal are
permitted to plead in the alternative, Tompkins v. Department of the Navy ,
80 M.S.P.R. 529, ¶ 9 (1999), and we do not construe the appellant’s arguments on
the merits of these specifications to constitute any sort of waiver. We do find,
however, that the appellant’s arguments in this regard show that he was not4
unfairly surprised that these specifications were at issue in the proceedings
below.
¶9The appellant does not contest the administrative judge’s factual findings
regarding specifications 2, 4, and 5, and for the reasons explained in the initial
decision, we agree with the administrative judge that the agency proved these
specifications. ID at 7-11. Thus, the administrative judge properly sustained
Charge 1. See Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed.
Cir. 1990) (finding that, when more than one event or factual specification
supports a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge).
The administrative judge correctly sustained Charges 2 and 3.
¶10Under Charge 2, the agency alleged that the appellant violated U.S.
Immigration and Customs Enforcement policy by using his Government-issued
cellphone to transmit a pornographic image to his ex-girlfriend. IAF, Tab 5
at 109. The deciding official sustained this charge and so did the administrative
judge. IAF, Tab 5 at 16; ID at 11-12. The appellant does not dispute this charge
on review, and for the reasons explained in the initial decision, we find that the
agency proved Charge 2. ID at 11-12.
¶11Charge 3 is a lack of candor charge, IAF, Tab 5 at 109, which requires proof
that: (1) the employee gave incorrect or incomplete information; and (2) he did
so knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 17
(2016). The agency brought two specifications under this charge. Under
specification 1, the agency alleged that a detective from the Seattle Police
Department asked the appellant whether he used his work phone to send the
pornographic image to his ex-girlfriend, and the appellant deceptively responded
“Um . . . No, it was sent from my laptop to her.” IAF, Tab 5 at 109. Under
specification 2, the agency alleged that the appellant told this same detective that
his ex-girlfriend asked him to send her the image, but in reality, she only asked5
him to send her a link to the image after he had already sent her the image itself
and suggested that it was of her. Id.
¶12On review, the appellant argues that the information that he provided the
detective was true and that he did not knowingly attempt to deceive the detective.
PFR File, Tab 10 at 21-24. We have carefully reviewed the record and find the
appellant’s argument unpersuasive because it conflates the transmission of the
image with the transmission of a link to the image. ID at 13-15; IAF, Tab 6
at 66-67; PFR File, Tab 10 at 22-23. The detective’s initial question was whether
the appellant used his Government -issued cellphone to transmit the image, which
the appellant flatly and inaccurately denied.3 IAF, Tab 6 at 36-37, 67. It was not
until the detective asked the appellant about the link that the appellant stated he
could not remember how he sent it. Id. at 67. Therefore, the administrative judge
correctly found that the appellant provided inaccurate information with respect to
his transmission of the image itself. ID at 14-15; IAF, Tab 5 at 109.
¶13While they were still talking about the image, the appellant volunteered to
the detective that his ex-girlfriend asked him to send it. IAF, Tab 6 at 67. This
again was inaccurate. The record clearly shows that the appellant sent this image
unsolicited and that his ex-girlfriend was surprised at receiving it. Id. at 36-38.
It was not until the appellant represented to his ex -girlfriend that the image was
of her that she requested a link to it. Id. at 38-39. Therefore, the administrative
judge correctly found that the appellant inaccurately represented to the detective
that his ex-girlfriend requested the image. ID at 16-17; IAF, Tab 5 at 109.
¶14Having established that the appellant gave the detective incorrect
information as charged, the next question is whether he conveyed this information
knowing that it was incorrect or incomplete. Parkinson v. Department of Justice ,
815 F.3d 757, 765-66 (Fed. Cir. 2016, aff’d in part and rev’d in part , 874 F.3d
3 The appellant asserts that “ How he sent the picture is neither material nor germane in
the context of a lack of candor analysis.” PFR File, Tab 10 at 23. However, under
Charge 3, specification 1 as worded, the appellant’s method of transmitting the image is
the very crux of the matter. IAF, Tab 5 at 109.6
712 (Fed. Cir. 2017) (en banc). On review, the appellant argues that receiving
this call from the detective rattled him and that he sent a large number of text
messages during the time period at issue, both of which made it difficult for him
to recall certain details. PFR File, Tab 10 at 21, 23. He points out that he
suggested that the detective examine his ex -girlfriend’s cellphone, where a
definitive answer to the detective’s questions could be found, and he argues that
such behavior is inconsistent with a knowing concealment of the truth. PFR File,
Tab 10 at 22-23; IAF, Tab 6 at 67. The administrative judge thoroughly
considered these arguments and found them unpersuasive based at least in part on
his assessment of the appellant’s credibility. ID at 15-16. The appellant has not
proffered sufficiently sound reasons to set aside the administrative judge’s
findings. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir.
2002) (finding that the Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing).
¶15The appellant further argues that the detective himself understood that the
appellant could not recall how he had transmitted the image. PFR File, Tab 10
at 22; HT at 99 (testimony of the detective). The detective’s opinion as to
whether the appellant was truthful during his interview is not particularly relevant
because the Board reviews the evidence de novo. In any event, if the appellant
could not recall how he had transmitted the image, a truthful answer would have
been “I cannot recall,” not a false statement that he transmitted the image from
his laptop.
¶16Finally, the appellant argues that an honest but mistaken representation does
not constitute a lack of candor, citing Ludlum v. Department of Justice , 278 F.3d
1280, 1284 (Fed. Cir. 2002). PFR File, Tab 10 at 23 -24. However, the
administrative judge expressly found that the appellant’s misrepresentations
during the police interview were not honest mistakes. ID at 15-17. For these
reasons, we affirm the administrative judge’s findings with respect to Charge 3.7
The agency established a nexus between the appellant’s misconduct and the
efficiency of the service.
¶17The appellant also argues on review that the administrative judge erred by
finding a nexus between his misconduct and the efficiency of the service. PFR
File, Tab 10 at 13-16. However, the administrative judge correctly found that the
appellant’s use of his Government-issued cellphone to transmit the text messages
at issue in Charge 2 and specifications 2 and 4 of Charge 1 establishes the
requisite nexus between the described misconduct and the efficiency of the
service. ID at 20; see Lowell v. Department of the Air Force , 11 M.S.P.R. 453,
454-55 (1982) (finding nexus where the appellant’s off-duty misconduct occurred
on agency property). As to the appellant’s lack of candor, the agency has
demonstrated that it requires its law enforcement officers to be honest and
trustworthy and that it can no longer trust the appellant because he has
demonstrated an absence of those qualities and a lack of judgment. Hearing
Transcript (HT) at 173 (testimony of the deciding official); see Canada v.
Department of Homeland Security , 113 M.S.P.R. 509, ¶¶ 10-11 (2010) (finding
nexus in light of the appellants’ supervisory law enforcement positions and the
lack of judgment exhibited by their off-duty conduct); Austin v. Department of
Justice, 11 M.S.P.R. 255, 259 (1982) (finding nexus between a law enforcement
officer’s off-duty shoplifting and the efficiency of the service because the
misconduct had a significant effect on his reputation for honesty and integrity).
The penalty of removal is within the bounds of reasonableness.
¶18When, as here, all of the agency’s charges are sustained but some of the
specifications are not, the agency’s penalty determination is entitled to deference
and should be reviewed only to determine whether it is within the parameters of
reasonableness. Payne v. U.S. Postal Service , 72 M.S.P.R. 646, 650 (1996). The
Board will disturb the agency’s chosen penalty only if it finds that the agency
failed to weigh relevant factors or that the agency’s judgment clearly exceeded8
the limits of reasonableness. Toth v. U.S. Postal Service , 76 M.S.P.R. 36, 39
(1997); Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981).
¶19In this case, the deciding official found the lack of candor charge to be the
most serious of the sustained charges, especially considering the appellant’s
status as a law enforcement officer in an agency that handles sensitive
information. HT at 173 (testimony of the deciding official). In particular, she
found that this matter would be subject to disclosure under Giglio v. United
States, 405 U.S. 150 (1972), should the appellant ever be called to testify in his
official capacity. Id. (testimony of the deciding official). In light of these and
other factors, the deciding official found that removal was the most appropriate
penalty. IAF, Tab 5 at 17, 22-25. The administrative judge upheld the penalty,
finding that the deciding official considered the relevant penalty factors and
exercised her discretion within the tolerable limits of reasonableness. ID
at 23-26. The appellant alleges on review that the penalty of removal is
excessive. PFR Fie, Tab 10 at 16-19.
¶20We agree with the appellant that the deciding official failed to give proper
consideration to his nearly 20 years of discipline-free service. PFR File, Tab 10
at 17; IAF, Tab 5 at 23. In her penalty factors review sheet, the deciding official
acknowledged that the appellant had no disciplinary record, but she did not
indicate how this factored into her decision. IAF, Tab 5 at 23. At the hearing,
she testified that the appellant’s lack of prior discipline was a “neutral” factor.
HT at 182 (testimony of the deciding official).
¶21The Board has repeatedly held that long service without prior discipline is a
significant mitigating factor. See, e.g., Von Muller v. Department of Energy ,
101 M.S.P.R. 91, ¶¶ 2, 23 (finding that the appellant’s lack of prior discipline
over 21 years of service was a significant mitigating factor) , aff’d,
204 F. App’x 17 (Fed. Cir. 2006) ; Lloyd v. Department of the Army , 99 M.S.P.R.
342, ¶ 14 (2005) (finding that 19 years of discipline-free service was a significant
mitigating factor), aff’d per curiam , 180 F. App’x 911 (Fed. Cir. 2006); Gibb v.9
Department of the Treasury , 88 M.S.P.R. 135, ¶ 33 (2001) (considering 20 years
of discipline-free service in mitigating the removal penalty). In Chin v.
Department of Defense , 2022 MSPB 34, ¶¶ 26-27, the Board found that the
agency’s penalty determination was not entitled to deference because the deciding
official failed to consider the appellant’s 30 years of satisfactory service,
characterizing these factors as “neutral.” As we did in Chin, we find that the
deciding official here did not seriously consider the most significant mitigating
factors in this case and that her penalty analysis was therefore not sufficiently
substantive. Chin, 2022 MSPB 34, ¶ 27; see Stulmacher v. U.S. Postal Service ,
89 M.S.P.R. 272, ¶ 24 (2001) (finding that it was appropriate not to defer to the
deciding official’s penalty determination because his treatment of the mitigating
factors was not sufficiently substantive); Omites v. U.S. Postal Service ,
87 M.S.P.R. 223, ¶ 11 (2000) (finding that the administrative judge correctly did
not defer to the agency’s penalty determination because the agency failed to
seriously consider the relevant Douglas factors). Accordingly, we decline to
defer to the agency’s penalty determination and will instead independently assess
the penalty in light of the relevant Douglas factors. See Brown v. Department of
the Treasury, 91 M.S.P.R. 60, ¶ 17 (2002).
¶22We find the lack of candor charge to be serious, particularly in light of the
appellant’s position as a supervisory law enforcement officer. See Jackson v.
Department of the Army , 99 M.S.P.R. 604, ¶¶ 1, 6 (2005) (finding supervisory
police officers’ lack of candor to be a serious offense); McManus v. Department
of Justice, 81 M.S.P.R. 672, 676 (1999) (finding that supervisory law
enforcement officers are properly held to a higher standard of conduct); Wayne v.
Department of the Navy , 55 M.S.P.R. 322, 330 (1992) (finding that the
seriousness of a falsification offense is increased when the appellant is a law
enforcement officer). We also find that the charges concerning the appellant’s
off-duty harassing behavior and the misuse of his Government-issued cellphone
are significant because they call into question his judgement and his ability to10
follow the rules. See Martin v. Department of Transportation , 103 M.S.P.R. 153,
¶ 13 (2006) (finding that misuse of a Government computer was serious
misconduct for a supervisor who was required to enforce against his subordinates
the very policies he had violated) , aff’d, 224 F. App’x 974 (Fed. Cir. 2007) ;
Lindsay v. Department of Justice , 9 M.S.P.R. 55, 58 (1981) (finding that the
appellant’s position required a high degree of judgment and that her off-duty
misconduct indicated a failure in the exercise of that judgment). We also find
that the appellant’s likely Giglio impairment weighs in favor of a sterner penalty.
HT at 173 (testimony of the deciding official).
¶23In addition, we find that the appellant’s 20 years of service at a high level
of performance and with no disciplinary record are significant mitigating factors.
IAF, Tab 32 at 5-147. We have therefore considered whether a lesser penalty
might offer sufficient correction while allowing him to continue providing useful
and efficient service to the agency. See Douglas, 5 M.S.P.R. at 306 (identifying
the availability and effectiveness of lesser alternative sanctions as a relevant
penalty factor). Nevertheless, we find that the appellant’s lack of remorse for his
misconduct casts serious doubt on his rehabilitative potential, and for that reason,
we strike the ultimate balance in favor of removal. See Wiley v. U.S. Postal
Service, 102 M.S.P.R. 535, ¶ 18 (2006) (finding that the appellant’s failure to
take responsibility for his misconduct and his lack of remorse demonstrated a lack
of rehabilitative potential), aff’d, 218 F. App’x 1001 (Fed. Cir. 2007). Although
the appellant apologized for his harassing behavior at the hearing, he rationalized
it in the same breath as an attempt to recover some of his property, which was
only partly true.4 HT at 222-23 (testimony of the appellant); see Neuman v. U.S.
Postal Service, 108 M.S.P.R. 200, ¶ 26 (2008) (“[The deciding official] did not
err in considering that the appellant’s rationalizations and lack of remorse
indicated little rehabilitation potential and were aggravating factors.”).
4 The administrative judge did not sustain the two specifications relating to the
appellant’s attempts to recover his property. ID at 5-7, 8-9.11
Furthermore, the record indicates that the first time that the appellant expressed
remorse for how his conduct adversely affected others was at the Board hearing,
which further diminishes its value.5 See Saiz v. Department of the Navy ,
122 M.S.P.R. 521, ¶ 13 (2015). Notably, the appellant has not expressed any
remorse regarding his lack of candor. We acknowledge that the appellant has
been making some attempts at self-improvement, HT at 223-24 (testimony of the
appellant), but we find that this evidence is insufficient to tip the balance in favor
of a lesser penalty.
¶24We have considered the appellant’s remaining arguments on review and find
that none of them warrant disturbing the initial decision, Accordingly, the
appellant’s removal is affirmed.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
5 In reply to the notice of proposed removal, the appellant stated that he “realize[d]
some of [his] behavior in these situations need[ed] improvement,” and he expressed
regret at how his behavior had negative repercussions for him and his career. IAF,
Tab 5 at34.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.12
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 13
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 14
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Surowiecki_JohnSF-0752-18-0678-I-1__Final_Order.pdf | 2024-07-08 | JOHN SUROWIECKI v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-18-0678-I-1, July 8, 2024 | SF-0752-18-0678-I-1 | NP |
1,036 | https://www.mspb.gov/decisions/nonprecedential/Erickson_JonathanSF-0752-18-0227-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JONATHAN ERICKSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-18-0227-I-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephanie Bernstein , Esquire, and Tyler Sroufe , Esquire, Dallas, Texas, for
the appellant.
Ian D. Clunies-Ross , Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for medical inability to perform the essential duties of his
position. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the appellant’s discrimination
claims and whistleblower reprisal affirmative defense, we AFFIRM the initial
decision.
BACKGROUND
On September 25, 2014, the appellant, a Power Plant Mechanic (PPM) for
the agency’s Army Corps of Engineers in Bridgeport, Washington, incurred an
on-the-job injury to both of his feet when several steel plates fell on him due to
the failure of a storage rack. Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 82.
Following his injury, the appellant began a long absence while he received wage
replacement benefits from the OWCP. IAF, Tab 6 at 61, 78, 80. In January 2017,
he reached maximum medical improvement (MMI) and the agency therefore
assumed that his medical restrictions were permanent. Id. at 61. The agency2
subsequently searched for positions, but it found there were no positions available
in the machine shop at the appellant’s facility, the Chief Joseph Dam, within his
medical restrictions. Id. at 66. An agency Human Resources Specialist then
searched for vacant, funded positions throughout the district for which the
appellant was qualified and that were within his medical restrictions, including
those that were expected to open within the next 30 days, but she was also not
successful. Id. at 52-59; Hearing Compact Disc (HCD) (testimony of the agency
Human Resources Specialist).
The agency issued a June 28, 2017 notice of proposed removal charging the
appellant with medical inability to perform the essential duties of his position.
Id. at 49-51. He provided written responses. Id. at 26-27, 33-44. The deciding
official sustained the charge, finding that the appellant was unable to perform the
essential duties of his position. Id. at 21. Because the appellant’s medical
documentation did not indicate a foreseeable end to his medical condition, or that
he would be able to return to work in his current position, the deciding official
found that the appellant’s removal promoted the efficiency of the service and
issued a decision removing the appellant effective January 8, 2018. Id. at 21-22.
The appellant appealed his removal. IAF, Tab 1. After holding a hearing,
the administrative judge sustained the charge and found that the appellant failed
to establish his affirmative defenses of disability discrimination, retaliation for
EEO activity, and whistleblower retaliation. IAF, Tab 24, Initial Decision (ID)
at 10-25. He found that the agency established a nexus between the appellant’s
inability to perform his duties and the efficiency of the service, and that the
penalty did not exceed the tolerable bounds of reasonableness. ID at 25-26.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 4. He argues that his removal exceeds the tolerable limits of
reasonableness. Id. at 7-8. He challenges the administrative judge’s findings that
the appellant did not prove his affirmative defenses of status-based disability
discrimination and discrimination based on a failure to accommodate. Id. at 8-10,3
12-15. The agency has responded to the appellant’s petition for review. PFR
File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency proved the charge.
When, as here, the appellant does not occupy a position with medical
standards or physical requirements subject to medical evaluation programs, in
order to establish a charge of medical inability to perform, the agency must prove
a nexus between the employee’s medical condition and observed deficiencies in
his performance or conduct, or a high probability, given the nature of the
work involved, that his condition may result in injury to himself or others.
Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶¶ 4-5 (2014);
Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 25 (2014). In other words,
the agency must establish that the appellant’s medical condition prevents him
from being able to safely and efficiently perform the core duties of his position.
Clemens, 120 M.S.P.R. 616, ¶ 5. In determining whether the agency has met its
burden, the Board will consider whether a reasonable accommodation exists that
would enable the appellant to safely and efficiently perform those core duties. Id.
However, for the limited purposes of proving the charge, the agency is not
required to show that it was unable to reasonably accommodate the appellant by
assigning her to a vacant position for which she was qualified; whether it could
do so goes to the affirmative defense of disability discrimination or the
reasonableness of the penalty. Id.
The appellant explicitly declines to contest the administrative judge’s
finding that he cannot perform the essential duties of his PPM position. PFR File,
Tab 4 at 14; ID at 9. Based on the appellant’s medical restrictions, and the
testimony before him, the administrative judge determined that the agency met its
burden to prove there was a high probability, given the nature of the work
involved, that the appellant’s condition might result in injury to himself or others.4
ID at 10. Thus, he sustained the charge. Id. We discern no basis to disturb his
finding.
The appellant failed to establish his affirmative defenses.
Disability discrimination
The appellant asserted disability discrimination, both status-based and
based on the agency’s failure to accommodate his disabilities. IAF, Tab 18 at 5,
Tab 20 at 3. The administrative judge found, and the parties do not dispute, that
the appellant is an individual with a disability because he was substantially
limited in one or more major life activities.2 ID at 15; 42 U.S.C. § 12102(1)(A),
(2)(A); 29 C.F.R. § 1630.2(g)(1)(i). The Board adjudicates claims of disability
discrimination raised in connection with an otherwise appealable action under the
substantive standards of section 501 of the Rehabilitation Act. Pridgen v. Office
of Management & Budget , 2022 MSPB 31, ¶ 35 . The Rehabilitation Act has
incorporated the standards of the Americans with Disabilities Act (ADA).
Therefore, we apply those standards here to determine if there has been
disability discrimination. Id. The ADA provides that it is illegal for an employer
to “discriminate against a qualified individual on the basis of disability.”
42 U.S.C. § 12112(a). An employer is also required to provide reasonable
accommodations to an otherwise qualified individual with a disability. 42 U.S.C.
§ 12112(b)(5).
Thus, both a claim of disability discrimination based on an individual’s
status as disabled and a claim based on an agency’s failure to
reasonably accommodate that disability require that the individual be “qualified.”
Haas v. Department of Homeland Security , 2022 MSPB 36 , ¶ 28. A qualified
2 Although the administrative judge did not specify which major life activities the
appellant is substantially limited in performing, ID at 15, the last OWCP CA-17 Duty
Status Report that the appellant submitted to the agency reflected that he was limited to
1 hour or less per day of walking, standing, and bending, all of which are major life
activities, IAF, Tab 6 at 71; see 42 U.S.C. § 12102(2)(A) (setting forth a nonexclusive
list of major life activities relevant to determining whether an individual has a
disability). 5
individual with a disability is one who can “perform the essential functions of
the . . . position that such individual holds or desires” with or without reasonable
accommodation. 42 U.S.C. § 12111(8); Haas, 2022 MSPB 36 , ¶ 28. A
“qualified” individual “satisfies the requisite skill, experience, education and
other job-related requirements of the employment position such individual holds
or desires and, with or without reasonable accommodation, can perform the
essential functions of such position.” 29 C.F.R. § 1630.2(m).
The administrative judge found that the appellant failed to show by
preponderant evidence that he is a qualified individual with a disability because
he could not perform the essential functions of his PPM position with or without
reasonable accommodation. ID at 3-4, 9, 15-16. The appellant does not dispute
this finding, as it applies to his PPM position, and we discern no basis to disturb
it on review. The appellant’s medical restrictions were incompatible with the
duties of his position. IAF, Tab 6 at 61, 71, Tab 13 at 12. For example, his
medical restrictions allowed no climbing, kneeling, bending, stooping, twisting,
pulling, and pushing, and restricted his lifting and carrying to 10 pounds. IAF,
Tab 6 at 71. The position description for PPMs requires, among other things,
prolonged climbing, kneeling, bending, stooping, twisting, pulling, and pushing;
and requires the incumbent to be able to lift and carry objects frequently weighing
up to, and occasionally over, 45 pounds. IAF, Tab 13 at 12.
The appellant argues on review that the agency should have accommodated
him in different positions. PFR File, Tab 4 at 7, 9, 11-12. He contends that the
agency could have made an exception for the education requirements to give him
a trial period in a management position or employ him to train apprentice
mechanics. Id. at 9. He also challenges the finding that he was not physically
qualified for nine positions for which the agency found he did not meet the
qualifications, arguing that the agency could have modified the positions to meet
his restrictions. Id. at 11-12. 6
The administrative judge found that the appellant failed to meet his burden
to prove he could perform the duties of the identified positions, even with an
accommodation. ID at 15-16. We agree. In June 2017, the agency identified 43
positions within the appellant’s district that were vacant or would become vacant
within 30 days. IAF, Tab 6 at 52-55; HCD (testimony of the agency Human
Resources Specialist). Although there are no job descriptions for these positions
in the record, the evidence indicates that the agency found 9 positions for which
the appellant was qualified, but did not meet his medical limitations, and 34
positions for which he was not qualified. IAF, Tab 6 at 54-55. On review, the
appellant argues that the agency could have made an exception for the education
level necessary to qualify for the Operations Project Manager (OPM) or deputy
OPM position, and given him a trial period to prove that he could perform the
essential duties of those positions. PFR File, Tab 4 at 9; see IAF, Tab 6 at 16-17,
Tab 18 at 25. As noted above, he also argues that he could have trained
apprentice mechanics. PFR File, Tab 4 at 9. He asserts that he was a qualified
individual with a disability because he could have performed the essential duties
of those positions. Id.
As to the OPM or Deputy OPM positions, the administrative judge cited the
testimony of a Human Resources Specialist that the appellant lacked the requisite
education and/or skills to perform the vacant management and professional
positions. ID at 5, 16. The appellant has not specifically identified to which
vacant OPM or deputy OPM positions he refers. PFR File, Tab 4 at 9. The
record indicates that in early 2016, the appellant requested a waiver of
educational requirements for management positions he anticipated would become
vacant. IAF, Tab 18 at 25, 32. The agency identified at least one OPM position
during its June 2017 job search for vacant, funded positions. IAF, Tab 6 at 54.
Interpretive guidance from the Equal Employment Opportunity Commission
(EEOC) concerning whether an employee is a “qualified individual” states that
“[t]he first step is to determine if the individual satisfies the prerequisites for the7
position, such as possessing the appropriate educational background, employment
experience, skills, licenses, etc.” 29 C.F.R. pt. 1630, app., § 1630.2(m). The U.S.
Court of Appeals for the Ninth Circuit observed that the EEOC’s omission of any
reference to reasonable accommodation in the first step was likely deliberate
and makes clear that unless a disabled individual independently satisfies
the job requirements, including education, he is not “otherwise qualified.”
Johnson v. Board of Trustees , 666 F.3d 561, 565-66 (9th Cir. 2011).3 Thus, the
agency need not waive any education requirements as an accommodation.
As to the appellant’s assertion that he could have trained apprentice
mechanics, he cites to an email in his prehearing submission in which he actually
declined a training position. PFR File, Tab 4 at 9; see IAF, Tab 18 at 25. We
observe that the agency’s job search identified a single position concerning
training, a Training and Organizational Development Specialist, for which the
agency indicated that the appellant was not qualified. IAF, Tab 6 at 55.
Although the appellant did not identify this as the training position he desired, as
set forth above, the agency need not waive the qualifications for a position as an
accommodation. The appellant also asserted that the agency could have modified
an “administrative position . . . so that he could sit at work, not lift heavy objects,
and avoid dust.” PFR File, Tab 4 at 12-14. However, the Powerhouse Mechanic
Crew Foreman wrote that he had no administrative duties to offer, IAF, Tab 6
at 66; ID at 4, and the appellant identifies no such vacant, funded administrative
position. To the extent that he contends that the agency should have created a
position within his medical restrictions for him, PFR File, Tab 4 at 14-15, the
provision of such limited or light duty tasks that do not constitute a separate
position is not a reasonable accommodation, Gonzalez-Acosta v. Department of
Veterans Affairs , 113 M.S.P.R. 277, ¶ 13 (2010).
3 While decisions of the Federal Circuit are controlling authority for the Board, other
circuit courts’ decisions are considered persuasive, but not controlling, authority.
Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶ 15 n.12 (2016).8
As to the nine non-management and non-professional positions for which
the agency found the appellant was qualified in June 2017, the administrative
judge found that the appellant’s medical restrictions prevented him from
performing in those positions. ID at 15-16. The appellant argues on review that
the agency failed to engage in the interactive process as to those positions.4 PFR
File, Tab 4 at 11-12. However, an agency’s failure to engage in the interactive
process alone does not violate the Rehabilitation Act; rather, the appellant must
show that this omission resulted in failure to provide reasonable accommodation.
See Gonzalez-Acosta , 113 M.S.P.R. 277, ¶¶ 16-17 (finding that, because the
evidence showed that there was no appropriate vacancy to which an appellant
could be reassigned, he failed to carry his burden to show that the agency’s
failure to engage in the interactive process violated the Rehabilitation Act). As
noted above, the agency produced evidence that it unsuccessfully searched for
appropriate positions, IAF, Tab 6 at 52-55, and the appellant did not identify any.
Therefore, he failed to show that the agency’s alleged failure to engage in the
interactive process resulted in a failure to provide a reasonable accommodation.
Gonzalez-Acosta , 113 M.S.P.R. 277, ¶¶ 16-17. Accordingly, we find that the
appellant failed to establish his claim of disability discrimination based on the
agency’s alleged failure to accommodate him.
As to the appellant’s claim of status-based disability discrimination, the
administrative judge found, applying Southerland v. Department of Defense ,
119 M.S.P.R. 566, ¶ 23 (2013), that the appellant failed to establish that any
similarly situated employee was treated in a disparate manner. ID at 12-13, 16.
The appellant argues on review that the agency treated him differently because it
4 The appellant also argues that the agency called its action proposing his removal after
a quick search for available positions “highly irregular.” PFR File, Tab 4 at 12. The
appellant mischaracterized the correspondence in question. Id.; IAF, Tab 18 at 107.
The correspondence shows that the agency Human Relations Specialist was referring to
an Injury Compensation Specialist’s request that the District Commander provide a
letter with the results of the agency’s job search. IAF, Tab 18 at 107. It does not
reflect that the specialist asserted that the agency’s actions concerning its job search or
the appellant’s removal were irregular. Id. 9
allowed other employees to have light duty and stay employed, and did not
remove any other employees for medical inability to perform between
March 2013 and March 2018. PFR File, Tab 4 at 10, 15. Because we agree with
the administrative judge that the appellant is not a qualified individual with a
disability, we find that the appellant failed to prove his disparate treatment
disability discrimination affirmative defense on this basis. ID at 16; Haas, 2022
MSPB 36, ¶¶ 28-30. In light of this determination, we find it unnecessary to
consider the appellant’s argument regarding disparate treatment. We vacate the
administrative judge’s findings that the appellant failed to prove that his alleged
comparators were similarly situated.
EEO retaliation
The administrative judge found that the appellant failed to show by
preponderant evidence that retaliation for his prior EEO activities was a
motivating factor in his removal. ID at 19-20. The appellant does not dispute
this finding on review. Because we affirm the administrative judge’s finding that
the appellant failed to show that any prohibited consideration was a motivating
factor in the agency’s action, we need not resolve the issue of whether the
appellant proved that retaliation was a “but-for” cause of the agency’s decisions.
See Pridgen, 2022 MSPB 31, ¶¶ 20-22 ..
Retaliation for whistleblowing
The appellant claimed that he made protected disclosures that a
journeyman’s promotion to foreman was based on an improper relationship with
the proposing official, and that the proposing official converted full-time
temporary mechanics to permanent appointments without competitively posting
the permanent positions. IAF, Tab 18 at 91-95, Tab 20 at 3. To establish the
affirmative defense of reprisal for protected whistleblowing activity, the appellant
must prove that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or
participated in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or10
(D) and that the disclosure or protected activity was a contributing factor in the
agency’s personnel action. Ayers v. Department of the Army , 123 M.S.P.R. 11,
¶ 12 (2015); Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶¶ 12-13
(2015). If the appellant makes both of these showings by preponderant evidence,
the burden of persuasion shifts to the agency to prove by clear and convincing
evidence that it would have taken the same action in the absence of the
appellant’s protected activity. 5 U.S.C. § 1221(e)(2); Alarid, 122 M.S.P.R. 600,
¶ 14.
A protected disclosure is any disclosure of information that the appellant
reasonably believes evidences any violation of any law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8);
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 2 n.1 (2016). The
proper test for assessing whether a protected disclosure occurred is an objective
one: whether a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee could reasonably conclude
that the actions of the Government evidence one of the categories of wrongdoing
identified in 5 U.S.C. § 2302(b)(8)(A). Salerno, 123 M.S.P.R. 230, ¶ 6. The
administrative judge found that the disclosures were not protected because the
appellant failed to show that a disinterested observer with knowledge of the same
essential facts as the appellant could reasonably conclude that the actions
evidence wrongdoing set forth in 5 U.S.C. § 2302(b)(8). ID at 23. The parties do
not challenge this finding on review. Nevertheless, as explained below, we
modify the initial decision to find that the appellant’s disclosures were protected.
As to the appellant’s disclosure concerning the journeyman’s promotion, a
disinterested person with knowledge of the same essential facts as the appellant
could reasonably conclude that the proposing official promoted his preferred
candidate to Foreman based on a personal relationship. 5 U.S.C. § 2302(b)(6),
(12); Ormond v. Department of Justice , 118 M.S.P.R. 337, ¶¶ 9-10 (2012)11
(finding that an appellant made a nonfrivolous allegation that he made a protected
disclosure that the agency gave an applicant an unfair advantage, which could
constitute a violation of 5 U.S.C. § 2302(b)(6) and (b)(12)).
As to the appellant’s disclosure that the proposing official improperly
converted four non-career mechanics to career status without subjecting them to a
competitive selection process, IAF, Tab 18 at 92-93, for the following reasons,
we also find that the administrative judge erred in determining that the appellant
failed to show that a disinterested observer with knowledge of the same essential
facts as the appellant could reasonably conclude that the actions evidence
wrongdoing set forth in 5 U.S.C. § 2302(b)(8), ID at 22-23. The administrative
judge based his determination in part on his observation that the official to whom
the appellant made his alleged disclosure explained to him in response that
temporary or term employees may be converted to permanent employees without
further competition in certain situations, and the appellant failed to verify the
official’s assertion or ask her for additional information. ID at 22; IAF, Tab 18
at 91. However, the proper measure of the reasonableness of an appellant’s belief
concerning an alleged protected disclosure is his belief at the time he made the
disclosure. See Parikh v. Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 17
(2011) (observing that a subsequent investigation which confirmed that no harm
existed did not erode the reasonableness of the appellant’s belief that his
disclosure evidenced a substantial and specific danger to public health or safety at
the time he made it). Thus, the administrative judge erred in finding, based on
the official’s response to the appellant’s disclosure, that the appellant lacked a
reasonable belief he disclosed wrongdoing. ID at 22-23. Because this
disclosure also concerned alleged hiring improprieties, we find that it is
protected. Ormond, 118 M.S.P.R. 337, ¶ 10. Combined with the administrative
judge’s determination that the appellant’s alleged disclosures met the
knowledge/timing test to establish that they were a contributing factor in the12
deciding official’s decision to remove the appellant, ID at 23, we find that the
appellant established his prima facie case of whistleblowing.
The administrative judge found in the alternative that, even if the appellant
established that his disclosures were protected, the agency proved by clear and
convincing evidence that it would have made the same decision absent the
appellant’s alleged whistleblowing. ID at 23-25. The parties do not challenge
this finding on review. In determining whether an agency has shown by clear and
convincing evidence that it would have taken the same personnel action in the
absence of whistleblowing, the Board will consider the following factors: (1) the
strength of the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999).
In finding that the agency proved by clear and convincing evidence that it
would have removed the appellant absent any protected disclosures,
the administrative judge observed that the agency sustained the charge and
made appropriate efforts to return the appellant to work. ID at 24;
Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 36 (2013) (finding
that an agency’s proof of its charges is a factor weighing in its favor). Based on
the information it had at the time, the administrative judge found that the agency
had ample justification for its action. ID at 24. He also relied on the deciding
official’s assertion that the agency needed to fill the position as support for his
finding that the agency’s reasons in support of its action were strong. ID
at 24-25. We find that the agency’s need to fill the position also indicates that
agency officials were likely not motivated by retaliation, but instead by
operational needs. The administrative judge found that the agency officials
involved had little motivation to retaliate against the appellant because his13
complaints were not substantiated. Id. On the third factor, the administrative
judge found nothing in the record to suggest that any employee at the agency was
similarly unable to perform the essential functions of his position for as
prolonged a period as the appellant. ID at 25. If either or both of the first two
Carr factors do not support a finding that the agency would have taken the same
personnel action absent the disclosure or protected activity, the agency’s failure
to present evidence of the third Carr factor may prevent it from carrying its
overall burden. Smith v. Department of the Army , 2022 MSPB 4, ¶¶ 26-30; see
also Miller v. Department of Justice , 842 F.3d 1252, 1259-63 (Fed. Cir. 2016).
Nevertheless, despite any motive that agency officials had to retaliate
against the appellant for his disclosures of alleged hiring improprieties, and the
absence of evidence on the third Carr factor, the agency had an overwhelmingly
strong, non-retaliatory reason for removing the appellant, his medical inability to
do his job. See Fox, 120 M.S.P.R. 529, ¶ 40 (finding that removal for physical
inability to perform the essential functions of a position promotes the efficiency
of the service). As noted above, the appellant does not challenge the finding that
he is unable to perform the essential duties of his position with or without
accommodation. Thus, we are left with the firm belief that the agency would
have taken the same action in the absence of the appellant’s protected disclosures,
based on the strength of the evidence in support of its action, and find that
the agency showed by clear and convincing evidence that it would have
removed the appellant in the absence of his alleged protected activity. See
Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 36 (2015)
(holding that the Board does not view the Carr factors as discrete elements, each
of which the agency must prove by clear and convincing evidence, rather, the
Board will weigh the factors together to determine whether the evidence is clear
and convincing as a whole).14
The agency established nexus and that the penalty is within the tolerable bounds
of reasonableness.
Based on the appellant’s medical inability to perform the duties of his
position, and the impact of his absences on the agency’s needs, the administrative
judge found nexus. ID at 25. The appellant does not challenge this finding on
review, and we discern no reason to disturb it. See Fox, 120 M.S.P.R. 529, ¶ 40.
The Douglas factors normally used to mitigate the penalty are not relevant
in the case of a removal for medical inability to perform due to the
nondisciplinary nature of the action. Brown v. Department of the Interior ,
121 M.S.P.R. 205, ¶ 18 (2014), overruled on other grounds by Haas , 2022 MSPB
36; see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (providing a
nonexhaustive list of factors relevant to penalty determinations). Rather, the
correct standard to be applied in determining the penalty for a removal based on
physical inability to perform is whether the penalty of removal exceeded the
tolerable limits of reasonableness. Brown, 121 M.S.P.R. 205, ¶ 18.
In determining whether removal is an appropriate penalty, the Board will
consider whether the appellant could have instead been reassigned to a vacant
position within his medical restrictions. Fox, 120 M.S.P.R. 529, ¶ 40. We have
already determined that there were no vacant positions available within the
appellant’s medical restrictions and for which he possessed the requisite skills,
experience, and education. Thus, he could not be reassigned to a vacant position.
The appellant claims on review that the agency treated him less favorably
than other employees who were medically unable to perform in their positions
because no other employees were removed for medical inability between
March 2013 and March 2018. PFR File, Tab 4 at 7-8, 15. He asserts that the
agency therefore has the ability to modify positions and find reasonable
accommodations for employees. Id. at 15. We are not persuaded. As noted
above, we have already found that the agency conducted an extensive, but
unsuccessful search for positions that met the appellant’s medical restrictions.15
The fact that the agency did not remove anyone for medical inability to perform
between March 2013 and March 2018, without more, does not show that the
agency treated the appellant differently. Moreover, there is no evidence in the
record to support the appellant’s claim that employees who were given light duty
rather than removed had injuries and disabilities that were similar in severity to
his. PFR File, Tab 8 at 7-8.
Accordingly, we affirm the initial decision, as modified herein.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.16
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you17
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 18
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 19
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20 | Erickson_JonathanSF-0752-18-0227-I-1__Final_Order.pdf | 2024-07-08 | JONATHAN ERICKSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-18-0227-I-1, July 8, 2024 | SF-0752-18-0227-I-1 | NP |
1,037 | https://www.mspb.gov/decisions/nonprecedential/Peoples_Brandon_L_AT-1221-20-0234-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRANDON LEE PEOPLES,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-20-0234-W-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ianna Richardson , Esquire, and Shaun Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Gary Levine , Esquire, Arlington Heights, Illinois, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. We VACATE the administrative
judge’s finding that the appellant failed to exhaust his administrative remedies,
instead finding that the appellant exhausted with the Office of Special Counsel
(OSC) his claim that he made a protected disclosure and suffered a covered
personnel action, and we otherwise AFFIRM the initial decision.
BACKGROUND
The appellant is employed as a WG-9 Heavy Mobile Equipment Repairer.
Initial Appeal File (IAF), Tab 1 at 7. On January 13, 2020, he filed the instant
appeal and attached a copy of a December 2, 2019 letter from OSC notifying him
that it was terminating its inquiry into his allegations and providing him notice of
his Board appeal rights. Id. at 8-10. The administrative judge construed the
appellant’s filing as an IRA appeal and provided the corresponding jurisdictional
burden. IAF, Tabs 2-3. She ordered the appellant to file a statement,
accompanied by evidence, listing the following: (1) his protected disclosures or
activities; (2) the dates he made the disclosures or engaged in the activities;
(3) the individuals to whom he made any disclosures; (4) why his belief in the
truth of any disclosures was reasonable; (5) the actions the agency took or failed2
to take, or threatened to take or fail to take, against his because of his disclosures
or activities; (6) why he believed a disclosure or activity, or a perception of such
a disclosure or activity, was a contributing factor to the actions; and (7) the date
of his complaint to OSC and the date that it notified him it was terminating its
investigation of his complaint, or, if he had not received such notice, evidence
that 120 days have passed since he filed his complaint with OSC. IAF, Tab 3
at 7-8.
Pursuant to the January 22, 2020 jurisdictional order, the appellant had
until February 3, 2020, to respond.2 Id. at 1, 7. The appellant did not file a
response to the jurisdictional order. The agency submitted a timely response
requesting dismissal of the appeal, arguing that the appellant failed to make a
nonfrivolous allegation that he engaged in whistleblowing activity, or that he
made any protected disclosure or engaged in any protected activity that was a
contributing factor in the agency’s decision to take any personnel action. IAF,
Tab 5 at 5-8. Without holding the appellant’s requested hearing, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 6, Initial Decision (ID). The appellant has filed a petition
for review. Petition for Review (PFR) File, Tab 1. The agency has filed a
response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence3 that he exhausted his remedies before OSC, and make
2 The administrative judge ordered the appellant to respond within 10 calendar days of
the date of the jurisdictional order, which was January 22, 2020. IAF, Tab 3 at 1, 8.
Because the filing deadline fell on Saturday, February 1, 2020, the appellant had until
Monday, February 3, 2020, to file a response. See 5 C.F.R. § 1201.23 (providing that,
if a filing deadline falls on a weekend or Federal holiday, the filing period includes the
next business day).
3 Preponderant evidence is that degree of relevant evidence a reasonable person,
considering the record as a whole, would accept as sufficient to find a contested fact is
more likely to be true than untrue. 5 C.F.R. § 1201.4(q).3
nonfrivolous allegations that (1) he made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in a protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous
allegation is one that (1) is more than conclusory, (2) is plausible on its face, and
(3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s). The Board
generally treats OSC exhaustion as a threshold determination before considering
whether the appellant’s claims constitute nonfrivolous allegations of protected
disclosures or protected activities. See Carney v. Department of Veterans Affairs ,
121 M.S.P.R. 446, ¶¶ 4-5 (2014) (stating that the first element to Board
jurisdiction over an IRA appeal is exhaustion by the appellant of her
administrative remedies before OSC, and that the next requirement is that the
appellant nonfrivolously allege that she made a made a protected disclosure or
engaged in protected activity). In cases involving multiple alleged protected
disclosures and personnel actions, an appellant establishes Board jurisdiction over
his IRA appeal when he makes a nonfrivolous allegation that at least one alleged
personnel action was taken in reprisal for at least one alleged protected
disclosure. Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469, ¶ 6
(2010).
The Board, in Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The
requirements are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. The Board’s jurisdiction is limited to those issues that
previously have been raised with OSC. However, appellants may give a more
detailed account of their whistleblowing activities before the Board than they did
to OSC. Appellants may demonstrate exhaustion through their initial OSC4
complaint, evidence that they amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and their written responses to OSC referencing the amended
allegations. Appellants also may establish exhaustion through other sufficiently
reliable evidence, such as an affidavit or a declaration attesting that they raised
with OSC the substance of the facts in the Board appeal. Id.
The burden of proving OSC exhaustion rests with the appellant, and the
Board may consider only those protected disclosures and activities and those
personnel actions that the appellant first raised with OSC. Id. Any doubt or
ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of finding jurisdiction. Rzucidlo v.
Department of the Army , 101 M.S.P.R. 616, ¶ 14 (2006). Once an appellant
establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the
merits of his claim, which he must prove by preponderant evidence. Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). If the appellant proves
that his protected disclosure or activity was a contributing factor in a personnel
action taken against him, the agency is given an opportunity to prove, by clear
and convincing evidence, that it would have taken the same personnel action in
the absence of the protected disclosure. Id.
We vacate the administrative judge’s finding that the appellant failed to prove
that he exhausted his administrative remedies before OSC.
On review, the appellant challenges the administrative judge’s finding that
he failed to prove that he exhausted his administrative remedies with OSC.
PFR File, Tab 1 at 8. For the following reasons, we conclude that the
administrative judge erred in determining that the appellant failed to exhaust his
administrative remedies. We therefore vacate that portion of the initial decision
and instead conclude that the appellant met his burden of proving that he
exhausted his administrative remedies with OSC.5
As the administrative judge noted, the appellant did not provide a copy of
his OSC complaint with his initial appeal and has not provided a copy of the
complaint with his petition for review. IAF, Tab 1; PFR File, Tab 1; ID at 6-7.
He also did not provide an “affidavit, sworn statement, or declaration under
penalty of perjury” identifying the nature of his claims. IAF, Tab 3 at 7-8; ID
at 7.
However, the appellant did provide a copy of OSC’s close-out letter, which
does shed some additional light on the jurisdictional matter at issue. IAF, Tab 1
at 8-10. In its letter, OSC identified the appellant’s complaint as stating that, in
February 2018, he disclosed to his supervisor an allegedly fraudulent fuel card
expense form submitted in the appellant’s name. Id. at 8. In retaliation for his
purported disclosure, OSC described, the appellant alleged that agency officials
would not permit him to use a fuel card or allow him access to agency vehicles,
refused to assist him in inputting his work time into the time and attendance
system, wrote him up, issued him a lowered annual performance appraisal rating,
failed to select him for three positions, and subjected him to a hostile work
environment. Id. at 8-9. The letter also states that the appellant reported the
above issues to the agency’s Office of the Inspector General (OIG) in or around
September 2019.4 Id. at 8.
In the initial decision, the administrative judge acknowledged these
assertions in OSC’s close-out letter but nevertheless concluded that the appellant
offered nothing more than a conclusory statement that the agency committed a
prohibited personnel practice, and that OSC’s letter failed to “identify the context
4 Although OSC’s close-out letter identifies that the appellant raised these same issues
with OIG, it does not identify any allegation by the appellant that any of the challenged
personnel actions were taken in retaliation for his disclosure to OIG, and the appellant
did not raise any such claim below or on review. IAF, Tab 1; PFR File, Tab 1.
Consequently, we do not interpret OSC’s statement as an allegation that the appellant
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C), and we have not
considered it as such. See 5 U.S.C. § 2302(b)(9)(C) (describing as a protected activity
“cooperating with or disclosing information to the Inspector General . . . of an
agency . . . in accordance with applicable provisions of law”).6
in which the appellant raised his claims as to the alleged protected disclosure or
personnel actions.” ID at 7. Consequently, she concluded that the appellant did
not provide evidence that he informed OSC of the “precise ground of his claims,”
and so he failed to provide OSC with a sufficient basis to pursue an investigation.
Id.
On review, the appellant argues that the use of the word “fraudulent” in
describing his disclosure of an “allegedly fraudulent fuel card expense”
sufficiently demonstrates that he alleged a violation of a law, rule, or regulation
related to a false statement contained in a government document. PFR File, Tab 1
at 8. We agree. A protected whistleblowing disclosure is a disclosure of
information that the appellant reasonably believes evidences any violation of any
law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public health or safety.
5 U.S.C. § 2302(b)(8); Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547, ¶ 7 (2016). At the jurisdictional stage, the appellant only is
burdened with making a nonfrivolous allegation that he reasonably believed that
his disclosure evidenced one of these circumstances. See Bradley, 123 M.S.P.R.
547, ¶ 7.
Construing the appellant’s claim liberally, falsifying an official expense
request could constitute a violation of law under 18 U.S.C. § 1001(a)(3)
(describing as unlawful, “mak[ing] or us[ing] any false writing or document
knowing the same to contain any materially false, fictitious, or fraudulent
statement or entry”); see Luecht v. Department of the Navy , 87 M.S.P.R. 297, ¶ 13
(2000) (finding that the appellant made a nonfrivolous allegation that his
disclosure concerning fraudulent training forms evidenced a violation of
18 U.S.C. § 1001, despite the fact that he did not identify the specific law, rule,
or regulation that he believed was violated). The agency appears to acknowledge
that the appellant disclosed the falsified fuel expense, an investigation into the
matter was conducted, the issue was corrected, and changes were made to the7
agency’s procedures. IAF, Tab 5 at 6, 16. Additionally, although the agency
agrees with the administrative judge’s finding that the appellant failed to prove
exhaustion on review, it did not dispute the appellant’s claim that he had
exhausted his administrative remedies regarding this purported disclosure below.
PFR File, Tab 4 at 5-6; IAF, Tab 5 at 6. Consequently, based on the record
before us, we conclude that a reasonable person in the appellant’s position could
reasonably believe that his disclosure evidenced a violation of law.
Regarding the appellant’s claim that he was subjected to a covered
personnel action, although the administrative judge did not directly address this
portion of the jurisdictional inquiry below, the Board has held that a performance
appraisal, even if it was at the “fully successful” performance level and was not
tangibly lower in comparison to previous years, can still constitute a covered
personnel action under section 2302(a)(2)(A). IAF, Tab 5 at 6-7, 23-26; Rumsey
v. Department of Justice , 120 M.S.P.R. 259, ¶ 16 (2013). A written reprimand is
also a covered personnel action, see Horton v. Department of Veterans Affairs ,
106 M.S.P.R. 234, ¶ 18 (2007), as is a nonselection for a position, see Johnson v.
Department of Health and Human Services , 87 M.S.P.R. 204, ¶ 9 (2000).
Regarding the appellant’s allegation that he was subjected to a hostile work
environment in response to his purported disclosure, the Board has held that the
creation of a hostile work environment may constitute a personnel action under
5 U.S.C. § 2302(a)(2)(A)(xii) to the extent that it represents a significant change
in duties, responsibilities, or working conditions. Skarada v. Department of
Veterans Affairs , 2022 MSPB 17, ¶ 16 (explaining that agency actions that,
individually or collectively, have practical and significant effects on the overall
nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
subsection 2302(a)(2)(A)(xii)). Accordingly, we conclude that the appellant also
nonfrivolously alleged that he suffered a covered personnel action.8
We nonetheless agree with the administrative judge’s finding that the appellant
did not make a nonfrivolous allegation that his disclosure was a contributing
factor in the agency’s decision to take any of the identified personnel actions.
The next jurisdictional inquiry is whether the appellant made a
nonfrivolous allegation that his disclosure was a contributing factor in the
agency’s decision to take or fail to take any personnel action.
Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. §§ 1221(e)(1), 2302(b)(8), (b)(9)(A)
(i), (B), (C), or (D). To satisfy the contributing factor criterion, an appellant need
only raise a nonfrivolous allegation that the fact or content of the protected
disclosure or the protected activity was one factor that tended to affect the
personnel action in any way. Salerno, 123 M.S.P.R. 230, ¶ 13. One way to
establish this criterion is the knowledge/timing test, under which an appellant
may nonfrivolously allege that the disclosure or activity was a contributing factor
in a personnel action through circumstantial evidence, such as evidence that the
official taking the personnel action knew of the disclosure or activity, and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure or activity was a contributing factor in the
personnel action. 5 U.S.C. § 1221(e)(1); see Salerno, 123 M.S.P.R. 230, ¶ 13.
In an alternate finding, the administrative judge concluded that, even if the
appellant proved that he exhausted his administrative remedies with OSC, he
nevertheless failed to make a nonfrivolous allegation that his protected disclosure
or activity was a contributing factor in the agency’s decision to take any
personnel action. ID at 7 n.7. We agree with this alternate finding.
As previously noted, the appellant failed to respond to the administrative judge’s
IRA jurisdiction order, so the only information we have to rely on is the sparse
narrative statement he provided with his initial appeal, along with OSC’s
characterization of the appellant’s claims as identified in its close-out letter.
IAF, Tab 1. The Board has held that a personnel action taken within 1 to 2 years
of a protected disclosure satisfies the “timing” portion of the knowledge/timing9
test. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015).
Consequently, the challenged personnel actions, all of which the appellant alleges
occurred at some point between when he made his disclosure in February 2018,
and when he filed his OSC complaint in November 2019, appear to meet the
“timing” portion of the test. IAF, Tab 1 at 4, 8-9.
With regard to the “knowledge” portion of the test, the paucity of relevant
information included in these two documents makes it impossible to discern what,
exactly, the appellant disclosed with regard to the fraudulent fuel card expense,
who was responsible for each of the allegedly retaliatory actions, and which
responsible management officials were aware of the appellant’s purported
disclosure at the time they took the allegedly retaliatory personnel actions. IAF,
Tab 1 at 5, 8-9. The appellant also has not elaborated on any of these matters on
review. PFR File, Tab 1. Based on the existing record, we conclude that the
appellant has failed to satisfy the “knowledge” portion of the test. Accordingly,
we conclude that the appellant failed to meet his burden under the
knowledge/timing test, i.e., to nonfrivolously allege that his protected disclosure
was a contributing factor in any of the personnel actions taken against him. See
Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661,
¶ 12 (2015) (finding that vague, conclusory, and unsupported allegations do not
satisfy the Board’s nonfrivolous pleading standard) ; see also Stiles v. Department
of Homeland Security , 116 M.S.P.R. 263, ¶ 23 (2011) (finding that the appellant
failed to establish contributing factor through the knowledge/timing test when he
failed to show that any of the officials involved in his nonselection were aware of
his protected disclosure).
The knowledge/timing test is not the only way for an appellant to satisfy
the contributing factor standard. Stiles, 116 M.S.P.R. 263, ¶ 24. If the appellant
fails to satisfy that test, the Board shall consider other evidence, such as that
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed at the10
proposing or deciding officials, and whether those individuals had a desire or
motive to retaliate against the appellant. Id. As explained above, based on the
existing record, we cannot discern which of the management officials responsible
for the challenged personnel actions had actual or constructive knowledge of the
appellant’s protected disclosure. Despite being afforded the opportunity to do so,
the appellant failed to provide additional detail related to his jurisdictional burden
below, and he makes no argument regarding the contributing factor criterion on
petition for review. IAF, Tab 1; PFR File, Tab 1. Accordingly, we agree with the
administrative judge’s alternate finding and conclude that the appellant failed to
nonfrivolously allege that he made a protected disclosure that was a contributing
factor in the agency’s decision to take a covered personnel action. Based on the
appellant’s failure to establish Board jurisdiction over his IRA appeal, it was
properly dismissed.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 12
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Peoples_Brandon_L_AT-1221-20-0234-W-1__Final_Order.pdf | 2024-07-08 | BRANDON LEE PEOPLES v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-20-0234-W-1, July 8, 2024 | AT-1221-20-0234-W-1 | NP |
1,038 | https://www.mspb.gov/decisions/nonprecedential/Cobb_ReneeDC-0752-20-0183-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENEE COBB,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-20-0183-I-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Edward Harris, Jr. , Esquire, North Las Vegas, Nevada, for the
appellant.
Daniel Fevrin , Esquire, and Kathleen A. O’Neill , Washington, D.C., for the
agency.
Lauren Leathers , Esquire, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her indefinite suspension based upon the suspension of her security
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
clearance. On review, the appellant disputes the appropriateness of the
administrative judge’s legal analysis and several of his rulings throughout the
processing of her appeal. Petition for Review (PFR) File, Tab 1. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly affirmed the appellant’s indefinite suspension.
We agree with the administrative judge’s determination to sustain the
appellant’s indefinite suspension. Initial Appeal File (IAF), Tab 37, Initial
Decision (ID). As a General Engineer, the appellant occupied a noncritical
sensitive position that required her to obtain and maintain a security clearance.
IAF, Tab 12 at 509. Once the appellant’s access to classified information,
assignment to a sensitive position, and physical access to the Naval Sea Systems
Command (NAVSEA) Headquarters facilities were suspended, she became unable
to perform the essential functions of her position, or any position within
NAVSEA. IAF, Tab 11 at 6, Tab 12 at 10, Tab 13 at 4-6. Therefore, we agree2
with the administrative judge’s findings that the appellant’s indefinite suspension
was for an authorized reason, had an ascertainable end, was reasonable, and
promoted the efficiency of the service. ID at 9-14.
The administrative judge correctly applied the harmful procedural error doctrine.
On review, the appellant argues that the agency’s correction of the
shortened notice period should be considered an attempt to moot her appeal
through the rescission of the action. PFR File, Tab 1 at 4. As a result, the
appellant asserts that the administrative judge applied the incorrect analysis of
harmful procedural error when analyzing the shortened notice period, and should
have applied the case law applicable to an agency’s incomplete efforts at
rescission. Id. We agree with the administrative judge’s use of the harmful
procedural error standard. ID at 10-13.
The Board has analyzed shortened notice periods in violation of 5 U.S.C.
§ 7513(b)(1) using a harmful procedural error analysis. Callery v. Department of
Justice, 50 M.S.P.R. 158, 162 (1991); Metzger v. Department of Housing and
Urban Development , 6 M.S.P.R. 434, 436 (1981) (finding that an appellant failed
to establish harmful procedural error when he was terminated via a reduction in
force 2 days before the required 70-day notice period ended). To prove harmful
procedural error, the appellant must prove that the agency committed an error in
application of its procedures and that it is likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. Forte v. Department of the Navy , 123 M.S.P.R. 124, ¶ 9 (2016);
5 C.F.R. § 1201.4(r). Although the agency erred in placing the appellant in an
indefinite suspension status less than 30 days after providing her notice, the
appellant has not shown that had the agency given her the full 30 days, it would
have resulted in an outcome different than the imposition of an indefinite
suspension.2 ID at 12-13. Thus, because the shortened notice period did not
2 Generally, in the absence of a showing of harm, where an agency improperly shortens
the requisite 30-day period, the Board remedies the error by ordering the agency to3
affect the outcome of this matter, the appellant did not establish harmful
procedural error. Id.
Although the administrative judge abused his discretion in excluding the
appellant’s exhibits, the error did not affect the outcome of this appeal.
On review, the appellant argues that the administrative judge abused his
discretion in excluding her exhibits because she failed to mark her exhibits
pursuant to the administrative judge’s instructions in the January 3, 2020 Order
and Notice of Hearing, Status Conference, and Prehearing Conference (Hearing
Order). PFR File, Tab 1 at 5-6. An administrative judge has wide discretion to
control the proceedings of an appeal. Sanders v. Social Security Administration ,
114 M.S.P.R. 487, ¶ 10 (2010); 5 C.F.R. § 1201.41. In order to obtain a reversal
of an initial decision based upon an abuse of discretion, the petitioning party must
show that the resulting error affected the outcome of the case. Sanders,
114 M.S.P.R. 487, ¶ 10; 5 C.F.R. § 1201.115(c). While we find that the
administrative judge abused his discretion in excluding the appellant’s exhibits,
we do not find that the error affected the outcome of the case.
The Hearing Order directed the parties to submit prehearing submissions,
including “a copy of exhibits accompanied by an index identifying the
documents. [The parties] must separately mark for identification every document
in the lower right hand corner. The appellant must mark exhibits by letter, the
agency by number. Each exhibit exceeding 10 pages in length must be
paginated.” IAF, Tab 19 at 2. The Hearing Order did not advise either party of
any consequences for failing to adhere to the directives. Id. at 1-4.
The appellant timely filed her prehearing submission, including citations to
relevant cases, statutes, rules, and other authorities, a copy of various agency
policies, a table of exhibits, a statement of facts and argument related to various
compensate the appellant for the full 30-day period. Callery, 50 M.S.P.R. at 162. The
record establishes that the agency did correct the effective date of the suspension and
provided back pay to the appellant. IAF, Tab 32 at 5-9. The appellant does not dispute
that she was provided with back pay. PFR File, Tab 1 at 6.4
defenses, and approximately forty pages of emails, letters, and screenshots of text
messages. IAF, Tab 27. Although the appellant’s filing was jumbled, the
appellant included a table of exhibits, Bates-stamped the documents in the bottom
right-hand corner, and marked the exhibits in the upper right-hand corner with a
letter. Id. at 6-7, 84-114. Nonetheless, the administrative judge excluded the
appellant’s exhibits, stating that none of the exhibits were marked in accordance
with the Hearing Order.3 IAF, Tab 29 at 5. However, the administrative judge
did note that the appellant could refer to the relevant sections of agency
regulations, as the Board can take judicial notice of regulations. Id.
We find that the administrative judge abused his discretion in excluding the
appellant’s exhibits. Although the appellant’s manner of identifying her exhibits
was peculiar, it appears that she made a good-faith effort to follow the
instructions contained within the Hearing Order, including a table of exhibits,
paginating the exhibits, and identifying the exhibits with a letter in the top
right-hand corner.4 IAF, Tab 27 at 6-7, 84-114. Furthermore, the administrative
judge failed to provide the appellant with an opportunity to cure any errors in
markings and also failed to provide her with notice that mismarking the exhibits
would result in exclusion of her exhibits. IAF, Tabs 19, 29. Given that the
appellant attempted to comply with the Hearing Order and the administrative
judge failed to provide the appellant with an opportunity to correct her errors or
any notice as to the consequences of her errors, the administrative judge abused
3 In his summary of the prehearing conference, the administrative judge stated that
“none were unmarked as exhibits as directed in the Hearing Order of January 3, 2020.
Accordingly they will not be accepted as hearing exhibits.” IAF, Tab 29 at 5. We
assume, based upon the context and the appellant’s prehearing submissions, that the
exhibits were excluded due to a marking issue.
4 Although it is unclear why the appellant lettered her exhibits in a non-consecutive
manner, the Hearing Order did not require that the letters or numbers be consecutive.
IAF, Tab 19 at 2, Tab 27 at 84-114. Additionally, while the Order required documents
over 10 pages to be paginated, the appellant Bates-stamped the entire document instead
of separately paginating each exhibit over 10 pages. IAF, Tab 19 at 2, Tab 27
at 84-114. 5
his discretion in excluding the appellant’s exhibits. See Hart v. Department of
Agriculture, 81 M.S.P.R. 329, ¶ 8 (1999) (concluding that the administrative
judge abused her discretion by excluding exhibits after failing to provide the
appellant with a reasonable opportunity to comply with the judge’s order).
However, the appellant must establish that the disallowed exhibits would
have changed the outcome of the appeal to prevail on a petition for review.
Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 14 (2013) (finding
that the appellant did not prevail because she failed to establish how the
disallowed exhibits would have changed the outcome of the case). While we
believe that the administrative judge abused his discretion by excluding the
appellant’s exhibits, the appellant has not explained the impact of the disallowed
exhibits on the outcome of the case. PFR File, Tab 1 at 5-6. The proposed
exhibits included: a letter to the appellant regarding her Freedom of Information
Act (FOIA) request from 2016, a memorandum for the record written by the
appellant about the suspension of her security clearance, an information
technology department work ticket from 2016, a property pass authorizing the
appellant to take a laptop from the agency facility from 2018, an email from the
appellant regarding her computer, another property pass from 2019, confirmation
of her submission of the FOIA request from 2016, and a series of text messages
that appear to be largely personal in nature, dated 2015 to 2016. IAF, Tab 27
at 84-114. Although the appellant states on review that she believes the exclusion
was unwarranted and unjust, she does not explain how the exclusion tangibly
affected the outcome of the case, except to claim that the exhibits establish that
the indefinite suspension was “personal.” PFR File, Tab 1 at 7-8.
However, the exhibits do not rebut the facts that led the administrative
judge to affirm the indefinite suspension, namely that the appellant’s security
clearance was suspended, that she could not perform the essential functions of her
job or any other position within NAVSEA without a security clearance, that the
indefinite suspension would end upon final disposition of the security clearance,6
and that she was afforded rights under 5 U.S.C. § 7513. ID at 9-14. Because the
administrative judge’s abuse of discretion did not result in an error that affected
the outcome of this appeal, there is no need to disturb the administrative judge’s
findings. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984)
(stating that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision).
The administrative judge did not exhibit bias or favoritism in his rulings.
The appellant asserts that the administrative judge exhibited favoritism or
bias in his rulings, to include allowing the agency to supplement the agency file
with evidence of a corrected effective date for the indefinite suspension and
payment of back pay in response to the appellant’s claim of harmful procedural
error. PFR File, Tab 1 at 6.
The administrative judge has wide discretion to control his proceedings.
Sanders, 114 M.S.P.R. 487, ¶ 10 (2010); 5 C.F.R. § 1201.41. In making a claim
of bias or prejudice against an administrative judge, a party must overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386
(1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if her comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63
(Fed. Cir. 2002). The appellant has not identified any conduct by the
administrative judge that would reflect antagonism or favoritism, nor has she
raised any allegations that would support a finding of bias. The fact that an
administrative judge ruled against the appellant is insufficient evidence to
show bias. Coufal v. Department of Justice , 98 M.S.P.R. 31, ¶ 11 (2004). Thus,
we find that the appellant has not overcome the presumption of honesty and
integrity that accompanies an administrative judge or established that the7
administrative judge abused his discretion in allowing the agency to supplement
the agency file.5
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
5 The appellant also asserts that the administrative judge improperly limited the scope
of the appeal by declining to hear the appellant’s numerous affirmative defenses. PFR
File, Tab 1 at 7. We see no error in the administrative judge’s framing of the issues in
this matter. IAF, Tab 19 at 1. The Board is limited in its authority to review adverse
actions based upon the suspension or revocation of a security clearance and is unable to
review the substance of the underlying security clearance determination, including
affirmative defenses of discrimination and reprisal. Wilson v. Department of the Navy ,
843 F.3d 931, 935 (Fed. Cir. 2016 ); Grimes v. Department of Justice , 122 M.S.P.R. 36,
¶ 7 (2014).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,9
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 10
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Cobb_ReneeDC-0752-20-0183-I-1__Final_Order.pdf | 2024-07-08 | RENEE COBB v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-20-0183-I-1, July 8, 2024 | DC-0752-20-0183-I-1 | NP |
1,039 | https://www.mspb.gov/decisions/nonprecedential/Tartaglia_Mark_J_DC-0752-14-1108-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK J. TARTAGLIA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBERS
DC-0752-14-1108-C-2
DC-0752-14-1108-C-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Timothy M. O’Boyle , Esquire, Hampton, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the compliance initial
decision that denied his petition for enforcement of the Board’s final order.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We
FORWARD the appellant’s petition for review to the regional office for
docketing as a new constructive removal appeal.
BACKGROUND
The agency removed the appellant for misconduct on September 19, 2014,
and the appellant appealed his removal to the Board. Tartaglia v. Department of
Veterans Affairs , MSPB Docket No. DC-0752-14-1108-I-1, Initial Appeal File,
Tab 1. After extensive litigation, including a remand from the U.S. Court of
Appeals for the Federal Circuit, the administrative judge issued an initial decision
mitigating the appellant’s removal to a 30-day suspension. Tartaglia v.
Department of Veterans Affairs , MSPB Docket No. DC-0752-14-1108-M-1,
Remand File, Tab 9, Remand Initial Decision (RID) (Mar. 28, 2019); Tartaglia v.
Department of Veterans Affairs , 858 F.3d 1405 (Fed. Cir. 2017). Neither party
petitioned for review, and the remand initial decision became final. See 5 C.F.R.
§ 1201.113. The administrative judge ordered the agency to, among other things,
mitigate the removal to a 30-day suspension and pay the appellant the appropriate
amount of back pay. RID at 4.
On June 6, 2019, the appellant filed a petition for enforcement, claiming
that the agency failed to provide him a return-to-duty date. Tartaglia v.
Department of Veterans Affairs , MSPB Docket No. DC-0752-14-1108-C-1,
Compliance File (C-1 CF), Tab 1. The agency responded that it replaced the
removal with a 30-day suspension and purged the appellant’s Official Personnel
File of references to the removal, but it was unable to return the appellant to duty
or pay him any back pay because he applied for and received a disability
retirement retroactive to the date of his removal. C-1 CF, Tab 6 at 4, 9-10,
Tab 10 at 6-10. The appellant argued that his disability retirement did not affect
his entitlement to back pay or reinstatement because he had not had a chance to
seek reasonable accommodation, which he could only do after being restored to
duty. C-1 CF, Tab 7, Tab 11 at 4-7. During the pendency of the petition for
enforcement, the appellant filed a second petition for enforcement raising
substantially the same issues. Tartaglia v. Department of Veterans Affairs ,
MSPB Docket No. DC-0752-14-1108-C-2, Compliance File, Tab 1. The
administrative judge joined the petitions for processing. C-1 CF, Tab 9.
After the close of the record, the administrative judge issued an initial
decision denying the petitions for enforcement. C-1 CF, Tab 12, Compliance
Initial Decision (CID). He found that the appellant failed to provide sufficient
legal authority to support his argument and that the agency had complied with the
Board’s final order. CID at 7-8.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis. Petition for Review (PFR) File, Tab 1. The agency has filed a
response to the petition for review, and the appellant has filed a reply to the
agency’s response. PFR File, Tabs 3-4.
ANALYSIS
In proceedings on petition for enforcement of a Board order, the agency
bears the burden of proving that it has complied with the final order. Lua v.
Office of Personnel Management , 100 M.S.P.R. 431, ¶ 8 (2005). As part of its
burden of proving compliance, the agency must establish that it returned the
appellant as nearly as possible to the status quo ante. Williams v. Department of
the Navy, 79 M.S.P.R. 364, 367 (1998).
In this case, it is undisputed that, on February 23, 2015, the Office of
Personnel Management (OPM) granted the appellant’s application for disability
retirement retroactive to September 19, 2014, the date of his removal. CID at 4;
C-1 CF, Tab 6 at 7-8. It is the agency’s position that the disability retirement
extinguished the appellant’s right to back pay and reinstatement to his former
position. PFR File, Tab 3 at 7-77. The appellant, however, argues that he was
able to obtain disability retirement only because the agency prevented him from
seeking reasonable accommodation due to its improper removal action. PFR File,
Tab 1 at 5-6. He argues that a proper status quo ante remedy would be to return
him to his position of record, thereby allowing him to seek reasonable
accommodation. Id. at 5-7.
We have considered the precedent that the appellant has cited in support of
his argument, but we agree with the administrative judge that it does not control
the outcome of this case. CID at 7. The appellant cites a compliance initial
decision in Abbott v. U. S. Postal Service , MSPB Docket No. DC-0752-12-0366-
C-2, for the proposition that back pay is not offset by the receipt of disability
retirement benefits. C-1 CF, Tab 7 at 5. However, it is well settled that initial
decisions have no precedential value. Social Security Administration v. Abell ,
47 M.S.P.R. 98, 101 (1991). Moreover, we find that the initial decision in Abbott
has no persuasive value in this case. In reaching her decision, the administrative
judge relied on two Equal Employment Opportunity Commission decisions,
Burnett v. U.S. Postal Service , EEOC Appeal No. 01981618, 2005 WL 3369045
(Nov. 23, 2005), and Savage v. U.S. Postal Service , EEOC Appeal No. 01960183,
2000 WL 361776 (Mar. 28, 2000). Abbott, MSPB Docket No. DC-0752-12-0366-
C-2, Tab 10, Compliance Initial Decision at 6 (Apr. 27, 2018). We are not
convinced that her reliance on these decisions was correct because the appellant
in Abbott was a preference eligible and therefore subject to the Back Pay Act, but
there is no indication that the petitioners in Burnett and Savage were preference
eligible, and therefore they were presumably subject instead to the Postal
Service’s back pay regulations, found in the U.S. Postal Service Employee and
Labor Relations Manual, part 436. Abbott v. U.S. Postal Service , MSPB Docket
No. DC-0752-12-0366-I-1, Initial Appeal File, Tab 1 at 1; see House v. U.S.
Postal Service, 85 M.S.P.R. 260, 262 (2000) . We have reviewed the Postal
Service’s back pay regulations and found no provision in them for offsetting back
pay due to a disability retirement award, whereas OPM’s regulations
implementing the Back Pay Act explicitly provide for offset of “erroneous
payments received from the Government as a result of the unjustified or
unwarranted personnel action.” 5 C.F.R. § 550.805(e)(2). In any event, the
language that the appellant cites in Abbott pertains to the offset of back pay; it
does not pertain to his right to receive back pay in the first place. C -1 CF, Tab 7
at 5.
The appellant also cites to Smith v. Department of the Army , 458 F.3d 1359
(Fed. Cir. 2006), and Payne v. Department of Veterans Affairs , EEOC Appeal No.
01A42405, 2004 WL 1959632 (Aug. 24, 2004), for the proposition that back pay
covers the entire period for which the challenged personnel action was in effect.
C-1 CF, Tab 11 at 6-7. Although this proposition is true, we agree with the
administrative judge that the outcomes of Smith and Payne were grounded in facts
that are absent in the instant appeal. CID at 7. The court in Smith found that the
appellant’s entitlement to back pay for his constructive suspension was not
extinguished by his subsequent removal for physical inability to perform because
that removal was the result of the agency’s failure to accommodate the
appellant’s disability. 458 F.3d at 1365-66. Importantly, the court found that
“the action for which Smith seeks relief, the illegal discrimination, was clearly
adjudicated on its merits.” Likewise, in Payne, the Equal Employment
Opportunity Commission (EEOC) found that the appellant’s disability retirement
did not extinguish her right to back pay because she was forced to take disability
retirement as a result of the agency’s failure to accommodate her medical
conditions. EEOC Appeal No. 01A42405, 2004 WL 1959632, at *4-*6. By
contrast, there has been no finding in the instant appeal that the appellant’s
disability retirement was the product of discrimination or was otherwise invalid.
Next, the appellant cites Bonggat v. Department of the Navy , 56 M.S.P.R.
402 (1993), for the proposition that status quo ante relief requires that an
appellant be returned to his former position regardless of whether he is physically
able to perform in that position. C-1 CF, Tab 11 at 5. However, the relief
ordered in Bonggat was based on a removal for physical inability to perform that
the Board found was the product of whistleblower reprisal, and there was no
subsequent disability retirement involved. 56 M.S.P.R. at 407-13. We agree with
the administrative judge that the Board’s decision in Bonggat is not instructive
under the facts of the instant appeal. CID at 7. The appellant cites Spencer v.
Department of the Navy , 82 M.S.P.R. 149 (1999), for a similar proposition,
arguing that once the Board in that case reversed the appellant’s removal for
physical inability to perform, the agency restored him to his former position
despite the fact he had filed for disability retirement. C-1 CF, Tab 7 at 5-6,
Tab 11 at 6. However, we agree with the administrative judge that Spencer is not
controlling because, in that case, OPM had rescinded its approval of the
appellant’s disability retirement application. 82 M.S.P.R. 149, ¶ 17.
Having considered the authorities that the appellant cited in support of his
petition, we find that this case is instead controlled by Cooper v. Department of
the Navy, 108 F.3d 324 (Fed. Cir. 1997). In Cooper, the agency removed the
petitioner for physical inability to perform, and during the pendency of his Board
appeal, in which he did not allege discrimination, the petitioner’s application for
disability retirement was approved retroactive to a date prior to his removal.2
108 F.3d at 325. The agency then expunged the appellant’s removal and amended
its records to reflect a separation by disability retirement. Id. The court found
that the appeal was moot because the agency’s cancellation of the removal action
and the expungement of all references to that action from the petitioner’s official
personnel file eliminated all the consequences of the action. Id. at 326. An
appeal is moot when the petitioner has received all of the relief that he could have
received if the matter had been adjudicated and he had prevailed. Hernandez v.
Department of the Air Force , 498 F.3d 1328, 1333 (Fed. Cir. 2007); Harris v.
Department of Transportation , 96 M.S.P.R. 487, ¶ 8 (2004). The necessary
implication for the instant appeal is that the appellant is entitled to no further
relief beyond the cancellation of the removal in favor of a separation by disability
retirement and a correction of the agency’s records. Like the appellant in the
instant appeal, the petitioner in Cooper argued that he was entitled to restoration
and back pay notwithstanding his disability retirement. 108 F.3d at 326.
However, the court found that in order to be entitled to such further relief, the
petitioner would need to show that his disability retirement amounted to a
constructive removal. Id. Neither the petitioner in Cooper nor the appellant in
the instant appeal made any such showing.
In sum, the cases on which the appellant relies either did not involve an
intervening event that could have limited status quo ante relief, or they involved
intervening events that were subsequently invalidated. By contrast, Cooper
involved an intervening event (the petitioner’s disability retirement) that
remained valid and in force. Because the appellant in this case has not shown his
disability retirement to be invalid, we find that Cooper controls. Because the
appellant’s disability retirement was effective the date of his removal, the agency
was not required to reinstate the appellant or provide him back pay in order to
2 The petitioner filed his discrimination claim in district court, but the Federal Circuit
lacked jurisdiction over that claim, which remained undecided at the time the Federal
Circuit issued its decision affirming the Board’s order. Cooper, 108 F.3d at 325-27.
return him to the status quo ante. Unless and until the disability retirement is
shown to be a constructive removal, the Board cannot find otherwise.
As explained above, the appellant argues that he is entitled to reinstatement
and back pay because his disability retirement was a consequence of the agency’s
failure to accommodate his condition. This is a constructive removal claim, see,
e.g., Lorenz v. U.S. Postal Service , 84 M.S.P.R. 670 (2000), and these compliance
proceedings are not the proper avenue for litigating such a claim. Nevertheless, if
the appellant is able to show that his disability amounted to a constructive
removal, he may be able to obtain the relief he is seeking. We therefore forward
the petition for review to the regional office for docketing as a timely
constructive removal appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Tartaglia_Mark_J_DC-0752-14-1108-C-1__Final_Order.pdf | 2024-07-08 | MARK J. TARTAGLIA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0752-14-1108-I-1, July 8, 2024 | DC-0752-14-1108-I-1 | NP |
1,040 | https://www.mspb.gov/decisions/nonprecedential/Tartaglia_Mark_J_DC-0752-14-1108-A-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK J. TARTAGLIA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0752-14-1108-A-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Timothy M. O’Boyle , Esquire, Hampton, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the addendum initial
decision, which denied his motion for attorney fees. For the reasons discussed
below, we GRANT the appellant’s petition for review, REVERSE the addendum
initial decision, and GRANT the appellant’s motion for attorney fees.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The agency removed the appellant for misconduct on September 19, 2014,
and the appellant appealed his removal to the Board. Tartaglia v. Department of
Veterans Affairs , MSPB Docket No. DC-0752-14-1108-I-1, Initial Appeal File
(IAF), Tab 1. After extensive litigation, including a remand from the United
States Court of Appeals for the Federal Circuit, the administrative judge issued an
initial decision mitigating the appellant’s removal to a 30-day suspension.
Tartaglia v. Department of Veterans Affairs , MSPB Docket No. DC-0752-14-
1108-M-1, Remand File, Tab 9, Remand Initial Decision (RID) (Mar. 28, 2019);
Tartaglia v. Department of Veterans Affairs , 858 F.3d 1405 (Fed. Cir. 2017).
Neither party petitioned for review, and the remand initial decision became final.
See 5 C.F.R. § 1201.113. The administrative judge ordered the agency to, among
other things, mitigate the removal to a 30-day suspension and pay the appellant
the appropriate amount of back pay. RID at 4.
On June 6, 2019, the appellant filed a petition for enforcement, seeking
reinstatement and back pay. Tartaglia v. Department of Veterans Affairs , MSPB
Docket No. DC-0752-14-1108-C-1, Compliance File (CF). On November 14,
2019, the administrative judge denied the petition, finding that the appellant
entered into disability retirement retroactive to the date of his removal, and that
status quo ante relief therefore did not require the agency to reinstate him or give
him back pay. CF, Tab 12. The appellant filed a petition for review of the
compliance initial decision, and the Board issued a nonprecedential final order
denying the petition for review. Tartaglia v. Department of Veterans Affairs ,
MSPB Docket No. DC -0752-14-1108-C-2, Final Order (July 8, 2024);
Tartaglia v. Department of Veterans Affairs , MSPB Docket No. DC-0752-14-
1108-C-1, Petition for Review File, Tab 1, Tab 5, Final Order.
Meanwhile, on May 8, 2019, the appellant filed the instant motion for
attorney fees, seeking $4,640 in attorney fees incurred during the remand and
attorney fee proceedings. Attorney Fee File (AFF), Tabs 1, 3, 5. The2
administrative judge issued an addendum initial decision, denying the appellant’s
motion. AFF, Tab 6, Addendum Initial Decision (AID). The administrative
judge found that the appellant was eligible for attorney fees because he was the
prevailing party in the case and an attorney-client relationship existed. AID
at 4-6. However, despite the appellant’s eligibility for attorney fees, the
administrative judge found that he was not entitled to them because a fee award
was not warranted in the interest of justice. AID at 6-7. Specifically, he found
that the appellant enjoyed a minimal level of success because he had not been
reinstated to his former position or any other position, and he had not received
back pay. AID at 7.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis. Petition for Review (PFR) File, Tab 1. The agency has filed a
reply to the petition for review, and the appellant has filed a reply to the agency’s
response. PFR File, Tabs 3, 4.
ANALYSIS
To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701(g)(1), an appellant must show that (1) he was the prevailing party; (2) he
incurred attorney fees pursuant to an existing attorney-client relationship; (3) an
award of fees is warranted in the interest of justice; and (4) the amount of fees
claimed is reasonable. Hart v. Department of Transportation , 115 M.S.P.R. 10,
¶ 13 (2010). In this case, the administrative judge found that the appellant was
the prevailing party in the appeal and that he incurred attorney fees pursuant to an
existing attorney-client relationship. AID at 4-6. The agency does not challenge
these findings, and for the reasons explained in the addendum initial decision, we
agree. Therefore, the only issues in this appeal are whether attorney fees are
warranted in the interest of justice, and if so, whether the amount of fees claimed
is reasonable.3
An attorney fee award by the Board may be warranted in the interest of
justice when, e.g.: (1) the agency engaged in a prohibited personnel practice;
(2) the agency action was clearly without merit or wholly unfounded, or the
employee was substantially innocent of the charges; (3) the agency initiated the
action in bad faith; (4) the agency committed a gross procedural error; or (5) the
agency knew or should have known that it would not prevail on the merits.
Allen v. U.S. Postal Service , 2 M.S.P.R. 420, 434 -35 (1980). In this case, the
administrative judge found that attorney fees were not warranted in the interest of
justice because the appellant’s “minimal ‘degree of success’ shows he is not
entitled to the payment of fees for the work performed by his counsel following
the court’s remand decision.” AID at 6. We disagree. An appellant’s “degree of
success” as such is not a consideration in whether fees are warranted in the
interest of justice under Allen.2 Rather, it is a factor to consider in determining
whether the amount of fees claimed is reasonable; a limited degree of success
may warrant a downward adjustment in fees awarded. Driscoll v. U.S. Postal
Service, 116 M.S.P.R. 662, ¶ 24 (2011). In reaching his finding on this issue, the
administrative judge relied on Farrar v. Hobby , 506 U.S. 103 (1992), Southerland
v. Department of Defense , 122 M.S.P.R. 51, 58 ¶ 14 (2014), and Arnold v.
Department of the Air Force , 94 M.S.P.R. 17, ¶ 19 (2003). However, in Farrar,
the Court observed that “the degree of the plaintiff’s overall success goes to the
reasonableness” of a fee award. 506 U.S. at 114 (quoting Texas State Teachers
Association v. Garland Independent School District , 489 U.S. 782, 793 (1989)).
The Court found that the petitioners’ limited degree of success warranted an
2 We acknowledge that the Federal Circuit has held that “the extent of a party’s victory”
is relevant to whether fees may be warranted in the interest of justice. Sterner v.
Department of the Army , 711 F.2d 1563, 1567-68 (Fed. Cir. 1983). However, in so
holding, the court presumed that the degree of success would reflect “the magnitude of
the injustice done the employee.” Id. at 1568. Under the facts of this case, however,
the appellant’s allegedly limited success was largely a product of his subsequent
disability retirement. This was an intervening event wholly unrelated to the appellant’s
removal, and we find that it bears no relation to the magnitude of the injustice done him
by the action under appeal as contemplated in the five enumerated Allen factors.4
adjustment of the fees claimed down to $0, but it did not find that the degree of
success affected whether fees were warranted in the interest of justice. Id.
at 115-16. Likewise, in neither Southerland nor Arnold did the Board state that
the appellants’ limited degree of success pertained to whether fees were
warranted in the interest of justice. Rather, the Board followed Farrar and
considered the appellants’ limited degree of success in “exercis[ing] our
discretion under civil-service law to determine whether the attorney fees claimed
[were] reasonable.” Arnold, 94 M.S.P.R. 17, ¶ 21; see Southerland, 122 M.S.P.R.
51, ¶ 14.
Applying the Allen factors to the facts of this appeal, we find that fees are
warranted in the interest of justice under the fourth category, namely that the
appellant was substantially innocent of the charges. The agency removed the
appellant based on five specifications of abuse of authority and two specifications
of lack of candor. IAF, Tab 3 at 11-13. However, on appeal, the agency only
proved a single specification of its abuse of authority charge, pertaining to a
single occasion in which the appellant had a subordinate drive him on a personal
errand in a government-owned vehicle. RID at 2. Notably, the appellant
admitted to this specification at the predecisional stage and indicated his
willingness to accept a reasonable penalty for it. IAF, Tab 3 at 22. Had the
deciding official based his decision on this specification alone, the years of
litigation in this appeal could likely have been avoided altogether.3 Furthermore,
in our view, the sustained specification is among the least serious of all the
specifications underlying the removal action, particularly when compared to the
specifications underlying the lack of candor charge. Id. at 54-55; see Friedrick v.
3 This is particularly so if the deciding official had properly considered the appellant’s
length of service in his penalty determination. The deciding official’s Douglas factor
review sheet merely indicated that the appellant had “been employed with the Hampton
[Veterans Administration Medical Center] since August 2010.” IAF, Tab 3 at 16. It did
not account for the appellant’s previous 10 years of service with the agency or for the
appellant’s prior uniformed service. The Board’s reliance on this document in its own
penalty analysis was the source of the error that the Federal Circuit identified in its
remand order. Tartaglia, 858 F.3d at 1409. 5
Department of Justice , 52 M.S.P.R. 126, 135 (1991) (finding lack of candor to be
serious misconduct for a law enforcement officer) , aff’d, 980 F.2d 742 (Fed. Cir.
1992) (Table). This assessment was shared by the Federal Circuit, which
described the proven misconduct as “relatively minor.” Tartaglia, 858 F.3d
at 1410. An employee is substantially innocent of the charges against him, for
attorney fee purposes, if he is innocent of the primary or major charges, or of the
more important and greater part of the original charges. Lambert v. Department
of the Air Force , 34 M.S.P.R. 501, 503 (1987) (quoting Boese v. Department of
the Air Force, 784 F.2d 388, 391 (Fed. Cir. 1986)). This standard has clearly
been met in this case because the agency has only been able to prove one of the
seven specifications underlying its removal action, and a relatively minor one at
that. See Ceja v. Defense Logistics Agency , 34 M.S.P.R. 399, 403 (1987);
Thomson v. Department of the Navy , 33 M.S.P.R. 106, 111-12 (1987). Having
found that the appellant was the prevailing party, he incurred attorney fees during
the proceedings, and an award of attorney fees is warranted in the interest of
justice, the only thing left for us is to arrive at a reasonable figure.
The most useful starting point for determining the amount of a reasonable
fee award is the number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate. Hensley v. Eckerhart , 461 U.S. 424, 433 (1983).
The party seeking an award of fees should submit evidence supporting the hours
worked and rates claimed. Id. In this case, the appellant is claiming total fees of
$4,640.00. AFF, Tab 5 at 10. This amount is based on 10 hours of work
performed by the appellant’s attorney and 1.4 hours of work performed by the
attorney’s paralegal related to the remand proceedings and motion for attorney
fees.4 AFF, Tab 1 at 19-22, Tab 3 at 8-9, Tab 5 at 7, 10, 14-15; see LaMorge v.
Department of Agriculture , 6 M.S.P.R. 137, 139-40 (1981) (finding that attorney
fees may be recovered for time an attorney spent on a motion for attorney fees).
4 Notably, the attorney fees petition does not include fees related to the appellant’s
unsuccessful petition for enforcement. 6
The agency questioned two of the entries on the attorney’s billing
statements, one for 1.1 hours of “rev agency response to our PFR” and one for
1.2 hours of “conf call w/judge; pre and post discussion w/ client.” AFF, Tab 1
at 21, Tab 3 at 9, Tab 4 at 5-6. In response to the agency’s concerns, the
appellant’s attorney deducted .7 hours of reviewing the agency response,
attributing that claimed time to a billing error, but he maintained that the
remaining .4 hours was correct and reasonable because he used that time to
reacquaint himself with the facts of the case. AFF, Tab 5 at 7, 14, 15. We accept
this explanation and find that the remaining .4 hours was time reasonably spent.
See Shoemaker v. Department of Health and Human Services , 21 M.S.P.R. 14, 17
(1984) (allowing 4 hours as reasonably spent by counsel to acquaint himself with
the facts of the case). Regarding the other item, the appellant’s attorney stands
by the entire 1.2 hours billed. He argues that, although the conference call itself
only took a few minutes, the remainder of the time accounts for a significant
meeting with his client. Id. at 7. We also accept this explanation, which is
consistent with the notation on the billing records, and we find that this was time
reasonably spent. AFF, Tab 1 at 21; see Hooks v. U.S. Postal Service ,
42 M.S.P.R. 225, 228-29 (1989) (finding that, because an attorney is obligated to
keep his client informed of the status of the client’s case, reasonable hours
expended discussing the case are compensable in an award of attorney fees). The
agency does not specifically challenge any of the remaining entries, and our
review of the record reveals no apparent discrepancies or any other reason to
believe that the hours claimed are excessive. We also find that a total of 10 hours
of attorney time and 1.4 hours of paralegal time is facially consistent with what
might be expected based on the pleadings filed in the remand and attorney fee
proceedings. We therefore allow all of the claimed hours.
Regarding the charged rate, the attorney billed his own time at $450 per
hour and the paralegal’s time at $100 per hour. AFF, Tab 1 at 15, 17. The
agency does not challenge the paralegal rate, and we find that it is consistent with7
the applicable fee agreement and is otherwise reasonable on its face. AFF, Tab 3
at 7; see Goeke v. Department of Justice , MSPB Docket No. CB-0752-15-0228-
A-1, Tab 1, Final Order (Aug. 12, 2016) (ordering fees at a paralegal rate of $145
per hour). The agency does, however, challenge the $450 per hour attorney rate
as excessive because it exceeds the $400 per hour rate specified in the fee
agreement. AFF, Tab 3 at 7, Tab 4 at 5. It is well settled that an hourly rate set
forth in a fee agreement creates a rebuttable presumption that that amount
represents the maximum reasonable fee which may be awarded. Ceja,
34 M.S.P.R. at 404. However, as the appellant points out, the fee agreement goes
on to say that the attorney’s hourly rate is subject to change, and the fee
agreement was executed more than 4 years before the proceedings at issue here.
AFF, Tab 3 at 7, Tab 5 at 6. We find nothing improbable about the attorney’s
hourly rate increasing by $50 during that time, and we see no reason to doubt the
authenticity of the billing statements that reflect a $450 per hour rate or the truth
of the attorney’s affidavit that this is now his customary billing rate. AFF, Tab 1
at 9, 17, 20-21. Considering the attorney’s experience and expertise in Federal
personnel law, previous Board decisions finding the same rate as reasonable for
other attorneys, and the lack of any evidence that the $450 per hour billing rate is
based on anything other than market considerations, we find that the rate was
reasonable. See, e.g., Gray v. Department of Defense , CH-0752-12-0050-A-1,
Final Order, ¶ 8 (Feb. 25, 2015) (applying a $510 per hour rate for the work of a
Washington, D.C. attorney between 2011 and 2014); Kilpatrick v. Department of
Veterans Affairs , MSPB Docket No. CB-7121-13-0181-A-1, Final Order, ¶ 14
(Jan. 16, 2015) (finding $450 per hour to be a reasonable rate for an experienced
Philadelphia attorney between 2009 and 2014). Because we find no reason to
disallow the claimed billing rate or exclude any claimed hours from the lodestar
calculation, we find that the appellant’s total claimed fees of $4,640.00 represents
an appropriate starting point.8
The next step is to determine whether the lodestar should be adjusted
upward or downward based on other considerations, including the crucial factor
of the “results obtained.” Driscoll, 116 M.S.P.R. 662, ¶ 10; see Hensley,
461 U.S. at 434. In determining what adjustment, if any, is appropriate, the
Board will weigh the significance of the relief obtained against the relief sought.
Driscoll, 116 M.S.P.R. 662, ¶ 27; Smit v. Department of the Treasury ,
61 M.S.P.R. 612, 617 (1994). In this case, we find that the results that the
appellant obtained were exactly the results he sought. As noted above, even
during the predecisional phase, the appellant was seeking a lesser penalty rather
than no penalty at all. IAF, Tab 3 at 22. Indeed, the appellant even requested
before the Federal Circuit that the court reverse the removal and substitute a
30-day suspension, which was precisely the relief that he ultimately received.
Tartaglia, 858 F.3d at 1409. Apart from his petition for enforcement, which is
not encompassed in the instant attorney fee petition, the appellant has raised no
unsuccessful claim whatsoever during the entire course of these proceedings.
Considering that a 30-day suspension is significantly less harsh than a removal
and that the appellant was seeking exactly this same mitigation during the entire
course of the proceedings at issue, we find no basis to make a downward
adjustment to the lodestar.
In this regard, we disagree with the administrative judge that the
appellant’s failure to obtain reinstatement and back pay reflects a limited degree
of success on the merits of his appeal. AID at 7. The instant appeal is
distinguishable from Southerland and Arnold. The appellants in those cases
failed to obtain reinstatement and back pay because the Board affirmed their
removals on appeal. Southerland, 122 M.S.P.R. 51, ¶¶ 3, 14; Arnold, 94 M.S.P.R.
17, ¶¶ 8, 25. In this case, the appellant’s failure to obtain reinstatement and back
pay was due to his subsequent disability retirement and not to lack of success in
litigation. The law does not support a downward adjustment to the lodestar figure9
based on the practical consequences of life events that have no legal effect on the
outcome of the appeal.
For these reasons, we grant the appellant’s motion for attorney fees in the
full amount requested.
ORDER
We ORDER the agency to pay the attorney of record $4,640.00 in fees.
The agency must complete this action no later than 20 days after the date of this
decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C.
§ 1204(a)(2)).
We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the attorney to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant or the attorney
that it has fully carried out the Board’s Order, the appellant or the attorney may
file a petition for enforcement with the office that issued the initial decision on
this appeal, if the appellant or the attorney believes that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the12
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of13
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Tartaglia_Mark_J_DC-0752-14-1108-A-1__Final_Order.pdf | 2024-07-08 | MARK J. TARTAGLIA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0752-14-1108-A-1, July 8, 2024 | DC-0752-14-1108-A-1 | NP |
1,041 | https://www.mspb.gov/decisions/nonprecedential/Phan_TomSF-1221-20-0119-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TOM PHAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-20-0119-W-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shirley A. de Best , Esquire, Salem, Oregon, for the appellant.
Eric LaZare , San Diego, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as untimely filed without
good cause shown . On review, the appellant argues that he was confused
regarding the process and believed that he could not file a Board appeal following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the termination of the Office of Special Counsel (OSC) of its inquiry into his
claim of reprisal for whistleblowing because he had filed an equal employment
opportunity complaint. Petition for Review File, Tab 1 at 3-5. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to apply the doctrine of equitable tolling instead of good
cause to determine whether the appellant’s untimely filing should be excused, we
AFFIRM the initial decision.
In her initial decision, the administrative judge found that the appellant’s
appeal was filed over 30 days after the deadline date and that the appellant had
not shown good cause for the untimely filing. Initial Appeal File (IAF), Tab 14,
Initial Decision (ID).2 As explained below, this matter should have been analyzed
using the equitable tolling doctrine as opposed to the good cause standard.
2 The administrative judge miscalculated the appellant’s deadline to file his IRA appeal
as October 25, 2019. ID at 3. The appellant’s deadline to file his IRA appeal was
October 24, 2019, i.e., 65 days from the date of the close out letter, August 20, 2019.
IAF, Tab 1 at 32. Due to this miscalculation, the administrative judge erred in stating
that the appellant was 31 days late in filing his IRA appeal. ID at 3. In actuality, the
appellant was 32 days late in filing his IRA appeal. IAF, Tab 1. However, because the
error in calculation has no impact on the analysis of this appeal, there is no need to
modify the Initial Decision to correct this error. 2
Under 5 U.S.C. § 1214(a)(3)(A)(ii), once OSC closes its investigation into
a complaint of whistleblower retaliation, an appellant may file an IRA appeal
with the Board within 60 days. Under the Board’s regulations implementing that
statutory time limit, an IRA appeal must be filed no later than 65 days after the
day that OSC issues its close-out letter, or, if the letter is received more than
5 days after issuance, within 60 days of the date of receipt.3 5 C.F.R. § 1209.5(a)
(1). Notwithstanding the implementing provisions of 5 C.F.R. § 1209.5(a), the
filing period of an IRA appeal is statutory—not regulatory. 5 U.S.C. § 1214(a)(3)
(A)(ii); Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 9 (2014).
Unlike the Board’s regulatory time limits for appeals filed under 5 U.S.C. § 7701,
the statutory time limit for filing an IRA appeal cannot be waived for good cause
shown because there is no statutory mechanism for doing so. Heimberger,
121 M.S.P.R. 10, ¶ 9.
However, a statutory filing deadline might be subject to equitable tolling,
under which the filing period is suspended for equitable reasons, such as when the
appellant has been induced or tricked by his adversary’s misconduct into allowing
the deadline to pass or where he filed a defective pleading during the statutory
period. Wood v. Department of the Air Force , 54 M.S.P.R. 587, 593 (1992).
Equitable tolling does not extend to mere excusable neglect. Id. It is a rare
remedy that is to be applied in unusual circumstances and generally requires a
showing that the appellant has been pursuing his rights diligently and some
extraordinary circumstances stood in his way. Heimberger, 121 M.S.P.R. 10,
¶ 10.
For the same reasons the administrative judge found that the appellant did
not establish that good cause existed for his delay, the appellant does not
establish that equitable tolling of the deadline is appropriate. ID at 3-6. As the
standard for finding good cause is lower (easier to meet) than the standard for
3 The 65-day time limit to file an IRA appeal set forth in the Board’s regulations allows
for 5 days for the appellant to receive OSC’s notice that it is closing its inquiry. 3
finding equitable tolling, there is no reason to disturb the administrative judge’s
findings, absent to modify the final order to apply the equitable tolling doctrine.
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that
adjudicatory error that is not prejudicial to a party’s substantive rights does not
provide a basis for reversal).
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Phan_TomSF-1221-20-0119-W-1__Final_Order.pdf | 2024-07-08 | TOM PHAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-20-0119-W-1, July 8, 2024 | SF-1221-20-0119-W-1 | NP |
1,042 | https://www.mspb.gov/decisions/nonprecedential/Hilton_AnthonyAT-0752-20-0053-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY HILTON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-20-0053-I-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kharimah R. Dessow , Esquire, Sumter, South Carolina, for the appellant.
Brandon L. Truman , Esquire, and Roderick Eves , Saint Louis, Missouri, for
the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed without good cause shown.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
In a decision letter dated August 20, 2019, the agency informed the
appellant that he was being removed from his position as a clerk effective
August 30, 2019, for failure to be regular in attendance and failure to follow
instructions. Initial Appeal File (IAF), Tab 8 at 8-11. The decision letter notified
the appellant of his right to appeal the decision to the Board within 30 days of the
effective date of the decision. Id. at 10. The appellant, through his attorney
representative, appealed his removal to the Board on October 15, 2019, and he
requested a hearing. IAF, Tab 1. Thereafter, the agency filed a motion to dismiss
the matter and to stay the production of the agency file, contending that the
appeal was untimely filed. IAF, Tab 8 at 4-6. With its motion, the agency
provided U.S. Postal Service tracking slips suggesting that the appellant received
the agency’s decision letter on August 23, 2019. Id. at 13-14.
The administrative judge informed the appellant of his burden regarding
timeliness and ordered him to file evidence and argument regarding the same.
IAF, Tab 11 at 1-5. In response, the appellant, through his attorney2
representative, acknowledged that his appeal was untimely; however, he asserted
in general terms that the untimeliness was due to circumstances beyond his
control, i.e., his attorney’s failure to timely file on his behalf. IAF, Tab 12 at 4-5.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal as untimely filed. IAF, Tab 13,
Initial Decision (ID) at 1, 5. In so doing, the administrative judge found that the
appellant had not disputed that he had received the decision letter on August 23,
2019, and thus his appeal, filed on October 15, 2019, was 14 days late. ID at 2-3.
She further found that the appellant failed to show good cause for the filing delay.
ID at 3-5. To this end, she concluded that the agency’s decision letter clearly
stated that the appellant needed to file with the Board within 30 days of the
effective date of his removal and that the mere assertion that his attorney failed to
timely file his appeal, without more, did not justify waiver of the time limit. ID
at 4.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. In his petition for review,
the appellant, through his attorney representative, avers that his diligent efforts to
pursue his appeal were thwarted by his attorney and his attorney’s paralegal. PFR
File, Tab 1 at 4-6.
DISCUSSION OF ARGUMENTS ON REVIEW
An appeal that is not filed within the applicable time limit will be
dismissed as untimely unless the appellant shows good cause for the delay.
5 C.F.R. § 1201.22(c); see Walls v. Merit Systems Protection Board , 29 F.3d
1578, 1581 (Fed. Cir. 1994 ). To establish good cause for an untimely filing, the
appellant must show that he exercised due diligence or ordinary prudence under
the particular circumstances of the case. Alonzo v. Department of the Air Force ,
4 M.S.P.R. 180, 184 (1980). To determine if an appellant has shown good cause,
the Board will consider the length of the delay, the reasonableness of his excuse3
and his showing of due diligence, whether he is proceeding pro se, and whether
he has presented evidence of the existence of circumstances beyond his control
that affected his ability to comply with the time limits or of unavoidable casualty
or misfortune that similarly shows a causal relationship to his inability to timely
file his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Here, the appellant has not challenged, and we discern no reason to disturb,
the administrative judge’s conclusion that the appellant’s appeal was untimely
filed by 14 days. ID at 2-3; see 5 C.F.R. § 1201.22(b)(1). Instead, he reasserts
that his untimeliness was the result of his attorney’s negligence. PFR File, Tab 1
at 5. We find this contention unavailing. As set forth in the initial decision, the
Board has routinely held that appellants are responsible for the actions and
inactions of their chosen representatives. ID at 4; see, e.g., Sparks v. U.S. Postal
Service, 32 M.S.P.R. 422, 425 (1987). Indeed, an appellant has a personal duty to
monitor the progress of his appeal and not leave the matter entirely to his
attorney.2 See Miller v. Department of Homeland Security , 110 M.S.P.R. 258,
¶ 12 (2008).
The appellant also asserts, for the first time, that his attorney’s paralegal
neglected to file his appeal as instructed by his attorney. PFR File, Tab 1 at 5.
To this end, he avers that “the deliberate actions of [his] attorney’s paralegal rise
to the level of negligence such that the regulatory filing should be waived.” Id.
at 4. We find these assertions unavailing. The Board generally will not consider
an argument raised for the first time in a petition for review absent a showing that
2 The appellant asserted before the administrative judge that he had started “the process
of applying for medical retirement disability,” IAF, Tab 1 at 6, and he provided
documents regarding his medical conditions and his applications for disability benefits
associated therewith, id. at 7-27. The administrative judge explained that, if illness had
prevented the appellant from timely filing his appeal, then he must provide the Board
with additional information. IAF, Tab 11 at 3-4. The appellant did not provide any
such additional information or argument. Thus, we find that the appellant has failed to
demonstrate good cause for his untimely filing on the basis of illness, or mental or
physical capacity. See Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 (1998 ).4
it is based on new and material evidence not previously available despite the
party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980). Here, following the administrative judge’s order regarding timeliness,
IAF, Tab 11 at 1-5, the appellant indicated only that his attorney had failed to
timely “file a reply,” IAF, Tab 12 at 5. The appellant provided sparse detail
regarding this failure; indeed, he made no mention of his attorney’s paralegal. Id.
at 4-5.
Moreover, even considering the appellant’s arguments regarding his
attorney’s paralegal on review, a different outcome is not warranted. To the
extent the appellant asserts that the paralegal’s failure to timely file his Board
appeal was a clerical error, PFR File, Tab 1 at 5, his assertion is unavailing, see
Moore v. Department of the Treasury , 41 M.S.P.R. 35, 37 (1989) (explaining that
clerical errors by an attorney’s support staff do not constitute good cause for an
untimely filing). To the extent he alleges that his diligent efforts to prosecute his
appeal were thwarted by deception and negligence on part of his attorney and/or
her paralegal, PFR File, Tab 1 at 4-5, his contentions are similarly unavailing.
Although the Board recognizes a limited exception to the well-settled rule that an
appellant should be held responsible for the actions and inactions of his
representative when an appellant has proven that his diligent efforts to prosecute
his appeal were thwarted by his representative’s deception and negligence, Miller,
110 M.S.P.R. 258, ¶ 11, here, there is no indication that either the appellant or his
attorney followed up to ensure that the appeal was actually filed until 14 days
after the time limit, PFR File, Tab 1 at 4-5. The appellant avers only that he “was
reassured that he would be able to meet the filing deadline”; he does not indicate
that he monitored Board filings to ensure that his appeal was actually filed. Id.
Thus, we discern no basis to disturb the administrative judge’s finding that the
appellant has not shown good cause for the filing delay. ID at 3-5; see D’Aquin
v. Office of Personnel Management , 65 M.S.P.R. 499, 505 (1994) (finding that
the appellant failed to show good cause for her delay in filing when she did not5
inquire into the status of her appeal until after the filing deadline had passed); cf.
Dunbar v. Department of the Navy , 43 M.S.P.R. 640, 643-45 (1990) (finding that
the appellant was not bound by his attorney’s actions when the appellant
diligently monitored the progress of his appeal and was misinformed by his
attorney that his appeal had been filed).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Hilton_AnthonyAT-0752-20-0053-I-1__Final_Order.pdf | 2024-07-08 | ANTHONY HILTON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-20-0053-I-1, July 8, 2024 | AT-0752-20-0053-I-1 | NP |
1,043 | https://www.mspb.gov/decisions/nonprecedential/Lewis_Richard_H_DC-0841-20-0473-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD HOWARD LEWIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0841-20-0473-I-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard Howard Lewis , Fayetteville, North Carolina, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appellant’s appeal challenging a reconsideration decision of the
Office of Personnel Management (OPM) to collect an overpayment of Federal
Employees’ Retirement System (FERS) annuity payments after OPM rescinded its
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reconsideration decision. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant argues that OPM continued to withhold funds
from his June 1, 2020 annuity payment to recover an overpayment even though it
claimed it had rescinded its reconsideration decision and would suspend
collection of the overpayment. Petition for Review (PFR) File, Tab 1 at 4, 6. In
response, OPM admitted to “prematurely” collecting the overpayment, stated that
it had ceased its collection efforts, and asserted that the amount erroneously
withheld from the appellant’s annuity would be refunded as part of his July 2020
annuity payment. PFR File, Tab 4 at 4. In response to an August 11, 2020 show
cause order, the appellant confirmed that OPM had refunded him the amount
erroneously withheld. PFR File, Tab 7 at 4, 6. Thus, because OPM has rescinded
its reconsideration decision and collection efforts have been suspended, we agree
with the administrative judge that the Board lacks jurisdiction over this appeal.2
2 On review, the appellant asserts that the Board should consider the “broad fact” that
OPM has been improperly collecting on a disputed debt for years. PFR File, Tab 1
at 4-5, Tab 7 at 4. While OPM has clearly had issues with the calculation of the
appellant’s annuity since at least 2013, the record shows that OPM has rescinded its2
See Glasgow v. Office of Personnel Management , 103 M.S.P.R. 531, ¶ 5 (2006)
(stating that if OPM completely rescinds a reconsideration decision, the Board no
longer retains jurisdiction over the appeal in which that reconsideration decision
was at issue, and the appeal must be dismissed).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
reconsideration decision and has suspended collection of any overpayment. Thus, as
noted, there is no basis for the Board to exercise jurisdiction over the appellant’s
contentions. See Schmittling v. Department of the Army , 219 F.3d 1332, 1337 (Fed. Cir.
2000) (stating that if the Board lacks jurisdiction, then it lacks the authority to decide
the issues presented in the case). If OPM issues a reconsideration decision affecting the
appellant’s rights or interests under FERS, he will again be able to appeal OPM’s
reconsideration decision to the Board. See 5 U.S.C. § 8461(e)(1); Okello v. Office of
Personnel Management , 120 M.S.P.R. 498, ¶ ¶¶ 13-14 (2014); 5 C.F.R. § 841.308.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Lewis_Richard_H_DC-0841-20-0473-I-1__Final_Order.pdf | 2024-07-08 | RICHARD HOWARD LEWIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0841-20-0473-I-1, July 8, 2024 | DC-0841-20-0473-I-1 | NP |
1,044 | https://www.mspb.gov/decisions/nonprecedential/Smith_TereciaDA-0842-19-0275-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERECIA SMITH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0842-19-0275-I-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Terecia Smith , Allen, Texas, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) to deny
the appellant’s request for annuity benefits under the Federal Employees’
Retirement System (FERS) because she had requested and received a refund of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
her retirement deductions. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The following facts are not in dispute. The appellant was employed by the
Federal Labor Relations Authority from October 28, 1984, through
March 30, 1985, and by the Federal Deposit Insurance Corporation (FDIC) from
March 31, 1985, through March 7, 1986. Initial Appeal File (IAF), Tab 13
at 23-24. She applied for a refund of her retirement deductions on March 2, 1986,
and the refund was authorized on July 31, 1986. Id. at 23, 32-34. The appellant
was then employed by the Department of the Treasury from July 20, 1987,
through November 5, 1987, and another agency from October 21, 1990, through
August 9, 1996. Id. at 20-22. She applied for another refund of her retirement
deductions on August 18, 1997, and the refund was authorized on
October 6, 1997. Id. at 20, 26-31.
The appellant submitted an application for deferred or postponed retirement
on February 21, 2019. Id. at 40-45. OPM issued a final decision on2
March 21, 2019, finding that she was not eligible to receive annuity benefits
under FERS because she requested and received a refund of her retirement
deductions. Id. at 11-12.
The appellant filed a Board appeal challenging OPM’s final decision.
IAF, Tab 1. Because the appellant did not request a hearing, the administrative
judge issued an initial decision based on the written record that affirmed OPM’s
decision. IAF, Tab 23, Initial Decision (ID) at 1, 7. In pertinent part, the
administrative judge found that the appellant’s bare assertion that she did not
receive the refund of her retirement deductions because she had moved, without
corroborating evidence, did not meet her burden to prove non-receipt by
preponderant evidence. ID at 3-4 (citing Rint v. Office of Personnel Management ,
48 M.S.P.R. 69, 72 (1991), aff’d, 950 F.2d 731 (Fed. Cir. 1991)). The
administrative judge also considered the appellant’s assertion that she was not in
a right state of mind when she applied for a refund in 1997 due to workplace
sexual harassment, but she found that the appellant did not prove by preponderant
evidence that she was mentally incompetent. ID at 4-6.
The appellant filed a petition for review of the initial decision. Petition for
Review (PFR) File, Tab 1. She then attempted to submit supplemental
documentation, but the Office of the Clerk of the Board rejected the submission
as an additional pleading and informed her that she may file a reply to any agency
response to the petition for review within 10 days of its date of service. PFR File,
Tab 3. After the agency responded in opposition and the record on review closed,
the appellant filed a reply.2 PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant bears the burden of proving her entitlement to the retirement
benefits she seeks by preponderant evidence. Cheeseman v. Office of Personnel
2 The Office of the Clerk of the Board notified the appellant that, although her reply
was placed into the record, it appeared to be untimely. PFR File, Tab 7. Nonetheless,
we have considered this submission. 3
Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R. § 1201.56(b)(2)
(ii). When, as here, an employee requests and receives a refund of her retirement
contributions, and she has not been reemployed in a covered position, her right to
a retirement annuity is extinguished. Youngblood v. Office of Personnel
Management, 108 M.S.P.R. 278, ¶ 12 (2008).
For the reasons stated in the initial decision, the appellant has failed to
show by preponderant evidence that she is entitled to the FERS annuity that she
seeks. ID at 3-6. Although the appellant asserts that she did not receive a refund
of her retirement deductions for her prior Federal service, OPM’s records show
that she requested and OPM disbursed her refunded retirement deductions, IAF,
Tab 13 at 13-33, and the appellant’s bare assertion of non-receipt is insufficient
to overcome evidence to the contrary and prove non-receipt by preponderant
evidence, ID at 3-4; Rint, 48 M.S.P.R. at 72. The administrative judge properly
found that the appellant’s receipt of a refund of her retirement deductions for her
periods of Federal service voids any entitlement to a FERS annuity based on that
service. ID at 6.
On review, the appellant reiterates her allegations that she was sexually
harassed by one of her coworkers at the FDIC, she was offered a severance
package, and she involuntarily resigned from her position at the FDIC as an
executive legal assistant. PFR File, Tab 1 at 1-2. She explains that she reached
out to equal employment opportunity representatives to obtain information
regarding those claims, but to no avail. Id. at 1. She appears to be alleging that
the administrative judge should have granted her extension request, below, to4
obtain such evidence.3 Id. We have considered these arguments, but none
warrant a different outcome.
An administrative judge has broad discretion to control the proceedings
before her. Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 10
(2010); see 5 C.F.R. § 1201.41(b). In order to obtain reversal of an initial
decision on the ground that the administrative judge abused her discretion in
excluding evidence, the petitioning party must show on review that relevant
evidence, which could have affected the outcome, was disallowed. Sanders,
114 M.S.P.R. 487, ¶ 10. The administrative judge noted during the pendency of
the appeal that the appellant informed her that she expected to receive additional
information regarding her appeal, and she issued an order to extend the close of
record to afford the appellant an opportunity to submit such information.
IAF, Tab 20 at 1. The appellant was unable to obtain the information she sought
by the deadline, and she requested an additional extension of time to submit a
copy of her severance package from the FDIC. IAF, Tab 21 at 2. The
administrative judge denied the appellant’s request for an additional extension of
time because she found that such documentation was not material and relevant to
the issue in this appeal and the appellant did not show good cause for her failure
to timely obtain and submit that information. ID at 3 n.1. It was within the
administrative judge’s discretion to deny the appellant’s request for an additional
extension of time. 5 C.F.R. § 1201.41(b)(8). The appellant has not shown that
the administrative judge committed error in this regard.
To the extent the appellant is alleging that she was entitled to a FERS
annuity based on mental incompetence at the time she requested a refund of her
3 The appellant asserts, for the first time on review, that her delay in meeting the
deadline can be attributed to an unspecified “illness” but that she “will not use it to
justify [her] . . . lateness.” PFR File, Tab 1 at 2. The Board will generally not consider
an argument raised for the first time in a petition for review absent a showing that it is
based on new and material evidence not previously available despite the party’s due
diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). In the
absence of any description of her illness or how her illness affected her ability to meet
the administrative judge’s deadline, the appellant has not made this showing.5
retirement deductions due to the allegedly pervasive sexual harassment she
experienced at the FDIC, PFR File, Tabs 1, 6, the administrative judge considered
this claim in the initial decision, ID at 4-6. The Board and its reviewing court
have considered an exception to the general rule that receipt of a refund of
retirement deductions voids an annuity when the individual was mentally
incompetent at the time she applied for and received a refund. Wadley v. Office
of Personnel Management , 103 M.S.P.R. 227, ¶ 11 (2006) (citing Yarbrough v.
Office of Personnel Management , 770 F.2d 1056, 1060-61 (Fed. Cir. 1985)). This
exception is inapplicable here because, as the administrative judge noted, the
appellant has not provided any medical evidence in support of her assertion of
mental incompetence. ID at 5-6; see Rapp v. Office of Personnel Management ,
483 F.3d 1339, 1341 (Fed. Cir. 2007) (stating that the standard for mental
incompetence is an “inability to handle one’s personal affairs because of either
physical or mental disease or injury”).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 . The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Smith_TereciaDA-0842-19-0275-I-1__Final_Order.pdf | 2024-07-08 | TERECIA SMITH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0842-19-0275-I-1, July 8, 2024 | DA-0842-19-0275-I-1 | NP |
1,045 | https://www.mspb.gov/decisions/nonprecedential/Greer_Roger_E_SF-0842-19-0354-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROGER E. GREER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0842-19-0354-I-1
DATE: July 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Sherri A. McCall , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction the appeal of the reconsideration decision of the
Office of Personnel Management (OPM) denying his request for enhanced
retirement annuity benefits under the Federal Employees’ Retirement System
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(FERS). Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
As properly explained in the initial decision, when OPM completely
rescinds a final decision, its rescission completely divests the Board of
jurisdiction over the appeal in which that decision is at issue and the appeal must
be dismissed. Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 2; see
Frank v. Office of Personnel Management , 113 M.S.P.R. 164, ¶ 7 (2010); see also
Rorick v. Office of Personnel Management , 109 M.S.P.R. 597, ¶ 5 (2008). Here,
the administrative judge dismissed the appeal for lack of jurisdiction based on her
finding that OPM has completely rescinded its final decision. ID at 2-3.
On petition for review, the appellant reasserts his argument that OPM has
not completely rescinded its final decision because he has not received all the
relief to which he would be entitled if the appeal had been adjudicated and he had
prevailed. Petition for Review (PFR) File, Tab 1 at 3-4; IAF, Tab 11 at 2. In
particular, he argues that he has not been granted retirement benefits and he cites
Board case law on mootness. PFR File, Tab 1 at 3-4. However, the
administrative judge did not dismiss the appeal as moot. Instead, she properly2
dismissed the appeal for lack of jurisdiction after OPM’s rescission of its final
decision and stated intention to issue a new one. ID at 2-3; see, e.g., Rorick,
109 M.S.P.R. 597, ¶¶ 5-6. Moreover, she properly noted that, although OPM’s
rescission of a reconsideration decision divests the Board of jurisdiction over an
appeal, it does not necessarily render an appeal moot. ID at 3; see Rorick,
109 M.S.P.R. 597, ¶ 6. Therefore, the appellant’s arguments regarding relief and
mootness are inapposite.
The appellant further argues that OPM rescinded its final decision to cause
undue delay and prejudice to him. PFR File, Tab 1 at 4. This conclusory
allegation of OPM’s bad faith, without more, does not articulate a basis for Board
jurisdiction. In addition, his dispute of OPM’s application of FERS statutes and
regulations concerns the merits of the appeal, which are irrelevant to the
jurisdictional issue before the Board. PFR File, Tab 1 at 3; see, e.g., Sapla v.
Department of the Navy , 118 M.S.P.R. 551, ¶ 7 (2012) (finding that the
appellant’s arguments on the merits of her appeal were not relevant to the
jurisdictional question).
Finally, the appellant’s remaining arguments do not provide a reason to
disturb the initial decision. He challenges the administrative judge’s decisions to
dismiss the appeal without holding the requested hearing, and to stay the
discovery process and OPM’s obligation to produce the agency file. PFR File,
Tab 1 at 1-2; IAF, Tab 10. For the reasons discussed above, we are not persuaded
by the appellant’s claim that such procedures would have provided him with
relevant evidence regarding relief and OPM’s application of FERS statutes and
regulations. PFR File, Tab 1 at 2. Moreover, the appellant has failed to make a
nonfrivolous allegation2 of jurisdiction warranting a hearing. See Edwards v.
Department of the Air Force , 120 M.S.P.R. 307, ¶ 6 (2013) (explaining that an
appellant generally is entitled to a jurisdictional hearing if he makes a
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).3
nonfrivolous allegation of Board jurisdiction over the appeal). Thus, we find that
he has failed to prove that the administrative judge abused her discretion or
committed a procedural error that harmed his substantive rights. See Vaughn v.
Department of the Treasury , 119 M.S.P.R. 605, ¶ 15 (2013) (recognizing that an
administrative judge has broad discretion in ruling on discovery matters and,
absent an abuse of discretion, the Board will not find reversible error in such
rulings); see also Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127
(1981) (finding that an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights).
Accordingly, we affirm the initial decision dismissing this appeal for lack
of jurisdiction. If the appellant is dissatisfied with any subsequent OPM
reconsideration or final decision regarding his request for retirement benefits, he
may appeal that decision to the Board. See 5 U.S.C. § 8461(e)(1); 5 C.F.R.
§ 841.308. Any future appeal must be filed within the time limits set forth in the
Board’s regulations. See 5 C.F.R. § 1201.22(b)(1).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Greer_Roger_E_SF-0842-19-0354-I-1__Final_Order.pdf | 2024-07-08 | ROGER E. GREER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0842-19-0354-I-1, July 8, 2024 | SF-0842-19-0354-I-1 | NP |
1,046 | https://www.mspb.gov/decisions/nonprecedential/Autry_William_T_AT-844E-20-0052-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM T. AUTRY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-20-0052-I-1
DATE: July 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William T. Autry , Laurel Hill, Florida, pro se.
Albert Pete Alston, Jr. , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) that denied his application for disability retirement under the Federal
Employees’ Retirement System (FERS). On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
alleges the following: (1) the administrative judge made erroneous findings of
fact regarding the physicality of his position; (2) the administrative judge failed
to consider that he was on administrative leave prior to his removal; (3) the
agency never offered him an accommodation or a reassignment to a different
position; and (4) the administrative judge should have issued sanctions against
OPM for failing to timely submit its agency file. Petition for Review File, Tab 3
at 5-19. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
We have considered the appellant’s arguments regarding his entitlement to
disability retirement benefits under FERS, but we find that they do not provide a
basis to disturb the administrative judge’s reasoned factual findings or her legal
conclusions therefrom. See Riggsbee v. Office of Personnel Management ,
111 M.S.P.R. 129, ¶ 11 (2009) (explaining that an appellant’s mere disagreement
with the administrative judge’s explained factual findings and legal conclusions
therefrom does not provide a basis to disturb the initial decision). We have also
considered the appellant’s renewed assertion that the Board should issue
sanctions against OPM because, despite being granted two extensions of time by2
the administrative judge, Initial Appeal File (IAF), Tabs 9, 11, 13-14, OPM
nonetheless provided its agency file, IAF, Tabs 17-19, nine days late. However,
insofar as the appellant fails to explain how he was prejudiced by OPM’s
untimely filing, we find that sanctions are not warranted. See Hay v. U.S. Postal
Service, 106 M.S.P.R. 151, ¶ 10 (2007) (explaining that a party is not entitled to
sanctions for the untimely filing of a submission absent a showing of prejudice).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Autry_William_T_AT-844E-20-0052-I-1__Final_Order.pdf | 2024-07-05 | WILLIAM T. AUTRY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-20-0052-I-1, July 5, 2024 | AT-844E-20-0052-I-1 | NP |
1,047 | https://www.mspb.gov/decisions/nonprecedential/Julemiste_CarlosAT-1221-20-0032-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLOS JULEMISTE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-20-0032-W-1
DATE: July 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlos Julemiste , Miami, Florida, for the appellant.
Joved Gonzalez-Rivera , Mayaguez, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the jurisdictional analysis, we AFFIRM the initial decision.
On review, the appellant states that there was a misunderstanding about the
purpose of his complaint, which concerns an alleged prohibited personnel practice
under 5 U.S.C. § 2302(b)(2). Petition for Review File, Tab 1 at 3-4. It appears
that the Office of Special Counsel (OSC) may have misconstrued his complaint as
a claim of whistleblowing reprisal, and that his claim is rather that the selecting
official for a Staff Assistant position violated § 2302(b)(2) and/or (b)(4) when she
contacted his supervisor without his consent. Initial Appeal File (IAF), Tab 6
at 7-10, Tab 7 at 3, Tab 9 at 5. If that is in fact the sole basis of this appeal,
we must dismiss it, as the Board lacks jurisdiction to consider alleged violations
of 5 U.S.C. § 2302(b)(2) or (b)(4) in the absence of an otherwise appealable
action. See Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980), aff’d,
681 F.2d 867, 871-73 (D.C. Cir. 1982) (stating that the prohibited personnel
practices under 5 U.S.C. § 2302(b) are not an independent source of Board
jurisdiction). Moreover, there is no law, rule, or regulation that would grant the
Board authority to review a possible error by OSC in interpreting the appellant’s
complaint. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir.2
1985) (stating that the Board’s authority is limited to those matters over which it
has been given jurisdiction by law, rule, or regulation).
If the appellant’s claim is one of reprisal for whistleblowing, we find that
the appellant did not meet his burden of establishing jurisdiction over his IRA
appeal. To establish jurisdiction over an IRA appeal, an appellant must exhaust
his administrative remedies with OSC and make nonfrivolous allegations2 that
(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or activity was a contributing factor in the agency’s decision to take or
fail to take a personnel action as defined at 5 U.S.C. § 2302(b)(a). Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
Here, the closeout letter and notice of appeal rights issued by OSC indicate
that the appellant—intentionally or not—exhausted his remedies with OSC with
respect to two disclosures: ( 1) disclosing to a union official that his supervisor
had first directed him not to initiate a payment ratification, and then directed him
to initiate it outside the authorized time frame; and (2) disclosing to the agency’s
Office of General Counsel that his supervisor was distributing gift cards and
asking him to make purchases in violation of agency policy.3 IAF, Tab 1 at 7, 10.
The OSC correspondence also identifies two alleged retaliatory actions: (1) the
appellant’s nonselection for a Staff Assistant position, and (2) the creation of a
hostile work environment.4 Id.
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that (1) is
more than conclusory, (2) is plausible on its face, and (3) is material to the legal issues
in the appeal. Id.
3 While the appellant did allege that he engaged in these communications, it is
doubtful that he intended to characterize them as protected disclosures under 5 U.S.C.
§ 2302(b)(8).
4 Under the circumstances of this case, we need not decide whether appellant
nonfrivolously alleged that the disclosures were protected under 5 U.S.C. § 2302(b)(8),
or whether the alleged hostile work environment constituted a “personnel action” as3
Under the statute governing IRA appeals, an employee may demonstrate
that a disclosure or protected activity was a contributing factor in the contested
personnel action through circumstantial evidence, such as evidence that the
official taking the personnel action knew of the disclosure or protected activity
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or protected activity was a
contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1);
Salerno, 123 M.S.P.R. 230, ¶ 13. The knowledge-timing test is only one way
of establishing contributing factor, and if an appellant fails to satisfy the
knowledge-timing test, other evidence must be considered, such as that pertaining
to the strength or weakness of the agency’s reasons for taking the personnel
action, whether the whistleblowing was personally directed at the responsible
agency officials, and whether those individuals had a desire or motive to retaliate
against the appellant. Dorney v. Department of the Army , 117 M.S.P.R. 480,
¶¶ 14-15 (2012).
Here, the administrative judge found that the appellant did not make a
nonfrivolous allegation that his disclosures were a contributing factor in his
nonselection, because there was no evidence that the selecting official knew of
the appellant’s disclosures. IAF, Tab 13, Initial Decision at 4-5. However, lack
of knowledge is not dispositive of the contributing factor issue. Thus, it was
error for the administrative judge to rely solely on the selecting official’s lack of
knowledge.
Nonetheless, the appellant has not at any point alleged—nonfrivolously or
otherwise—that the disclosures identified by OSC were a contributing factor in
his nonselection or his alleged hostile work environment. Accordingly, we affirm
the administrative judge’s conclusion that the appellant did not establish
jurisdiction. Because we lack jurisdiction over his case, we do not reach the
appellant’s remaining arguments.
defined at 5 U.S.C. § 2302(a)(2)(A).4
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Julemiste_CarlosAT-1221-20-0032-W-1__Final_Order.pdf | 2024-07-05 | CARLOS JULEMISTE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-20-0032-W-1, July 5, 2024 | AT-1221-20-0032-W-1 | NP |
1,048 | https://www.mspb.gov/decisions/nonprecedential/Bamba_Levada_NY-0714-19-0055-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEVADA BAMBA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0714-19-0055-I-1
DATE: July 5, 2024
THIS ORDER IS NONPRECEDENTIAL1
James E. Carney , Buffalo, New York, for the appellant.
Kimberly M. Thrun , Cheektowaga, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained her removal under 38 U.S.C. § 714. For the reasons discussed below,
we GRANT the petition for review, VACATE the initial decision, and REMAND
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the case to the New York Field Office for further adjudication in accordance with
this Remand Order .
BACKGROUND
¶2On November 7, 2018, the agency issued a notice proposing to remove the
appellant from her WG-2 Housekeeping Aid position with the Environmental
Medical Service (EMS) of the agency’s Western New York Healthcare System
(VAMC) in Buffalo, New York, pursuant to 38 U.S.C. § 714, the Department of
Veterans Affairs Accountability and Whistleblower Protection Act of 2017, Pub.
L. No. 115-41, 131 Stat. 362, which was enacted on June 23, 2017. Initial Appeal
File (IAF), Tab 11 at 26-28. The proposed removal was based on three charges:
(1) excessive absence (one specification); (2) absence without leave (AWOL)
(three specifications); and (3) failure to follow orders (two specifications). Id.
at 26.
¶3In support of the excessive absence charge, the agency stated that, as of
November 7, 2018, the appellant had been continuously absent from work for
402 days.2 Id. The agency further stated that: the appellant’s absence was for a
compelling reason beyond her control such that the agency’s approval or
disapproval was immaterial; the appellant’s absence had continued for an
unreasonable amount of time, and the agency had warned the appellant in letters
dated October 2 and 16, 2018, that it might initiate an adverse action unless she
became available for duty; and the appellant’s position needed to be filled by an
employee available for duty on a regular, full-time basis. Id.
2 The appellant’s absence began on September 26, 2017. Hearing Transcript (HT) at 14
(testimony of the VAMC’s Human Resources Officer (HRO)); IAF, Tab 11 at 34, 38.
At that time, the appellant was on detail to the agency’s Veterans Service Center (VSC)
as an interim accommodation for her disabilities. HT at 17-18 (testimony of the HRO).2
¶4The three specifications of the AWOL charge stated, respectively, that the
appellant was AWOL from November 17,3 2017, to January 19, 2018; from
April 30 to August 6, 2018; and from August 8 to September 14, 2018. Id.
¶5The first specification of the charge of failure to follow orders stated that, in
a letter dated October 2, 2018, the agency directed the appellant to report to duty
by October 15, 2018; however, she did not do so. Id. The second specification of
the charge stated that the appellant did not report to duty by October 29, 2018, as
directed in a letter dated October 16, 2018. Id.
¶6The appellant submitted a written reply to the proposal notice. IAF, Tab 11
at 22-23. On November 28, 2018, the agency issued a decision sustaining all the
charges and specifications, and removing the appellant from her position effective
November 30, 2018. Id. at 15, 17-20.
¶7The appellant filed a Board appeal challenging her removal. IAF, Tab 1.
She raised affirmative defenses of disability discrimination based on failure to
accommodate, hostile work environment, retaliation for protected EEO activity,
and harmful procedural error. IAF, Tabs 13, 40. After a hearing, the
administrative judge issued an initial decision sustaining the appellant’s removal.
IAF, Tab 43, Initial Decision (ID) at 1, 24. The administrative judge found that
the agency proved all three charges and their specifications by substantial
evidence, ID at 4-13, and that the appellant did not prove her affirmative
defenses, ID at 13-23.
¶8The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition for
review. PFR File, Tab 3.
3 During his hearing testimony, the HRO explained that the absence at issue in the first
specification of the AWOL charge began on November 27, 2017, not November 17,
2017, as stated in the proposal notice. HT at 26-27 (testimony of the HRO); IAF,
Tab 11 at 26.3
ANALYSIS
The charges
Excessive absence
¶9As a general rule, an agency may not take an adverse action based on an
employee’s use of approved leave. Coombs v. Social Security Administration ,
91 M.S.P.R. 148, ¶ 12 (2002) . However, an exception may exist when the
following criteria are met: (1) the employee was absent for compelling reasons
beyond her control so that agency approval or disapproval of leave was
immaterial because she could not be on the job; (2) the absences continued
beyond a reasonable time, and the agency warned the employee that an adverse
action could be taken unless she became available for duty on a regular full-time
or part-time basis; and (3) the agency showed that the position needed to be filled
by an employee available for duty on a regular, full-time or part-time basis. Cook
v. Department of the Army , 18 M.S.P.R. 610, 611-12 (1984). The administrative
judge found that all three of these criteria had been met, and she sustained the
charge. ID at 5-8.
¶10The appellant does not directly contest the administrative judge’s findings
on review. However, for the following reasons, we vacate the administrative
judge’s findings on this charge and remand for further proceedings. As the
agency stated in its notice of proposed removal, the first time that it warned the
appellant that she could be disciplined for excessive approved absences was in its
October 2, 2018 letter. IAF, Tab 11 at 26, 38. In the absence of any evidence of
when the appellant actually received this letter, we find that it was delivered to
her on October 8, 2018.4 Because the appellant was not informed of the
possibility of discipline for approved leave until October 8, 2018, the leave that
she took on or before that date cannot be used to support the charge. See
4 Under Board law, documents placed in the mail are presumed to be received in 5 days,
absent evidence to the contrary. Williamson v. U.S. Postal Service , 106 M.S.P.R. 502,
¶ 7 (2007); see 5 C.F.R. § 1201.4(l). Because October 7, 2018 was a Sunday, we find
that the appellant received this letter the following day.4
Williams v. Department of Commerce , 2024 MSPB 8, ¶¶ 6-8. Therefore, the only
period of time properly encompassed in the excessive absence charge was
October 9, 2018, through November 7, 2018, which was a total of 22 workdays.
If it is necessary for her to reach the issue remand, the administrative judge shall
determine whether this period of absence was sufficient to prove the excessive
absence charge. She may adopt her previous findings on the remaining Cook
criteria as appropriate.
Absence Without Leave
¶11To prove an AWOL charge, an agency must demonstrate that the employee
was absent without authorization and, if the employee requested leave, that the
request was properly denied. Savage v. Department of the Army , 122 M.S.P.R.
612, ¶ 28 n.5 (2015), overruled on other grounds by Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 23-25.
¶12The administrative judge found that the appellant was absent from work on
the dates charged, and she further found that the agency proved by substantial
evidence that the appellant’s absences were not authorized. ID at 10; IAF, Tab 11
at 44-59. In analyzing this charge, the administrative judge also considered the
appellant’s argument that the agency should have approved her absences, and
noted that the Human Resources Officer (HRO) and the appellant provided
conflicting testimony concerning whether the appellant submitted medical
documentation in support of her absences. ID at 9.
¶13Specifically, the appellant testified that she provided a Veterans Service
Center (VSC) manager with medical documentation in support of her absences for
the time periods at issue in the first two specifications of the charge, and that she
provided the HRO with medical documentation in support of her absences for the
time period at issue in the remaining specification. ID at 10; HT at 61-62
(testimony of the appellant). She further testified that she provided documents to
the HRO multiple times and that he would just give them back to her. ID at 9;
HT at 60 (testimony of the appellant).5
¶14By contrast, during his hearing testimony, as summarized in the initial
decision, the HRO stated that the appellant did not have an excused absence or
documentation to support the absences at issue in the AWOL charge. ID at 8; HT
at 25-26 (testimony of the HRO). In particular, he testified that the appellant’s
absence during the period at issue in the third specification of the AWOL charge
was not supported by medical documentation and, consequently, was not
approved. ID at 9; HT at 25, 28 (testimony of the HRO); IAF, Tab 11 at 56-57.
¶15The HRO also disputed the appellant’s claims that she provided him with
documents several times. He testified that he met with the appellant only three
times and that only one of those meetings involved an exchange of documents.
ID at 9; HT at 9, 33-35 (testimony of the HRO). He further testified that, on that
occasion, the appellant and her union representative gave him a sealed envelope;
however, instead of opening the envelope, he handed it back to them with
instructions to deliver it to the Employee Relations Office, and then escorted the
appellant and her representative to that office. ID at 10; HT at 34-36 (testimony
of the HRO).
¶16Applying the factors for resolving credibility issues set forth in Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987), the administrative judge
credited the HRO’s testimony over the appellant’s testimony. ID at 10-11. The
administrative judge found that the HRO’s testimony was detailed, unequivocal,
internally consistent, consistent with the record, and not inherently improbable.
ID at 11. The administrative judge further found that there is no evidence that the
appellant provided any medical documentation to the VSC manager. Id.
Accordingly, the administrative judge sustained the charge. Id.
¶17On review, the appellant challenges the administrative judge’s finding that
she did not submit any medical documentation to agency management, and she
reiterates her claim that she submitted all documents to a VSC manager .
PFR File, Tab 1 at 3-4. The appellant also argues that the administrative judge
erred in sustaining this charge because Executive Order 5,396 states that, if a6
disabled veteran in the executive branch has no annual or sick leave, the
employing agency must grant that individual leave without pay. Id.; see Exec.
Order No. 5,396 (July 17, 1930).
¶18We do not agree with the appellant’s interpretation of Executive
Order 5,396. That order gives disabled veterans in the executive branch a right to
take annual leave, sick leave, or leave without pay to obtain necessary medical
treatment if the employee gives prior notice and provides appropriate medical
documentation. See Davison v. Department of Veterans Affairs , 115 M.S.P.R.
640, ¶ 8 (2011). Consequently, the appellant did not have the right to take leave
pursuant to Executive Order 5,396 unless she provided the agency prior notice
and appropriate medical documentation to support her absence.
¶19As previously discussed, based on her explained credibility determinations,
the administrative judge found that the appellant did not provide the agency with
medical documentation to support her absence. ID at 10-11. The Board must
give deference to an administrative judge’s credibility determinations when they
are based explicitly or implicitly on the observation of the demeanor of witnesses
testifying at a hearing. Purifoy v. Department of Veterans Affairs , 838 F.3d 1367,
1372-73 (Fed. Cir. 2016); Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002). Here, the administrative judge implicitly relied on demeanor in
crediting the HRO’s testimony that the appellant did not submit medical
documentation in support of her absences. ID at 10-11. The appellant’s
argument that she submitted such documentation is, in essence, mere
disagreement with the administrative judge’s explained credibility findings and is
unpersuasive. Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions).7
Failure to follow orders
¶20To prove a charge of failure to follow orders, the agency must prove that the
appellant was given proper orders and she failed to follow them, without regard to
whether such failure was intentional or unintentional. Archerda v. Department of
Defense, 121 M.S.P.R. 314, ¶ 16 (2014).
¶21The administrative judge found that it is undisputed that the appellant was
ordered to return to work and did not do so. ID at 12. In determining whether the
agency’s orders were proper, the administrative judge considered the appellant’s
testimony that her doctor disapproved her return to work and that she was
scheduled to return to work on December 14, 2018. ID at 12-13; HT at 62-63
(testimony of the appellant); IAF, Tab 33 at 18 (September 17, 2018 letter from
the appellant’s doctor stating that she remained unable to return to work). The
administrative judge found that the appellant’s claim that she was going to return
to work on December 14, 2018, was not credible, as her doctor’s letter merely
indicated that the appellant was going to be reevaluated on December 14, 2018, to
determine whether she was able to return to duty, not that she was expected to
return to duty that day. ID at 12-13; IAF, Tab 33 at 18.
¶22By contrast, the administrative judge credited the HRO’s testimony that he
intended to provide the appellant an interim accommodation upon her return to
work until a permanent one was found for her. ID at 12; HT at 31 (testimony of
the HRO). The administrative judge found that this testimony was both internally
consistent and consistent with the record, and not inherently improbable. ID at 12
(citing Hillen, 35 M.S.P.R. at 458). The administrative judge further found that
the HRO’s testimony was corroborated by the following statement in both of the
October 2018 letters directing the appellant to return to duty: “If you return to
duty, you will be provided an interim accommodation until a permanent
accommodation becomes available.” ID at 12; IAF, Tab 11 at 34, 38. Based
upon her review of the relevant documentary evidence and the hearing testimony,8
the administrative judge concluded that the appellant was given proper orders but
failed to follow them. ID at 13.
¶23On review, the appellant argues that this charge must not be upheld because
she followed her doctor’s medical orders. PFR File, Tab 1 at 3. This argument is
unpersuasive. The appellant had been absent for more than a year and the orders
were consistent with the agency’s policy of making reasonable attempts to ensure
that such employees return to work. HT at 12 (testimony of the HRO). Given
these circumstances, we agree with the administrative judge that the orders
directing the appellant to return to duty were proper, and that the agency proved
this charge. ID at 13.
Affirmative defenses
¶24The appellant does not specifically challenge the administrative judge’s
finding that she did not prove her affirmative defenses; however, we modify the
analysis of the appellant’s disability discrimination and EEO reprisal affirmative
defenses in the initial decision.5
Disability discrimination
¶25Both a claim of disability discrimination based on an individual’s status as
disabled and a claim based on an agency’s failure to reasonably accommodate
that disability require that the individual be “qualified.” Haas v. Department of
Homeland Security , 2022 MSPB 36, ¶ 28; see 42 U.S.C. § 12112(a), (b)(5)(A) . A
qualified individual with a disability is one who can “perform the essential
functions of the . . . position that such individual holds or desires” with or
without reasonable accommodation. 42 U.S.C. § 12111(8).
¶26The administrative judge found that the appellant did not prove her
disability discrimination claim under either a failure to accommodate or disparate
treatment theory. ID at 17-19. More specifically, the administrative judge
5 We discern no reason to disturb the administrative judge’s finding that the appellant
did not prove her other affirmative defenses, i.e., harmful error and hostile work
environment. ID at 19-20, 22-23.9
rejected the appellant’s argument that the agency rescinded her interim
accommodation “for no good reason,” IAF, Tab 13 at 9, noting that the HRO’s
letters directing the appellant to return to duty explicitly stated that, if she
returned to work, she would be provided an interim accommodation until a
permanent accommodation became available. ID at 18. The administrative judge
found that the appellant did not prove disparate treatment disability
discrimination because, among other things, she did not present any credible
evidence of coworkers who took leave for an extended period but were not
removed. ID at 18-19.
¶27In reaching those findings, the administrative judge determined that the
appellant is an individual with a disability, ID at 16, but did not expressly
determine whether the appellant is a qualified individual with a disability, i.e.,
whether the appellant could perform the essential duties of her position, with or
without a reasonable accommodation. Accordingly, we modify the initial
decision to address that issue.
¶28Here, the record shows that the appellant could not have performed the
essential functions of her position, with or without reasonable accommodation.
The appellant testified that: she has disabilities that render her unable to return to
work; a psychiatrist from the Social Security Administration (SSA) determined
that she is permanently and totally disabled; and she has been granted disability
retirement by SSA. ID at 5; HT at 64, 76, 90-91 (testimony of the appellant).
Based on our review of the record, including the appellant’s own statements, we
conclude that the appellant is not a qualified individual with a disability.
Therefore, the appellant cannot prevail on her claim of disability discrimination
based on the agency’s alleged failure to reasonably accommodate her, nor can she
prove disparate treatment disability discrimination. Haas, 2022 MSPB 36,
¶¶ 28-29.10
Reprisal for protected EEO activity
¶29In evaluating the appellant’s EEO reprisal claim, the administrative judge
noted that the appellant had requested an accommodation for her disability and
had filed discrimination complaints with the agency’s EEO office and the Equal
Employment Opportunity Commission. ID at 21 (citing IAF, Tab 11 at 13,
Tab 13). The appellant’s complaints included allegations of discrimination based
on her race, sex, and disability. IAF, Tab 13 at 7-9. Considering the evidence as
a whole, the administrative judge found that the appellant failed to prove that
retaliation was a motivating factor in her removal. ID at 21-22.
¶30For the reasons explained in the initial decision, we agree with the
administrative judge that the appellant did not prove motivating factor. However,
to the extent that the appellant’s claims of retaliation were protected under the
Rehabilitation Act rather than Title VII, she would need to prove that retaliation
was a but-for cause of her removal. Pridgen, 2022 MSPB 31, ¶¶ 44-47.
Nevertheless, because the appellant has not proven motivating factor, she
necessarily has not proven but-for causation. See Haas, 2022 MSPB 36, ¶ 32.
The appellant’s claims of adjudicatory error are unsupported.
¶31The appellant also argues on review that the administrative judge
improperly refused to admit all of her medical documentation and performance
evaluations.6 PFR File, Tab 1 at 3. We do not agree. An administrative judge
has wide discretion to control proceedings, and the Board has said that “[t]o
obtain reversal of an initial decision on the ground that the [administrative judge]
abused his discretion in excluding evidence, the petitioning party must show on
6 The appellant is apparently referring to the administrative judge’s evidentiary ruling
regarding the documents that the appellant submitted with her written prehearing
statement. IAF, Tab 33 at 5-6, Tab 41. The agency objected to these documents based
on the appellant’s non-responsiveness to its requests for production. IAF, Tab 37.
During the prehearing conference, the administrative judge notified the parties that she
would reserve judgment on the admission of these documents until the hearing. IAF,
Tab 40 at 5. At the hearing, the administrative judge admitted only one of the
documents, the September 17, 2018 letter from the appellant’s doctor stating that she
was unable to work. HT at 73, 106 (statements of the administrative judge). 11
review that relevant evidence, which could have affected the outcome, was
disallowed.” Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48, ¶ 12
(2004), aff’d, 121 F. App’x 865 (Fed. Cir. 2005). The appellant’s performance is
not relevant to the dispositive issues in this appeal and the appellant has not
shown that the medical documentation she references on review could have
affected the outcome of this case.
The appellant has not shown that the administrative judge was biased.
¶32The appellant also raises an apparent claim of adjudicatory bias on review,
asserting that the administrative judge refused to listen to her or her
representative. PFR File, Tab 1 at 5. The appellant also alleges that the
administrative judge did not allow her representative to question her or the
agency’s witness. Id.
¶33There is a presumption of honesty and integrity on the part of administrative
judges that can only be overcome by a substantial showing of personal bias, and
the Board will not infer bias based on an administrative judge’s rulings on issues.
Williams v. U.S. Postal Service , 87 M.S.P.R. 313, ¶ 12 (2000). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence a
deep-seated favoritism or antagonism that would make fair judgment impossible.
Simpkins v. Office of Personnel Management , 113 M.S.P.R. 411, ¶ 5 (2010).
¶34The appellant’s allegations on review, which do not relate to any
extrajudicial conduct by the administrative judge, neither overcome the
presumption of honesty and integrity that accompanies an administrative judge
nor establish that she showed a deep-seated favoritism or antagonism that would
make fair judgment impossible.
We remand this appeal for further adjudication in accordance with decisions of
the Federal Circuit issued after the initial decision.
¶35After the initial decision in this case was issued, the U.S. Court of Appeals
for the Federal Circuit decided Rodriguez v. Department of Veterans Affairs ,12
8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), in which it determined that the agency
erred by applying a substantial evidence burden of proof to its internal review of
a disciplinary action under 38 U.S.C. § 714. The court found that substantial
evidence is the standard of review to be applied by the Board, not the agency. Id.
at 1298-1300. Instead, the agency’s deciding official must use a preponderance
of the evidence burden of proof to “determine[]” whether “the performance or
misconduct . . . warrants” the action at issue. Id. at 1298-1301 (quoting
38 U.S.C. § 714(a)(1)). The holding in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. Semenov v. Department of
Veterans Affairs , 2023 MSPB 16, ¶ 22.
¶36As he explained in the decision notice, the deciding official removed the
appellant based on his conclusion that substantial evidence supported the charges.
IAF, Tab 11 at 17. The deciding official did not testify at the hearing, and there
was no evidence suggesting that the charges were sustained based on more than
substantial evidence. The administrative judge and the parties did not have the
benefit of Rodriguez and therefore were unable to address its impact on this
appeal. We therefore remand this case for adjudication of whether the agency’s
application of the substantial evidence standard constituted harmful error. See
Semenov, 2023 MSPB 16, ¶ 22. A harmful error is an error by the agency in the
application of its procedures that is likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
the error. 5 C.F.R. § 1201.4(r). The appellant bears the burden of proving a
harmful error affirmative defense by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(C).
¶37After the initial decision was issued in this case, the Federal Circuit also
issued its decisions in Sayers v. Department of Veterans Affairs , 954 F.3d 1370
(Fed. Cir. 2020), and Connor v. Department of Veterans Affairs , 8 F.4th 1319
(Fed. Cir. 2021). In Sayers, 954 F.3d at 1379, the Federal Circuit held that
38 U.S.C. § 714 required that the Board review for substantial evidence the13
entirety of the removal decision, including the penalty. In Connor, 8 F.4th
at 1325-26, the court held that the agency and the Board were required to apply
the factors relevant to penalty determinations set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), to the selection and review of
penalties in 38 U.S.C. § 714 actions.
¶38After denying the appellant’s affirmative defenses, the administrative judge
found that because the agency proved its charges by substantial evidence, the
removal penalty must be sustained. ID at 23-24. She also found that the
reasonableness of the penalty and the Douglas factors were “immaterial.” ID
at 24. Because the deciding official did not testify during the hearing and his
decision notice evidences only vague consideration of some of the Douglas
factors, IAF, Tab 11 at 17-20, it is unclear whether he considered all of the
relevant Douglas factors in making his decision.
¶39The administrative judge and the parties did not have the benefit of Sayers
or Connor, and thus, they were unable to address their impact on this appeal. We
therefore also remand this case for adjudication of whether the agency proved by
substantial evidence that it properly applied the relevant Douglas factors and its
penalty was reasonable. See Semenov, 2023 MSPB 16, ¶ 50. If the agency does
not make such a showing, the administrative judge should remand the appellant’s
removal to the agency for a new penalty decision. See id.
¶40The administrative judge should permit the parties to submit additional
evidence and argument on the issues on remand, to include holding a
supplemental hearing if requested. The administrative judge should approve the
deciding official as a witness if requested by either party. The administrative
judge shall then issue a new initial decision addressing the issues on remand. She
may incorporate the findings and conclusions of her prior initial decision,
consistent with this Remand Order, into her new initial decision. I f any argument
or evidence received on remand affects her previous findings, including those
regarding the agency’s charges or the appellant’s affirmative defenses, the14
administrative judge should address such argument or evidence in the remand
initial decision.7 See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (explaining that an initial decision must identify all material
issues of fact and law, summarize the evidence, resolve issues of credibility, and
include the administrative judge’s conclusions of law and her legal reasoning, as
well as the authorities on which that reasoning rests).
ORDER
¶41For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7 The administrative judge found that 38 U.S.C. § 714 appeared to eliminate the
requirement under 5 U.S.C. § 7513(a) that the agency’s action promote the efficiency of
the service. ID at 24. Because the parties did not raise this issue on review, we do not
address it. See Semenov, 2023 MSPB 16, n.9 (declining to address the issue of whether
the nexus requirement applied to a 38 U.S.C. § 714 action because the parties did not
raise it on review) . Nevertheless, assuming proof of nexus is required under 38 U.S.C.
§ 714, we find the agency would have met its burden here, as the charges related
directly to the efficiency of the service. See, e.g., Adams v. Department of Labor ,
112 M.S.P.R. 288, ¶ 8 (2009) (stating that any sustained charge of AWOL is inherently
connected to the efficiency of the service as an essential element of employment is to be
on the job when one is expected to be there); Howarth v. U.S. Postal Service ,
77 M.S.P.R. 1, 7 (1997) (finding nexus since failure to follow instructions inherently
affects the agency’s ability to carry out its mission).15 | Bamba_Levada_NY-0714-19-0055-I-1__Remand_Order.pdf | 2024-07-05 | LEVADA BAMBA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0714-19-0055-I-1, July 5, 2024 | NY-0714-19-0055-I-1 | NP |
1,049 | https://www.mspb.gov/decisions/nonprecedential/Dobbins_Michael_D_CH-0752-18-0471-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL D. DOBBINS,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
CH-0752-18-0471-I-1
DATE: July 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
H. Jerome Briscoe , Windsor Mills, Maryland, for the appellant.
Jose Ortiz , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his demotion. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the appellant’s retaliation claim
and allegation that the penalty was not consistent with penalties levied against
other employees for similar offenses, we AFFIRM the initial decision.
BACKGROUND
Effective June 29, 2014, the agency demoted the appellant from the
position of Supervisory Air Traffic Control Specialist, AT-2152-EJ, to the
position of Air Traffic Control Specialist, AT-2152-EH, based on the following
reasons: (1) exhibiting a sleep-like state while on duty; (2) misuse of
Government time; and (3) failure to comply with security procedures. Initial
Appeal File (IAF), Tab 21 at 54-57, 63-64.1 Both positions are with the Federal
Aviation Administration at the Willow Run Air Traffic Control Tower in
Belleville, Michigan. Id. at 54-55.
The appellant timely filed a Board appeal of his demotion, and he requested
a hearing. IAF, Tab 1 at 1-9, Tab 50, Initial Decision (ID) at 2 & n.1. He raised
the affirmative defenses of race discrimination, retaliation for activity protected
under Title VII of the Civil Rights Act of 1964, and harmful procedural error.
IAF, Tab 1 at 9, Tab 26, Tab 32 at 1-2, Tab 37 at 2.
1 The appellant’s supervisor was the proposing and deciding official. IAF, Tab 21
at 55-56, 632
After holding a hearing by video conference, the administrative judge
issued an initial decision affirming the appellant’s demotion. ID at 2, 17; IAF,
Tab 7 at 1-2. Specifically, she found that the agency proved all of its stated
reasons for the demotion, that the agency’s action was taken for such cause as
promotes the efficiency of the service, and that the penalty of demotion is within
the bounds of reasonableness. ID at 3-9, 13-17. She further found that the
appellant did not prove his affirmative defenses. ID at 9-13.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant does not challenge, and we discern no reason to disturb, the
administrative judge’s findings that the agency proved that the charged
misconduct occurred and there was a nexus between the sustained misconduct and
the efficiency of the service. PFR File, Tab 1; ID at 3-9. Instead, his arguments
on review mainly concern the affirmative defenses and the reasonableness of the
penalty. PFR File, Tab 1. For the following reasons, we find that he has failed to
provide a basis to disturb the initial decision.2
The appellant’s due process and harmful procedural error arguments are
unavailing.
For the first time on review, the appellant argues that the agency violated
his constitutional due process rights by providing false “notice” in the notice of
proposed demotion that the deciding official would consider the agency’s Table
of Penalties. Id. at 2; IAF, Tab 21 at 64. The appellant asserts that the deciding
official testified that he did not consider the Table of Penalties. PFR File, Tab 1
2 The appellant’s mere disagreement with the administrative judge’s findings regarding
his harmful procedural error claims does not provide a basis to disturb the initial
decision. PFR File, Tab 1 at 9; ID at 9-10; see Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions). 3
at 2. Further, the appellant reasserts his claim from his written closing argument
that the deciding official’s testimony that the Table of Penalties did not apply to
the appellant as a non-bargaining-unit, supervisory employee shows that the
agency committed harmful procedural error. Id. at 2-3; IAF, Tab 45 at 7.
The appellant has not explained why he was unable to raise his new due
process argument before the administrative judge despite his due diligence. See
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (observing that
the Board generally will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence). Nevertheless, as the
U.S. Court of Appeals for the Federal Circuit held in Farrell v. Department of the
Interior, 314 F.3d 584, 593 (Fed. Cir. 2002), “there is no constitutional
requirement that an agency provide advance notice of the possible range of
penalties. Due process does not require that an agency post the specific penalties
to which an employee could be subject for any particular violation.” Moreover,
the appellant has mischaracterized the deciding official’s testimony. Although
the deciding official testified that he believed the Table of Penalties did not apply
to the appellant, he also testified that he still considered it in making his decision.
ID at 16; Hearing Transcript (HT) at 38-39, 101, 107 (testimony of the deciding
official). Thus, even assuming that the deciding official held a mistaken belief
about the Table of Penalties, the appellant has failed to explain how the deciding
official’s alleged error was harmful. See Forte v. Department of the Navy ,
123 M.S.P.R. 124, ¶ 19 (2016) (explaining that, to establish harmful error, an
appellant must prove that a procedural error was likely to have caused the agency
to reach a conclusion different from the one it would have reached in the absence
or cure of the error); see also 5 C.F.R. § 1201.4(r) (providing that the appellant
has the burden to show that the error was harmful, i.e., that it caused substantial
harm or prejudice to his rights).4
We affirm the administrative judge’s findings that the appellant failed to prove
the affirmative defenses of race discrimination and retaliation for protected
activity under Title VII, as modified to supplement her analysis of his retaliation
claim.
The appellant challenges on review the administrative judge’s findings that
he failed to prove the affirmative defenses of race discrimination and retaliation
for protected activity under Title VII. PFR File, Tab 1 at 3-4, 7-9; ID at 10-13.
To establish a claim of race discrimination or retaliation, an appellant must show
that the prohibited consideration was at least a motivating factor in the personnel
action at issue. Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 21-22. Considering the record evidence as a whole, we agree with the
administrative judge’s finding that the appellant did not meet his burden of
proving that race discrimination was a motivating factor in his demotion.3 ID
at 12; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding that
the Board will not disturb an administrative judge’s findings when the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
Regarding his retaliation claim, the appellant contends that the
administrative judge erroneously failed to find that he engaged in protected
activity under Title VII when he purportedly told the deciding official in February
2014 that the agency’s investigation into allegations against him was the product
of racial animus. PFR File, Tab 1 at 3-4. The administrative judge acknowledged
the appellant’s argument that his protected activity was “speaking his mind”
about alleged harassment due to the investigation into the subordinate employee’s
allegations against him. ID at 11; IAF, Tab 26 at 2. However, she apparently
found that the appellant did not engage in prior equal employment opportunity
3 Because we find no error with the administrative judge’s motivating factor analysis or
conclusion regarding the appellant’s discrimination claim, we do not reach the question
of whether the appellant’s race was a “but-for” cause of the demotion. Johnson v.
Department of Veterans Affairs , 2023 MSPB 9, ¶ 5 n.2.5
(EEO) activity because he filed an EEO complaint after his demotion. ID
at 11-12. We modify the initial decision to supplement the administrative judge’s
analysis of the appellant’s retaliation claim, as follows.
Even assuming that the appellant’s alleged February 2014 conversation
constitutes protected activity under the opposition clause of 42 U.S.C. § 2000e-
3(a), we find that he has failed to prove by preponderant evidence that such
activity was a motivating factor in his demotion. The appellant testified
regarding the alleged February 2014 conversation with the deciding official and
his belief that the agency retaliated against him for objecting to “harassment” by
the subordinate employee. HT at 160-61, 177, 179-80 (testimony of the
appellant). Although the deciding official did not testify about the alleged
February 2014 conversation, he testified that he did not consider the subordinate
employee’s potential bias as a mitigating factor. HT at 105 (testimony of the
deciding official).
The administrative judge acknowledged the appellant’s argument that the
agency’s reasons for demoting him were not worthy of belief and were pretext
retaliation. ID at 11. The administrative judge considered the testimony of the
subordinate employee, the appellant, and the deciding official, and she concluded
that the deciding official credibly testified about the reasons he proposed and
decided to demote the appellant. ID at 11-12. She further found no evidence
linking the subordinate employee’s allegedly discriminatory animus to the
deciding official’s decision to demote the appellant. Id.; cf. Brown v. Department
of Justice, EEOC Appeal No. 0120045121, *16 (December 20, 2006) (holding
that the responsible management official did not need to have racial animus
against the complainant to support a finding of discrimination when the official
heavily relied upon the accounts of employees who harbored racial animus
against the complainant in deciding to terminate). We find that he has failed to
provide a sufficiently sound reason to disturb the administrative judge’s finding
that the deciding official credibly testified about the reasons he proposed and6
decided to demote the appellant. ID at 11-12; see Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). After reviewing the documentary
and testimonial evidence as a whole, we find very little evidence to support the
appellant’s speculation that the February 2014 conversation influenced the
demotion decision in any way. In particular, we find that the appellant’s
speculative and conclusory testimony on this issue and the close proximity in
time between the alleged February 2014 conversation and his demotion, without
more, are insufficient to prove by preponderant evidence that this conversation
was a motivating factor in the demotion.
We affirm the administrative judge’s finding that the penalty of demotion is
within the bounds of reasonableness, as modified to supplement her analysis of
the appellant’s claim that the agency treated him more harshly than similarly
situated individuals.
For the reasons described in the initial decision, we agree with the
administrative judge’s findings that the deciding official considered the relevant
Douglas factors and that the penalty of demotion is within the bounds of
reasonableness. ID at 13-17; see Douglas v. Veterans Administration , 5 M.S.P.R.
280, 305-06 (1981) ( articulating a nonexhaustive list of 12 factors that are
relevant for consideration in assessing the reasonableness of an agency-imposed
penalty). Specifically, the deciding official considered the appellant’s sincere
apology, length of service, lack of prior discipline, satisfactory performance, and
personal and medical issues, but he justifiably decided to demote him because of
the seriousness of the three offenses that were directly related to his supervisory
position. ID at 15; HT at 38-41, 99-100, 105 (testimony of the deciding official);
IAF, Tab 21 at 56; see Martin v. Department of Transportation , 103 M.S.P.R.
153, ¶ 13 (2006) (observing that the most important factor in assessing the
reasonableness of a penalty is the nature and seriousness of the misconduct and
its relation to the employee’s duties, position, and responsibilities and that
agencies are entitled to hold supervisors to a higher standard of conduct because7
they occupy positions of trust and responsibility), aff’d, 224 F. App’x 974 (Fed.
Cir. 2007).
The appellant reasserts on review his arguments from his closing argument
that the agency failed to consider the following relevant factors: the lack of
discipline imposed on a supervisor who was known to have slept on the job; the
consistency of the penalty with the Table of Penalties; the lack of prior warning
about his conduct; and certain mitigating circumstances (the illegality of the
photographs, his serious back injury, his wife’s car emergency, and the
subordinate employee’s jealousy and biased motives). PFR File, Tab 1 at 4-5;
IAF, Tab 45 at 9-10. The appellant further argues that the deciding official failed
to follow the guidance provided in the Table of Penalties. PFR File, Tab 1 at 7.
For the reasons explained below, we discern no basis to disturb the administrative
judge’s finding that the deciding official considered the relevant Douglas factors.
ID at 14.
The deciding official testified that he considered the appellant’s back injury
as a mitigating factor but not the subordinate employee’s possible bias or the
illegality of the photographs. HT at 105-06 (testimony of the deciding official).
The deciding official stated in his decision that he considered as mitigating
factors the appellant’s personal and medical issues that he mentioned in his
written reply to the proposed demotion. IAF, Tab 21 at 56. In his written reply,
the appellant discussed having medical issues and that his fiancé was pregnant
and had car problems. Id. at 60-62. Because the appellant has failed to explain
how the purported illegality of the photographs and the allegedly improper
motives of the subordinate employee contributed to his misconduct, we find that
the deciding official did not need to consider them as mitigating factors. Cf. Gill
v. Department of Defense , 92 M.S.P.R. 23, ¶¶ 2, 27 (2002) (finding that the
appellant’s anxiety and depression and provocation by her supervisor were
mitigating factors because they contributed to her disrespectful conduct).8
Moreover, the record reflects that the deciding official informed the
appellant in April 2013 that employee breaks away from the facility should not
exceed 30 minutes typically. ID at 5-6; HT at 44-46 (testimony of deciding
official); IAF, Tab 21 at 64. The record further reflects that the deciding official
considered the Table of Penalties and that the penalty of demotion is within the
recommended range of penalties. HT at 38-39, 101 (testimony of the deciding
official). Specifically, the Table of Penalties recommends the following range of
penalties for the following types of first offenses: 10-day suspension to removal
for misuse of Government time; 14-day suspension to removal for failure to
perform duties while sleeping or exhibiting a sleep-like state when the employee
occupies a position where safety of personnel or property is endangered; and
reprimand to 14-day suspension for ignoring signs, posted rules, fire alarms, or
written or verbal safety instructions or regulations. IAF, Tab 18 at 42, 46-47.
The appellant does not dispute that the agency proved all three offenses and that
he is held to a higher standard as a supervisor.
In addition, the appellant alleges that the penalty was inconsistent with
penalties previously levied against other employees for similar offenses. The
“consistency of the penalty with those imposed upon other employees for the
same or similar offenses” is only one of the factors for consideration in
determining the reasonableness of the penalty. Douglas, 5 M.S.P.R. at 305.
Here, the administrative judge discussed the appellant’s testimony that a retired
supervisor who would sleep on duty was never disciplined. ID at 14; HT
at 161-63 (testimony of the appellant). However, s he did not determine whether
the appellant’s purported comparator is similarly situated for purposes of the
appellant’s allegation that the agency treated him more harshly than similarly
situated individuals. Therefore, we modify the initial decision to supplement the
administrative judge’s analysis on this issue.
After the administrative judge issued the initial decision, the Board issued
Singh v. U.S. Postal Service , 2022 MSPB 15. In Singh, the Board stated that the9
universe of potential comparators “should be limited to those employees whose
misconduct and/or other circumstances closely resemble those of the appellant.”
Id., ¶ 13.
Here, we find that the appellant has failed to provide a valid comparator
because the retired supervisor did not purportedly engage in “the same or similar
offenses” as him, i.e., exhibiting a sleep-like state while on duty, misuse of
Government time, and failure to comply with security procedures. Douglas,
5 M.S.P.R. at 305; see Singh, 2022 MSPB 15, ¶ 17 (observing that the Board
should not attempt to weigh the relative seriousness of various offenses in order
to determine whether two employees who committed different acts of misconduct
were treated differently). Therefore, we find that the appellant has failed to
establish that the agency treated him more harshly than similarly situated
individuals. We further find that the deciding official’s testimony that he worked
with Human Resources to confirm that demotion was consistent with the penalties
previously imposed for similar offenses by other employees proves that the
agency considered the corresponding Douglas factor. ID at 16; HT at 37-38, 101,
108 (testimony of the deciding official); see Douglas, 5 M.S.P.R. at 305.
To support his arguments, the appellant cites the following court cases
finding that the Board erred in analyzing the relevant Douglas factors: Tartaglia
v. Department of Veterans Affairs , 858 F.3d 1405 (Fed. Cir. 2017); and Bal v.
Department of the Navy , 729 F. App’x 923 (Fed. Cir. 2018). PFR File, Tab 1
at 5-6. He also cites a decision from the District of Columbia, Office of
Employee Appeals (OEA), discussing a finding by the District of Columbia Court
of Appeals that an administrative law judge erred by failing to discuss the
relevant Douglas factors. PFR File, Tab 1 at 6; see Washington v. District of
Columbia Public School System, Department of Transportation , OEA Matter
No. 1601-0129-11R16 (July 18, 2016), available at https://casesearch.oea.dc.gov.
Here, because we agree with the administrative judge’s thorough and10
well-reasoned analysis of the relevant Douglas factors, as modified, we find that
the cases cited by the appellant are unavailing. ID at 13-17.
Accordingly, we affirm the agency’s demotion action. See Little v.
Department of Transportation , 112 M.S.P.R. 224, ¶¶ 2, 5, 32 (2009) (concluding
that, given the multiplicity of charges, the serious nature of each of the charges,
the appellant’s status as a supervisor, his admissions regarding his misconduct,
and the deciding official’s proper consideration of the relevant Douglas factors,
the administrative judge properly affirmed the appellant’s demotion from a
Supervisory Air Traffic Control Specialist to an Air Traffic Control Specialist).
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain12
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 13
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction. The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation14
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Dobbins_Michael_D_CH-0752-18-0471-I-1__Final_Order.pdf | 2024-07-05 | MICHAEL D. DOBBINS v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. CH-0752-18-0471-I-1, July 5, 2024 | CH-0752-18-0471-I-1 | NP |
1,050 | https://www.mspb.gov/decisions/nonprecedential/Coleman_Larry_B_SF-1221-19-0510-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY B. COLEMAN JR.,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-1221-19-0510-W-1
DATE: July 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Larry B. Coleman Jr. , Oxnard, California, pro se.
Julianne Surane , Port Hueneme, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant exhausted additional disclosures and to apply the correct
standard for determining whether an alleged hostile work environment constitutes
a personnel action, we AFFIRM the initial decision.
BACKGROUND
¶2At all times relevant to this appeal, the agency employed the appellant as a
Supervisory Technician, NT-0856-05, at the Naval Surface Warfare Center,
Port Hueneme Division, Port Hueneme, California. Initial Appeal File (IAF),
Tab 49 at 11. On April 8, 2019, the appellant filed a complaint with the Office of
Special Counsel (OSC), and supplemented his complaint in May 2019. IAF,
Tab 6 at 48-52, Tab 7 at 4-16. In the information that he submitted to OSC, the
appellant alleged that the agency placed him on administrative leave, suspended
his security clearance, suspended him indefinitely, and subjected him to a hostile
work environment in reprisal for disclosing wrongdoing in his December 11,
2015, March 2, 2019, and March 7, 2019 memoranda to management officials; for
reporting fuel spills on April 1 and 5, 2019; and for filing a complaint with the
agency’s Office of Inspector General (OIG). IAF, Tab 6 at 5, 48-52, Tab 7
at 4-16. On May 29, 2019, OSC closed its inquiry into the appellant’s complaint
and notified him of his right to file an appeal with the Board. IAF, Tab 6 at 5.2
¶3The appellant filed a timely IRA appeal. IAF, Tab 1. After the close of the
record on jurisdiction, the administrative judge issued an initial decision, without
holding a hearing, dismissing the appeal for lack of jurisdiction. IAF, Tab 53,
Initial Decision (ID) at 1, 9. She found that the appellant failed to make a
nonfrivolous allegation that the agency had taken or threatened to take a covered
personnel action against him. ID at 5-8. She did not consider the remaining
aspects of the appellant’s claim. ID at 5.
¶4The appellant has filed a petition for review, consisting of his prehearing
submission and the agency’s response thereto from his separate indefinite
suspension appeal.2 Petition for Review (PFR) File, Tab 1. On review, he raises
no specific challenge to the initial decision from this appeal.3 Id. The agency has
filed a response to the appellant’s petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5Although the appellant did not raise any specific challenges to the initial
decision, we nevertheless find it necessary to supplement the administrative
judge’s jurisdictional findings. The Board has jurisdiction over an IRA appeal if
the appellant has exhausted his administrative remedies before OSC and makes
nonfrivolous allegations that (1) he made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
2 The Western Regional Office also docketed the appellant’s indefinite suspension as an
adverse action appeal, Coleman v. Department of the Navy , MSPB Docket No. SF-0752-
19-0509-I-1.
3 The documents the appellant submits on review were not included in the record below,
and the administrative judge did not consider them in reaching her decision to dismiss
this appeal for lack of jurisdiction. The issue of the Board’s jurisdiction is always
before the Board and may be raised by either party or sua sponte by the Board at any
time during a Board proceeding. Simnitt v. Department of Veterans Affairs ,
113 M.S.P.R. 313, ¶ 5 (2010 ). However, the appellant has not explained how these
documents would affect the outcome of the appeal; therefore, we decline to consider
them. See Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 7 (2013 )
(considering the appellant’s evidence of exhaustion submitted for the first time on
review only because it implicated the Board’s jurisdiction and warranted an outcome
different from that of the initial decision).3
§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a)(2)(A).4 Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)
(1); Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir.
2001).
The appellant exhausted additional alleged protected disclosures and activity.
¶6The administrative judge found that the appellant exhausted his claims that
the agency placed him on administrative leave, suspended his security access,
suspended him indefinitely, and subjected him to a hostile work environment in
reprisal for disclosing a hostile work environment and harassment in his March 2,
2019, and March 7, 2019 memoranda to management officials. ID at 4-5. As the
administrative judge correctly explained, ID at 4, under 5 U.S.C. § 1214(a)(3), an
employee is required to exhaust his administrative remedies with OSC before
seeking corrective action from the Board in an IRA appeal, Mason v. Department
of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). The Board may consider
only those disclosures of information and personnel actions that the appellant
raised before OSC. Id. To satisfy the exhaustion requirement, an appellant must
provide to OSC a sufficient basis to pursue an investigation that might lead to
corrective action. Chambers v. Department of Homeland Security , 2022 MSPB 8,
¶ 10.
¶7In addition to the alleged personnel actions and disclosures identified by the
administrative judge, ID at 4 -5, the record reflects that the appellant notified OSC
that he disclosed a hostile work environment in December 2015 and fuel spills on
April 1 and April 5, 2019, and filed an OIG complaint, IAF, Tab 6 at 50, Tab 7
4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, plausible on its face, and material to the legal issues in the appeal. Id.
Whether allegations are nonfrivolous is determined based on the written record.
Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 6 (2016).4
at 5-6, 11-12. Thus, we find that the appellant exhausted his OSC remedy
regarding these alleged protected disclosures and activity.5
The appellant did not nonfrivolously allege a covered personnel action.
¶8In finding that the appellant did not nonfrivolously allege a covered
personnel action, the administrative judge determined that the Board was
precluded from reviewing the agency’s security clearance determination and also
from considering the remaining alleged personnel actions because they were
inextricably intertwined with that determination. ID at 5-8. She nevertheless
proceeded to analyze the appellant’s hostile work environment claim and found
that he did not allege a hostile work environment rising to the level of a personnel
action. ID at 8.
¶9The parties do not challenge the administrative judge’s finding that the
Board cannot review the suspension of the appellant’s security clearance, his
indefinite suspension, and his placement on administrative leave. ID at 5-8; IAF,
Tab 49 at 11-37. We discern no basis to disturb those findings. See Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
5 The appellant submitted a substantial amount of evidence to the record below. IAF,
Tabs 6-48. Therein, he also alleged that he was not selected for positions and several
supervisors threatened to remove him as the Contracting Officer Representative and
from his position. IAF, Tab 6 at 69-71, Tab 43 at 6-7. A nonselection, threatened
removal, and significant change in duties are personnel actions. 5 U.S.C. § 2302(a)(2)
(A)(i), (ix), (xii). He also alleged that he made additional disclosures to management.
See, e.g., IAF, Tab 29 at 5, 11-12. However, other than his OSC complaint and
correspondence with the agency, IAF, Tab 6 at 48-52, Tab 7 at 4-16, there is no
indication that he submitted these documents to OSC or otherwise raised these
allegations with OSC. See Mason, 116 M.S.P.R. 135, ¶ 8; Schmittling v. Department of
the Army, 92 M.S.P.R. 572, ¶ 26 (2002) (stating that, in general, an appellant has not
exhausted his remedy with OSC when he did not raise before OSC the personnel action
he is appealing to the Board). Accordingly, the appellant has not proven that he
exhausted those additional claims, and we do not consider them.5
¶10As to the appellant’s hostile work environment allegations, the
administrative judge did not identify any incidents underlying this claim. ID
at 7-8. We do so here, focusing on those occurring after his earliest alleged
disclosures on December 11, 2015. ID at 5-8. In summary, the appellant asserted
that his former first-level supervisor criticized his performance, “blamed” him for
the problems in his department, “scolded” him about his work on several
contracts, accused him of lying in his December 2015 memorandum to
management, advertised vacancies with duties similar to his, and failed to change
his position series to one consistent with his actual duties; that his current
first-level supervisor undermined his supervisory authority and, on March 6,
2019, sent him “threatening communications,” entered his office in an
“aggressive” and “threatening manner” and “threw an object” at him while he was
at his desk; and that his second-level supervisor criticized his performance and
relied on hostility and favoritism to manage the department. IAF, Tab 6 at 15-17,
18-24, 54, 69-71, 92-94, Tab 9 at 4-20, Tab 43 at 6-7, Tab 44 at 58-61. These
incidents do not appear to be intertwined with the agency’s security clearance
determination. Thus, to the extent that the administrative judge found that the
Board was precluded from reviewing these claims as an alleged personnel action,
we disagree.
¶11As to her finding that the appellant did not nonfrivolously allege a hostile
work environment rising to the level of a personnel action, the administrative
judge did not set forth the standard she applied for analyzing this claim or the
reasoning behind her finding. Although we agree with the outcome, we modify
the initial decision to include this necessary analysis.
¶12The Board has found that the creation of a hostile work environment may
constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii) to the extent
that it represents a significant change in duties, responsibilities, or working
conditions. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16. To
meet this standard, an agency’s actions must, individually or collectively, have6
practical and significant effects on the overall nature and quality of an
employee’s working conditions, duties, or responsibilities. Id. In determining
whether a hostile work environment is present, the Board will consider the
totality of the circumstances, including agency actions that may not individually
rise to the level of a personnel action. Id., ¶ 18.
¶13Upon review of the record, we find that the appellant failed to make
nonfrivolous allegations that, individually or collectively, amounted to a
significant change in his working conditions. See 5 U.S.C. § 2302(a)(2)(A)(xii);
see also Skarada, 2022 MSPB 17, ¶¶ 15-16. Even if true, the criticisms the
appellant received were work-related and do not appear significant enough to
meet this standard. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 15
(2011) (explaining that an employee is not guaranteed a working environment
free of stress); cf. Skarada, 2022 MSPB 17, ¶ 18 (finding that the appellant
nonfrivolously alleged a significant change in working conditions when he
alleged, among other things, that his supervisors falsely accused him of violating
Federal law, subjected him to multiple investigations, yelled at him on several
occasions, and denied him the guidance and support necessary to successfully
perform his duties). The incidents described also do not appear to be of the
severity, either individually or collectively, that the Board has found to constitute
a hostile work environment. See Covarrubias v. Social Security Administration ,
113 M.S.P.R. 583, ¶¶ 8, 15 n.4 (2010) (finding that the appellant nonfrivolously
alleged a significant change in working conditions when she alleged that her
supervisors harassed her about personal telephone calls, closely monitored her
whereabouts, followed her to the bathroom, and denied her an accommodation for
her spina bifida, which required her to self-catheterize), overruled on other
grounds by Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12,
n.5 (2014). His other allegations of threats and hostility from his supervisors are
too vague to determine what practical effect their actions had on the appellant’s
working conditions. See, e.g., Zimmerman v. Department of Housing and Urban7
Development, 61 M.S.P.R. 75, 79 -80 (1994) (finding that allegations of
“continuing reprisal” and “threats” were too vague to constitute personnel
actions).
¶14Accordingly, we agree with the administrative judge that the appellant did
not nonfrivolously allege that he experienced at least one personnel action. We
therefore agree with her decision not to consider the remaining elements of the
appellant’s reprisal claim and affirm the initial decision as modified.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your
claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you9
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 10
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Coleman_Larry_B_SF-1221-19-0510-W-1__Final_Order.pdf | 2024-07-05 | LARRY B. COLEMAN JR. v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-1221-19-0510-W-1, July 5, 2024 | SF-1221-19-0510-W-1 | NP |
1,051 | https://www.mspb.gov/decisions/nonprecedential/Coleman_Larry_B_SF-0752-19-0509-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY B. COLEMAN JR.,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-19-0509-I-1
DATE: July 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Douglas M. Weisband , Esquire, San Diego, California, for the appellant.
Julianne Surane , Port Hueneme, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s indefinite suspension following the suspension of his
access to classified information. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Coleman_Larry_B_SF-0752-19-0509-I-1__Final_Order.pdf | 2024-07-05 | LARRY B. COLEMAN JR. v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-19-0509-I-1, July 5, 2024 | SF-0752-19-0509-I-1 | NP |
1,052 | https://www.mspb.gov/decisions/nonprecedential/Salus_Therese_I_DC-0752-18-0236-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THERESE I. SALUS,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-18-0236-I-2
DATE: July 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Therese I. Salus , Chevy Chase, Maryland, pro se.
Nigel Gant , Esquire, and Tonya Savage , Esquire, Dallas, Texas, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. On petition for review, the appellant challenges the
administrative judge’s findings sustaining the charges and upholding the penalty.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the agency erred in relying on one of the cited elements of the
appellant’s past record, we AFFIRM the initial decision.
The appellant argues on review that certain documents appear to be missing
from the agency file, specifically, a listing of the documents in her electronic
official personnel file (e-OPF) from after July 22, 2016, Initial Appeal File (IAF),
Tab 23 at 102, including evidence that the reprimand she received on
November 20, 2014, was purged in November 2016, a month before issuance of
the letter of decision on her proposed removal. Petition for Review (PFR) File,
Tab 10 at 7 n.3. In her reply to the agency’s response to her petition for review,
the appellant has submitted evidence that supports her position on this matter.
PFR File, Tab 16 at 6, 19. Under these circumstances, the appellant argues, the
deciding official should not have considered this reprimand as an aggravating
factor. PFR File, Tab 10 at 14; IAF, Tab 7 at 20. The reprimand of
November 20, 2014, does state that it “will be retained in your Official Personnel
File (OPF) for a period of two (2) years from the date of the incident.” IAF,
Tab 22 at 39. That date was November 14, 2014. Id. at 38. Because this
reprimand was purged from the appellant’s e-OPF, the deciding official erred in2
considering it in her penalty analysis as part of the appellant’s past record.
Alaniz v. U.S. Postal Service, 100 M.S.P.R. 105, ¶ 17 (2005); Salus v. Department
of Health and Human Services, MSPB Docket No. DC-0752-18-0236-I-2, Appeal
File, Tab 22, Initial Decision at 31. Apart from arguing the merits of the other
elements of her past record relied upon as aggravating, PFR File, Tab 10 at 14-20,
the appellant has not shown that they were not properly considered. Bolling v.
Department of the Air Force, 9 M.S.P.R. 335, 339 -40 (1981) (finding that the
Board’s review of a prior disciplinary action is limited to determining whether
that action is clearly erroneous, if the employee was informed of the action in
writing, the action is a matter of record, and the employee was permitted to
dispute the charges before a higher level of authority than the one that imposed
the discipline). Moreover, given the seriousness of the misconduct described in
the first specification of charge (1), abuse of authority, the appellant has not
shown that, in the absence of the error regarding the consideration of a single
element of her past record, the outcome before the agency could have been
different. Therefore, she has not proven that the deciding official’s error was
harmful or that it otherwise warrants reversal of her removal. Vena v.
Department of Labor, 111 M.S.P.R. 165, ¶ 9 (2009).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Salus_Therese_I_DC-0752-18-0236-I-2__Final_Order.pdf | 2024-07-05 | THERESE I. SALUS v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0752-18-0236-I-2, July 5, 2024 | DC-0752-18-0236-I-2 | NP |
1,053 | https://www.mspb.gov/decisions/nonprecedential/Noor_MasoodSF-0752-19-0640-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MASOOD NOOR,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-19-0640-I-1
DATE: July 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Masood Noor , Fremont, California, pro se.
Colleen Burt , Stockton, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal following the revocation of his security
clearance and eligibility to access classified information. On review, the
appellant does not dispute that his security clearance was revoked, but argues the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
revocation was unwarranted and that he should not have been removed.2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
2 The appellant filed an untimely reply to the agency’s response to his petition for
review asserting that the agency’s actions were due to race discrimination. Petition for
Review (PFR) File, Tab 5. While the appellant has not addressed the presence of good
cause, we need not resolve the timeliness issue because the Board is not permitted to
adjudicate whether an adverse action that is premised on the suspension or revocation of
a security clearance constitutes impermissible discrimination or reprisal. Doe v.
Department of Justice , 121 M.S.P.R. 596, ¶ 10 (2014).
3 The appellant argues on review that agency failed to follow proper procedures because
the deciding official stated in previous correspondence that he had the authority to
overturn the revocation of the appellant’s security clearance. PFR File, Tab 1 at 4.
However, upon review of the correspondence attached to the petition for review and the
record as a whole, we do not find such a statement by the deciding official. Id. at 5-18;
Initial Appeal File (IAF), Tab 6 at 27-28, Tab 17, Hearing Recording (testimony of the
deciding official). The record supports the administrative judge’s finding that the
agency followed proper procedures in removing the appellant. IAF, Tab 19,
Initial Decision at 6-7. 2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Noor_MasoodSF-0752-19-0640-I-1__Final_Order.pdf | 2024-07-05 | MASOOD NOOR v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-19-0640-I-1, July 5, 2024 | SF-0752-19-0640-I-1 | NP |
1,054 | https://www.mspb.gov/decisions/nonprecedential/McGuinn_MargaretDE-1221-19-0441-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARGARET MCGUINN,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DE-1221-19-0441-W-1
DATE: July 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Erin Martinez , El Paso, Texas, for the appellant.
Ryan Broich , Saint Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied corrective action in her individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant is a GS-12 Loan Specialist (also known as “Area Specialist”)
for the agency’s Rural Development Administration, stationed at Las Cruces,
New Mexico. Initial Appeal File (IAF), Tab 1 at 1, Tab 10 at 24. Prior to
October 28, 2018, the appellant performed duties associated with the agency’s
Multifamily Housing Program. IAF, Tab 10 at 21. This program provides
financing for businesses to build and purchase multifamily residential buildings
to house low-income rural residents. Hearing Transcript, Day 1 (Tr. 1) at 8-9
(testimony of the State Director for Rural Development (State Director)). Agency
loans and guarantees are conditioned on the financed buildings meeting certain
code requirements, so the agency will conduct periodic property inspections to
ensure compliance. Id. at 10-12 (testimony of the State Director). The
appellant’s major job duties included performing these inspections and working
with the housing managers and owners to address problems. Id. at 8-9 (testimony
of the State Director). According to the State Director, the residents of these
projects were very poor, and it was the appellant’s “responsibility to make sure2
that they had a good place to live, but she had to work with the people who
actually owned the properties.” Id. at 9 (testimony of the State Director).
On or about October 16, 2018, the appellant received an annual
performance rating of “unacceptable.” IAF, Tab 10 at 24. This summary rating
was the result of a rating of “Does Not Meet Fully Successful” in the critical
element of “Customer Perspective,” which pertains to the quality of working
relationships that the employee maintains with customers.2 Id. at 24, 28-30.
Citing the appellant’s performance rating, the agency laterally reassigned her to
another GS-12 Loan Specialist position in Las Cruces, this time performing duties
associated with Business Programs. Id. at 21-23.
The appellant filed a complaint with the Office of Special Counsel (OSC),
alleging that her performance rating and reassignment were in retaliation for a
protected disclosure and for refusing to obey an order that would require her to
violate a regulation. IAF, Tab 1 at 11-24. OSC closed its investigation without
taking corrective action, and the appellant filed an IRA appeal. Id. at 3-5, 10.
The administrative judge found that the appellant established jurisdiction over her
appeal, and he scheduled the case for a hearing. IAF, Tabs 12, 20.
After the hearing, the administrative judge issued an initial decision
denying the appellant’s request for corrective action on the merits. IAF, Tab 33,
Initial Decision (ID) at 1. He found that the appellant failed to prove by
preponderant evidence that she engaged in or was perceived to have engaged in
activity protected under 5 U.S.C. § 2302(b)(8) or 5 U.S.C. § 2302(b)(9)(D). ID
at 7-15.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis of her perceived whistleblower claim. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
2 “Customers” in this context refers to the owners and managers of the subject
properties. IAF, Tab 33, Initial Decision at 3. 3
ANALYSIS
In the merits phase of an IRA appeal, the appellant has the burden of
proving by preponderant evidence that she engaged in protected activity described
under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and that this activity
was a contributing factor in a personnel action as described under 5 U.S.C.
§ 2302(a)(2)(A). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). The appellant does not contest the administrative judge’s finding that she
did not actually engage in protected activity. However, she maintains that she is
entitled to corrective action because the agency perceived her as a whistleblower.
PFR File, Tab 1 at 9-11. An individual who is perceived as a whistleblower is
entitled to the protections of the whistleblower protection statutes regardless of
whether she has actually engaged in protected activity. King v. Department of the
Army, 116 M.S.P.R. 689, ¶¶ 6, 8 (2011). To prove that she was perceived as a
whistleblower, an appellant must show that the responsible management officials
believed that she engaged in or intended to engage in protected activity. Id., ¶ 8.
In these cases, the issue of whether the agency perceived the appellant as a
whistleblower will essentially stand in for the “engaged in protected activity”
portion of the analysis. Id.
The central event underlying the appellant’s theory of the case occurred on
September 13, 2018, about a month before her performance evaluation was
issued. On that date, the appellant had a meeting with the State Director and her
first- and second-level supervisors. Tr. 1 at 27, (testimony of the State Director),
120 (testimony of the first-level supervisor), 163 (testimony of the second-level
supervisor), 194 (testimony of the appellant). The participants at the meeting
addressed numerous performance issues, most notably complaints about the
appellant that the State Director had recently received from four different
customers during a conference. IAF, Tab 10 at 16, 18; Tr. 1 at 27-28 (testimony
of the State Director). According to the State Director, and as confirmed in
subsequent written correspondence, the complaints all pertained to the appellant’s4
confrontational and accusatory behavior toward customers regarding perceived
code violations, as well as her alleged discourtesy toward tenants and customer
employees during site visits. IAF, Tab 10 at 19-21, 34-39; Tr. 1 at 29 -31
(testimony of the State Director). It is undisputed that during this meeting, the
State Director told the appellant that the customers were unhappy with her and
that she should reconsider how she approached them, to which the appellant
replied “are you asking me to break the law?,” and the State Director responded,
“no” but that he wanted her to follow the “spirit” of the law and regulations, and
to do so in a respectful and professional manner. ID at 4; IAF, Tab 10 at 16-18;
Tr. 1 at 102-03 (testimony of the State Director), 121-22 (testimony of the
first-level supervisor); 165-66 (testimony of the second-level supervisor), 199
(testimony of the appellant). The appellant also testified that she told the State
Director that “if he wanted me to do something other than what was in the
regulation, or the law, or my job description, I needed that in writing.” Tr. 1
at 199 (testimony of the appellant). According to the appellant, the State Director
was angered by that remark. Id. (testimony of the appellant).
The appellant’s theory of the case is that, based on this exchange, the
agency perceived her as engaging in activity protected under 5 U.S.C. § 2302(b)
(8) by pointing out that the State Director abused his authority or violated a law,
rule, or regulation when he ordered her to violate the law for the benefit of his
industry acquaintances. Based on these same facts, the appellant argues that she
was perceived to have engaged in activity protected under 5 U.S.C. § 2302(b)(9)
(D) by refusing to obey this order.3 IAF, Tab 5 at 5-6; ID at 9-10. The
administrative judge found that the appellant failed to prove that she was
3 The Board has not addressed whether individuals are protected under whistleblower
protection statutes from reprisal for perceived protected activity under 5 U.S.C.
§ 2302(b)(9)(D). See Corthell v. Department of Homeland Security , 123 M.S.P.R. 417,
¶¶ 9-12 (2016) (finding the Board has jurisdiction to consider a claim of reprisal for
perceived 5 U.S.C. § 2302(b)(9)(C) activity), overruled on other grounds by Requena v.
Department of Homeland Security , 2022 MSPB 39. In any event, because we agree
with the administrative judge that the appellant failed to prove she was perceived to
have engaged in such activity, we find it unnecessary to reach this issue.5
perceived as a whistleblower under either theory, essentially because the State
Director’s instructions to her could not reasonably be construed as requiring a
violation of a law, rule, or regulation. ID at 13-15.
On petition for review, the appellant argues that the administrative judge
“failed to consider the perceived whistleblowing by the agency based upon timing
of the prohibited personnel practices by the agency.” PFR File, Tab 1 at 4.
Specifically, she alleges that, within days of the September 13, 2018 meeting in
which she declined to violate Federal law, the agency received four written
customer complaints, which was the exact number required for an “unacceptable”
rating in the critical element of Customer Perspective. Id. at 8-11. She states that
this timing was highly suspicious because she had been working with these
customers for years without any of them ever filing a complaint about her until
that moment. Id. In other words, “not until the appellant refused to be lenient as
instructed by [the State Director] did the stakeholders have issue with the
appellant’s customer service.” Id. at 10. The appellant concludes, “The timing of
the four complaint letters along with the unacceptable rating demonstrates that the
agency perceived the appellant as a whistleblower after she refused to be more
lenient and demanded that [the State Director] provide her that instruction in
writing.” Id. at 10-11. For the following two reasons, we disagree.
First, the law does not support a finding of perceived whistleblowing based
on the suspicious timing of events. As the appellant correctly argues, the focus of
the analysis is whether the relevant agency officials believed that the appellant
engaged or intended to engage in protected activity. PFR File, Tab 1 at 10; see
King, 116 M.S.P.R. 689, ¶ 8. There are several fact patterns that may support a
finding of perceived whistleblowing, but the evidence that the Board has found to
support such findings is generally restricted to things that agency officials said or
information about the appellant that they received. E.g., King, 116 M.S.P.R. 689,
¶ 15 (stating that in cases involving allegations that an appellant was perceived as
a whistleblower, the Board focuses on the agency’s perceptions, i.e., whether the6
agency officials involved in the personnel actions at issue believed that the
appellant made or intended to make disclosures that evidenced the type of
wrongdoing listed under 5 U.S.C. § 2302(b)(8)); McCarthy v. International
Boundary and Water Commission , 116 M.S.P.R. 594, ¶ 33 (2011) (citing an
appellant’s email to an agency official that he was asserting his rights as a
whistleblower who had reported fraud, waste, and abuse, as evidence that the
agency perceived the appellant as a whistleblower), aff’d, 497 F. App’x 4 (Fed.
Cir. 2012); Juffer v. U.S. Information Agency , 80 M.S.P.R. 81, ¶¶ 16-17 (1998)
(finding an appellant nonfrivolously alleged that agency management perceived
her as a whistleblower based on her sworn statement that agency officials accused
her of sharing embarrassing data and instructed her not to use the data until it was
properly analyzed). The appellant has not identified any Board precedent, nor are
we aware of any, in which timing has been cited to support a finding that an
individual was a perceived whistleblower. The Board typically considers the
timing of events to determine whether protected activity was a contributing factor
in a personnel action. See 5 U.S.C. § 1221(e)(1)(B); Agoranos v. Department of
Justice, 119 M.S.P.R. 498, ¶ 23 (2013). Timing may be indicative of causation,
but it sheds no light on whether the causal event constitutes protected activity,
actual or perceived.
Second, even if the timing of the customer complaints and personnel
actions could be considered relevant to the issue of whether the agency perceived
the appellant as a whistleblower, we disagree with the way that she has
constructed the timeline on review. The record shows that the complaints
predated the meeting, and not the other way around. IAF, Tab 10 at 16-18; Tr. 1
at 27-28, 31 (testimony of the State Director). As explained above, the State
Director had received multiple verbal complaints about the appellant a few days
before from these same customers during a conference. Supra pp. 4-5. The fact
that the complaints were not reduced to writing and sent to the agency until
sometime later is not inherently suspicious. Furthermore, the presence of all7
these industry professionals at the same conference with the State Director is
sufficient to explain why they all lodged their complaints at approximately the
same time.
For these reasons, we find that the appellant has provided no basis to
disturb the administrative judge’s finding that the agency did not perceive her as
a whistleblower, and we affirm the initial decision denying corrective action.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file9
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 10
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | McGuinn_MargaretDE-1221-19-0441-W-1__Final_Order.pdf | 2024-07-05 | MARGARET MCGUINN v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DE-1221-19-0441-W-1, July 5, 2024 | DE-1221-19-0441-W-1 | NP |
1,055 | https://www.mspb.gov/decisions/nonprecedential/Manion_Sean_T_DC-1221-18-0668-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN T. MANION,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-18-0668-W-1
DATE: July 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Sean T. Manion , Bronx, New York, pro se.
Lauren Ruby , Esquire, and Paul N. Bley , Esquire, Falls Church, Virginia,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his request for corrective action in an individual
right of action (IRA) appeal. For the reasons discussed below, we GRANT the
appellant’s petition for review. We VACATE the initial decision to the extent
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
that it found that the appellant did not exhaust his administrative remedies
regarding his January 6, 2016 disclosure and that the appellant did not make
nonfrivolous allegations that his January 6, 2016 and January 26, 2017
disclosures were protected. We find that the appellant exhausted his
administrative remedies regarding the January 6, 2016 disclosure and made
nonfrivolous allegations that both of his disclosures were protected under
5 U.S.C. § 2302(b)(8) and were a contributing factor in the agency’s decision to
remove him. Therefore, we REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
In June 2017, the agency removed the appellant from his position as a
Research Activities Analyst, GS-0601-14, with the Defense and Veterans Brain
Injury Center (DVBIC) in the Defense Health Agency (DHA). Initial Appeal File
(IAF), Tab 1 at 7-12. Also in June 2017, the appellant filed a complaint with the
Office of Special Counsel (OSC) alleging that the agency removed him in
retaliation for making protected disclosures and engaging in protected activity.
Id. at 4, 17. On May 18, 2018, OSC informed the appellant that it was closing its
file regarding his allegations and notified him of his right to seek corrective
action from the Board. Id. at 16-17.
On July 16, 2018, the appellant timely filed a Board appeal and requested a
hearing. Id. at 1-2. The administrative judge notified the appellant of his burden
of proof and the elements to establish the Board’s jurisdiction over an IRA
appeal, and ordered him to file a statement establishing jurisdiction. IAF, Tab 4.
The appellant filed a response in which he alleged that, on January 26, 2017, he
disclosed violations of the Health Insurance Portability and Accountability Act
(HIPAA) regulations and agency research standards by forwarding an audit report
to agency officials, which led to an administrative investigation and his removal
for allegedly impeding the investigation. IAF, Tab 8 at 7. He also alleged that,2
between January and December 2016, he made disclosures relating to
mismanagement of the DVBIC research program, agency research and scientific
integrity rules compliance, Federal Acquisition Regulation (FAR)
non-compliance, whistleblower retaliation, and “personal reprisals” that were
contributing factors in his removal, and that he filed a grievance. Id. at 8-10.
Additionally, he alleged that, in April and May 2017, he made disclosures
concerning non-compliance with agency acquisition guidelines, the removal of a
Human Research Protections specialist, reform in agency research programs, his
performance rating period, and violations of agency and Office of Management
and Budget policy and the FAR regarding contactors; and that each disclosure
was a contributing factor in his removal. Id. at 10-11. He also contended that the
agency engaged in other acts of reprisal, including the degradation of his duties,
three details to non-classified duties, removal from one detail, unsubstantiated or
inappropriate counseling, unfounded accusations of being absent without leave
and a threat in the workplace, ignoring grievances, retaliation for filing
grievances, failing to provide relief for a grievance, and failing to provide him
with a 90-day performance rating period. Id. at 11. The agency moved to dismiss
the appeal for lack of jurisdiction. IAF, Tab 9.
The administrative judge directed the appellant to file a response regarding
jurisdiction that provided a more complete and detailed explanation of his claims.
IAF, Tab 14. The appellant filed a response that narrowed his alleged disclosures
down to two: (1) on January 6, 2016, he informed agency leadership that moving
the DVBIC under the DHA could violate the National Defense Authorization Act
(NDAA) of 2006; and (2) on January 26, 2017, he disclosed violations of HIPAA
and Standards for Privacy of Individually Identifiable Health Information
regulations by forwarding an audit report to his leadership and other individuals
he deemed relevant. IAF, Tab 16 at 4-9, Tab 20 at 4-9. The appellant alleged
that these disclosures were a contributing factor in his removal. IAF, Tab 20 at 6,
8. He further declared, under the penalty of perjury, that he did not have a copy3
of the information he entered into OSC’s online system and that his complaint
contained the disclosures he described. Id. at 10.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 22, Initial Decision (ID). He found that, with
respect to the first disclosure, the appellant failed to exhaust his administrative
remedies before OSC because his sworn statement was insufficient to establish
that he raised the disclosure before OSC. ID at 8. He further found that, even if
the appellant had satisfied his burden to show exhaustion, the appellant had not
made a nonfrivolous allegation that the disclosure was protected because he did
not contend in his disclosure to agency officials that the DVBIC’s move to DHA
violated a law, rule, or regulation. ID at 8-9. With respect to the second
disclosure, the administrative judge found that the appellant had exhausted his
administrative remedies before OSC, but that he had not made a nonfrivolous
allegation that his disclosure was protected because the audit at issue did not
reflect that HIPAA or other regulatory violations occurred, nor did the appellant’s
email communications forwarding the audit reflect that he was disclosing HIPAA
or regulatory violations. ID at 14-18. Accordingly, the administrative judge
dismissed the appeal. ID at 18.
The appellant timely filed a petition for review challenging each of the
initial decision’s grounds for dismissal of his appeal. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition, to which the
appellant has filed a reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish Board jurisdiction over an IRA appeal brought pursuant to the
Whistleblower Protection Enhancement Act of 2012 (WPEA), the appellant
must exhaust his administrative remedies before OSC and make
nonfrivolous allegations that: (1) he made a protected disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in4
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected disclosure or
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a).2 5 U.S.C. §§ 1214(a)(3),
1221(e)(1); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
Jurisdiction in an IRA appeal is determined based on the written record. See
Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 22 (2016)
(holding that an employee is not entitled to a jurisdictional hearing in an IRA
appeal). As set forth below, we find that the appellant exhausted his
administrative remedies regarding his January 6, 2016 correspondence with
agency officials, and made a nonfrivolous allegation that his January 6, 2016 and
January 26, 2017 correspondence with agency officials constituted protected
disclosures.
The appellant exhausted administrative remedies before OSC regarding his
January 6, 2016 statements to agency officials.
On review, the appellant argues that the administrative judge erred in
finding that he did not exhaust administrative remedies regarding his
January 6, 2016 email correspondence with agency officials. ID at 8; PFR File,
Tab 1 at 4. The overarching purpose of the requirement that an appellant exhaust
administrative remedies before OSC prior to bringing an IRA appeal before the
Board is to provide OSC with a sufficient basis to pursue an investigation that
may lead to corrective action. Johns v. Department of Veterans Affairs ,
95 M.S.P.R. 106, ¶ 15 (2003). Proof of exhaustion need not be in the form of the
appellant’s complaint to OSC. Id. Here, the appellant submitted a sworn
statement attesting that he did not have a copy of the OSC complaint that he
submitted online and that the complaint contained both of the disclosures he
2 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (2018 NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the 2018 NDAA amended various provisions of
title 5 of the U.S. Code. Our decision to affirm this appeal would be the same under
both pre- and post-2018 NDAA law.5
raised before the Board. IAF, Tab 20 at 6, 10. The administrative judge found
that the sworn statement alone was insufficient to show exhaustion regarding the
appellant’s January 6, 2016 statements. ID at 8. The appellant correctly observes
that the order the administrative judge issued setting forth the appellant’s burden
of proof and the elements to establish jurisdiction indicated that, if the appellant
did not submit a copy of his OSC complaint, his response must be in the form of
an affidavit, sworn statement, or declaration under the penalty of perjury. IAF,
Tab 4 at 7-8; PFR File, Tab 1 at 4-5.
Additionally, on review, the appellant re-submits supplemental
correspondence with OSC regarding his January 6, 2016 statements that he
submitted below, but that the administrative judge did not consider in rendering
his findings regarding exhaustion.3 IAF, Tab 8 at 33; PFR File, Tab 1 at 4-6.
This correspondence demonstrates that the appellant provided information about
his statements to agency officials regarding violations of the 2006 NDAA in
moving DVBIC to DHA. IAF, Tab 8 at 33-59; PFR File, Tab 1 at 6. The
appellant’s sworn statement, coupled with his supplemental correspondence with
OSC, is sufficient to prove that he exhausted his administrative remedies
regarding his January 6, 2016 statements to agency officials. See Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011) (providing that
an appellant may demonstrate exhaustion through his initial OSC complaint,
evidence that he amended the original complaint, including but not limited to
OSC’s preliminary determination letter and other letters from OSC referencing
any amended allegations, and the appellant’s written responses to OSC
referencing the amended allegations).
3 As discussed above, following the appellant’s initial submissions regarding
jurisdiction, the administrative judge directed the appellant to file a response regarding
jurisdiction that provided a more complete and detailed explanation of his claims. IAF,
Tab 14. The administrative judge also informed the appellant that he would not
consider the appellant’s initial submissions in determining jurisdiction. Id. at 2. The
appellant submitted the relevant documents with his initial jurisdictional submissions
but did not re-submit them with his second jurisdictional submission. IAF, Tab 8
at 33-59, Tab 20. 6
The appellant made a nonfrivolous allegation that his January 6, 2016 statements
evidenced a violation of law.
The appellant also challenges the administrative judge’s finding that, even
if the appellant had exhausted administrative remedies with respect to his
January 6, 2016 statements, he did not make a nonfrivolous allegation that the
statements constituted a protected disclosure. ID at 9-11; PFR File, Tab 1 at 4.
The administrative judge found that the appellant’s statements did not constitute a
protected disclosure because they were vague and conclusory, and articulated a
policy concern rather than a violation of law. ID at 9-11. Protected
whistleblowing occurs when an appellant makes a disclosure that he reasonably
believes evidences any violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health and safety. 5 U.S.C. § 2302(b)(8);
Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 5 & n.3 (2013).
The proper test for determining whether an employee had a reasonable belief that
his disclosures were protected is whether a disinterested observer with knowledge
of the essential facts known to, and readily ascertainable by, the employee could
reasonably conclude that the actions evidenced a violation of a law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8).
Mudd, 120 M.S.P.R. 365, ¶ 5. To establish that he held such a reasonable belief,
an appellant need not prove that the condition disclosed actually established one
or more of the listed categories of wrongdoing. Huffman v. Office of Personnel
Management, 92 M.S.P.R. 429, ¶ 9 (2002). At the jurisdictional stage, the
appellant need only nonfrivolously allege that he reasonably believed that his
disclosure evidenced a violation of one of the circumstances described in
5 U.S.C. § 2302(b)(8). Mason, 116 M.S.P.R. 135, ¶ 17. Any doubt or ambiguity
as to whether an appellant raised a nonfrivolous allegation of a reasonable
belief should be resolved in favor of a finding that jurisdiction exists.
Mudd, 120 M.S.P.R. 365, ¶ 8. 7
We find the appellant’s allegations to be sufficiently specific to constitute a
nonfrivolous allegation that he made a protected disclosure of a violation of law.
The appellant’s January 6, 2016 email included prior correspondence with other
agency officials in which he articulated a concern that the DVBIC’s transfer to
DHA was not legal because it was not consistent with a Congressional mandate in
the 2006 NDAA. IAF, Tab 20 at 13-21. In response to this correspondence, other
agency officials responded that legal review of the transfer had been conducted;
in response, the appellant maintained that this particular issue could have been
missed because the review was based on research that did not take into account
the 2006 NDAA. Id. at 14-16. An agency official suggested that the appellant
reach out to one individual in particular to obtain her opinion of any express
legislative prohibitions; the appellant’s January 6, 2016 email was directed to this
individual and attached a memorandum stating that the appellant was “concerned
about the legality and/or appropriateness of DVBIC’s move to DHA” and detailed
the legislation at issue and its relevance to the DVBIC. Id. at 11-16. Our review
of the appellant’s correspondence with agency officials regarding the legality of
the transfer over the course of 3 years, culminating in the January 6, 2016 email,
reflects that the appellant articulated more than a mere policy concern to agency
officials. Accordingly, we find that the appellant nonfrivolously alleged that he
held a reasonable belief that the DVBIC transfer violated the 2006 NDAA; thus,
he has made a nonfrivolous allegation that his statements to agency officials
constituted a protected disclosure.
The administrative judge did not address whether the appellant made a
nonfrivolous allegation that his January 6, 2016 statements were a contributing
factor in the agency’s decision to remove him. At the jurisdictional stage of an
IRA appeal, the appellant need only raise a nonfrivolous allegation that his
protected disclosure was one factor that tended to affect the personnel action in
any way. Salerno, 123 M.S.P.R. 230, ¶ 13. One way to establish this criterion is
the knowledge/timing test, under which an employee may nonfrivolously allege8
that the disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the disclosure and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id.; see 5 U.S.C. § 1221(e)(1).
The Board has found that a personnel action taken within 1 to 2 years of
a protected disclosure meets the knowledge/timing test. Dorney v. Department
of the Army, 117 M.S.P.R. 480, ¶ 16 (2012). Here, the appellant sent his
January 6, 2016 email to several agency officials, including the official who
issued the May 4, 2017 proposal to remove him and the official who issued the
June 12, 2017 decision to remove him from Federal service. IAF, Tab 1 at 8-12,
Tab 2 at 2-4, Tab 20 at 5, 13. The appellant’s removal took place within 2 years
of his disclosure. Accordingly, the appellant has made a nonfrivolous allegation
that his January 6, 2016 statements were a contributing factor in his removal.
The appellant made a nonfrivolous allegation that his January 26, 2017
correspondence with agency officials constituted a protected disclosure.
On review, the appellant renews his argument that, given the expertise of
the individuals to whom he sent the audit report, they would have understood him
to be disclosing HIPAA violations in his correspondence forwarding the report.
PFR File, Tab 1 at 4. Below, the appellant alleged that, when he sent the
January 24, 2017 audit report to agency officials, he was disclosing numerous
violations of HIPAA and the Standards for Privacy of Individually Identifiable
Health Information regulations as detailed in the report. IAF, Tab 20 at 7. The
administrative judge found that the appellant had exhausted his administrative
remedies before OSC regarding this disclosure but did not make a nonfrivolous
allegation that the disclosure was protected because, based on the findings in the
report, the appellant could not have had a reasonable belief that the audit
contained such violations, or that his email correspondence with agency officials
reflected such a belief. ID at 14-18. However, the administrative judge focused9
only on the audit report’s statement that the investigation did not find evidence to
support the primary claim that certain clinical procedures were conducted for
research without patient consent. In fact, the audit revealed other improprieties.
IAF, Tab 20 at 33-40; ID at 16. The administrative judge also incorrectly
concluded that the appellant’s allegations were vague and conclusory. ID
at 16-17. To the contrary, the audit report specifically describes the instance of
regulatory noncompliance in relation to one particular database studying
traumatic brain injury and details a Government contractor’s unauthorized
analysis of clinical data. IAF, Tab 20 at 33, 37-39. At a minimum, the appellant
is alleging that each unauthorized use of patient data constitutes a separate
violation of HIPAA and a personal health information data breach. Id. at 7-8;
PFR File, Tab 1 at 4. We find that, in its entirety, the audit report raises
numerous concerns regarding the management of patient data and that the
appellant could have reasonably concluded that it documented HIPAA and related
regulatory violations.
The administrative judge also found that, in disseminating the audit report
to agency officials, the appellant’s communications did not reflect that he
considered the report to document HIPAA or regulatory violations. ID at 17-18.
In doing so, he relied upon the agency’s submissions of the appellant’s
communication of the report to agency officials. Id.; IAF, Tab 21. In
determining whether the appellant has made a nonfrivolous allegation of
jurisdiction, the administrative judge may consider the agency’s documentary
submissions; however, to the extent that the agency’s evidence constitutes mere
factual contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties, and the agency’s evidence may not be
dispositive. Weed v. Social Security Administration , 113 M.S.P.R. 221, ¶ 19
(2010). Below, the appellant submitted two communications to an agency
official, sent shortly after his disclosure of the audit report, in which he10
referenced the violations in the audit report, corroborating his assertion that, in
communicating the audit, he considered it to contain regulatory violations. IAF,
Tab 8 at 26-32. To the extent that the administrative judge weighed the agency’s
evidentiary submissions against those of the appellant and found the agency’s
evidence dispositive, this was error. At the jurisdictional stage, we find that the
appellant’s factual allegations were sufficient to make a nonfrivolous allegation
that he made a protected disclosure of HIPAA and regulatory violations.
Additionally, we find that the appellant nonfrivolously alleged that his
January 26, 2017 disclosure of the audit report was a contributing factor in his
removal. The proposing and deciding officials for the appellant’s removal were
aware that he had communicated the audit report to agency officials, as the
May 4, 2017 proposal to remove the appellant charged him with impeding an
investigation as to how he had obtained the audit. IAF, Tab 2 at 2-4. The
appellant’s June 12, 2017 removal occurred within 6 months of his disclosure of
the audit report. IAF, Tab 1 at 7-12, Tab 20 at 7.
This matter is remanded for a hearing on the merits of the appellant’s IRA appeal.
As set forth above, the appellant has proven that he exhausted his
administrative remedies before OSC and made nonfrivolous allegations that two
protected disclosures were a contributing factor in his removal. Accordingly,
having established Board jurisdiction over his appeal, the appellant is entitled to a
hearing on the merits of his claims. See Graves, 123 M.S.P.R. 434, ¶ 22. This
matter is remanded for a hearing on the merits, in which the administrative judge
shall afford the appellant the opportunity to prove by preponderant evidence that
he made disclosures protected under 5 U.S.C. § 2302(b)(8) and that the protected
disclosures were a contributing factor in the agency’s decision to remove him.
5 U.S.C. § 1221(e)(1); Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6
(2015). If the appellant makes out a prima facie case of reprisal for
whistleblowing, then the agency shall have the opportunity to prove, by clear and11
convincing evidence, that it would have removed the appellant in the absence of
the protected disclosures. 5 U.S.C. § 1221(e)(2); Webb, 122 M.S.P.R. 248, ¶ 6.
ORDER
For the reasons discussed above, we REMAND this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Manion_Sean_T_DC-1221-18-0668-W-1__Remand_Order.pdf | 2024-07-03 | SEAN T. MANION v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-18-0668-W-1, July 3, 2024 | DC-1221-18-0668-W-1 | NP |
1,056 | https://www.mspb.gov/decisions/nonprecedential/Peaks_Colene_M_DC-0752-19-0697-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COLENE MARY PEAKS,
Appellant,
v.
DEPARTMENT OF EDUCATION,
Agency.DOCKET NUMBER
DC-0752-19-0697-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Colene Mary Peaks , Capital Heights, Maryland, pro se.
Eun Kim and Schwanda Rountree , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction because the appellant did not make a
nonfrivolous allegation that her resignation was involuntary. On petition for
review, the appellant alleges that her supervisor abused her power and wasted
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
government time and resources by ordering her to do unnecessary and repetitious
work preventing her from performing other “vital” work. Petition for Review
(PFR) File, Tab 1 at 4-5. She does not address the issue of jurisdiction in her
petition. Id.2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
2 While the appellant claims on review that her supervisor abused her power and wasted
government time and resources, she does not claim that she made a protected disclosure
or that she is the victim of whistleblower retaliation. PFR File, Tab 1 at 4-5. Thus,
these statements do not form a basis for jurisdiction, and we need not address them
further. Additionally, the appellant attaches numerous documents to her petition for
review, some of which were submitted before the administrative judge and some of
which were not filed prior to the close of record below. Id. at 7-126. However, we do
not believe that any of the documents are new or material to the issue of jurisdiction
and therefore we need not consider the documents further. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) (precluding the appellant from presenting evidence
as “new and material” on review when the appellant failed to exercise due diligence in
gathering the evidence prior to the close of the record below). In any event, regarding
the state unemployment tribunal decision, such decisions are not binding on the Board.
Raco v. Social Security Administration , 117 M.S.P.R. 1, ¶ 23 (2011) (stating that state
unemployment decisions are not binding on the Board); PFR File, Tab 1 at 117-26.
Further, the decision does not confirm that the appellant was being harassed by her
supervisor, as she asserted, and there is no relevant information presented in the
decision that is germane to the issue of jurisdiction. PFR File, Tab 1 at 6, 117-26. 2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Because the agency had not issued a final agency decision within 120 days of the
appellant's prior equal employment opportunity complaint at the time she filed the
present Board appeal, and the Board has now issued a Final Order dismissing the appeal
for lack of jurisdiction, the agency is required, under Equal Employment Opportunity
Commission (EEOC) regulations, to reissue a notice under 29 C.F.R. § 1614.108(f)
giving the appellant the right to elect between a hearing before an EEOC administrative
judge and an immediate final decision. See 29 C.F.R. § 1614.302(b).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Peaks_Colene_M_DC-0752-19-0697-I-1__Final_Order.pdf | 2024-07-03 | COLENE MARY PEAKS v. DEPARTMENT OF EDUCATION, MSPB Docket No. DC-0752-19-0697-I-1, July 3, 2024 | DC-0752-19-0697-I-1 | NP |
1,057 | https://www.mspb.gov/decisions/nonprecedential/Steele_Terry_L_DC-1221-19-0379-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRY L. STEELE,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.DOCKET NUMBER
DC-1221-19-0379-W-1
DATE: July 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
August Bequai , Esquire, McLean, Virginia, for the appellant.
Trent Buatte , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant filed an IRA appeal alleging that the agency lowered his
annual performance appraisal in retaliation for the following two disclosures:
(1) his supervisor failed to give him a mid-year performance review in violation
of agency rules and regulations; and (2) agency officials within Overseas
Buildings Operations (OBO) made false statements on a Contract Performance
Assessment Reporting System (CPARS) review of a contractor’s project in
Afghanistan. Initial Appeal File (IAF), Tab 1 at 26-29, Tab 5 at 4-9. He
requested a hearing. IAF, Tab 1 at 4.
The administrative judge dismissed the appeal for lack of jurisdiction.
IAF, Tab 8, Initial Decision (ID) at 1, 8. He found that the appellant’s first
disclosure concerning whether the agency conducted a mid-year performance
review, and if so, when it occurred, was about nothing more than a factual error
or mistake regarding the date of the undocumented review that was corrected by
the appellant’s first-line supervisor immediately after the appellant brought the
error to his attention, and the appellant did not object to the corrected date. ID
at 5. He also found that failure to document a mid-year performance review on a
certain agency form, assuming such a failure took place, is of such a trivial nature
that the appellant could not have reasonably believed that the agency was
violating a law, rule, or regulation. ID at 5-6. Additionally, the administrative
judge found that the appellant failed to nonfrivolously allege that he made a
protected disclosure when he expressed his disagreement with the rating of an
agency contractor’s performance. ID at 6. He found that the appellant failed to
make a nonfrivolous allegation that the contractor’s unsatisfactory rating
amounted to gross mismanagement, a gross waste of funds, or an abuse of
authority. ID at 6-7.2
In his petition for review,2 the appellant contends that the administrative
judge erred in finding that the appellant merely disclosed that his supervisor
misidentified the date of the appellant’s mid-year performance review when his
complaint involved his supervisor directing him to sign a document, thus
acknowledging that a mid-year performance had happened when it had not.
Petition for Review (PFR) File, Tab 2 at 7-8. He also asserts that the
administrative judge erred in finding that the appellant merely disagreed with
management’s proposal to rate a contractor’s performance as unsatisfactory. The
appellant maintains that he disclosed that a CPARS review had been falsified to
cover up management’s incompetence and waste of agency resources. Id. at 8.3
The agency has responded to the appellant’s petition for review, PFR File, Tab 4,
and the appellant has replied to the response, PFR File, Tab 5.
ANALYSIS
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that (1) he made a protected disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)
(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a
2 Attached to the appellant’s petition for review are numerous documents. Because we
are remanding this appeal for further proceedings, we need not discuss the appellant’s
petition-for-review submissions. The appellant will have the opportunity to offer these
documents into the record on remand consistent with the Board’s regulations and the
administrative judge’s instructions.
3 In his petition, the appellant contends that the administrative judge improperly relied
on Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 22 (2016 ), and
Morrall v. Department of Defense , 97 M.S.P.R. 378, ¶ 5 (2004 ), because of factual
differences between those cases and his. PFR File, Tab 2 at 3. However, the
administrative judge properly relied on Graves for the point of law that there is no
statutory right to a jurisdictional hearing in an IRA appeal pursuant to 5 U.S.C. § 1221
and on Morrall for the point of law that the Board’s jurisdiction in an IRA appeal is
determined based on the written record. ID at 2. The factual differences between those
cases and this appeal are not relevant to the proposition for which the administrative
judge cited the cases. 3
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a). Kerrigan v. Department of Labor ,
122 M.S.P.R. 545, ¶ 10 n.2 (2015) (citing 5 U.S.C. §§ 1214(a)(3), 1221(e)(1)),
aff’d, 833 F.3d 1349 (Fed. Cir. 2016); Yunus v. Department of Veterans Affairs ,
242 F.3d 1367, 1371 (Fed. Cir. 2001). A disclosure made to a person who
participated in the activity that is the subject of the disclosure or a disclosure
made during the normal course of duties of an employee is not excluded from an
IRA claim. 5 U.S.C. § 2302(b)(8); Day v. Department of Homeland Security ,
119 M.S.P.R. 589, ¶¶ 18-26 (2013). Once an appellant establishes jurisdiction
over his IRA appeal, he is entitled to a hearing on the merits of his claim.
Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661,
¶ 9 (2015).
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Mudd v.
Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 8 (2013). The categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8) are the following: a violation of
any law, rule, or regulation; gross mismanagement; a gross waste of funds; an
abuse of authority; or a substantial and specific danger to public health or safety.
See Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 12 (2014). The test to
determine whether a putative whistleblower has a reasonable belief in the
disclosure is an objective one: whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by the employee could
reasonably conclude that the actions of the agency evidenced one of the
categories of wrongdoing set forth above. Lachance v. White , 174 F.3d 1378,
1381 (Fed. Cir. 1999); Linder, 122 M.S.P.R. 14, ¶ 12. The disclosure must be
specific and detailed, not a vague allegation of wrongdoing. Linder,
122 M.S.P.R. 14, ¶ 14; Rzucidlo v. Department of the Army , 101 M.S.P.R. 616,4
¶ 13 (2006); Keefer v. Department of Agriculture , 82 M.S.P.R. 687, ¶ 11 (1999).
Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of finding jurisdiction.
Rzucidlo, 101 M.S.P.R. 616, ¶ 14.
The parties do not dispute, and we find no reason to disturb, the
administrative judge’s finding that the appellant exhausted his administrative
remedies before OSC based on his allegation that he was being retaliated against
for whistleblowing disclosures. ID at 5 n.2; IAF, Tab 1 at 76-82; see 5 U.S.C.
§ 1214(a)(3)(B).4 However, as explained below, we find that the administrative
judge erred in finding that the appellant failed to make a nonfrivolous allegation
that he disclosed a matter that a reasonable person in his position would believe
evidenced a violation of 5 U.S.C. § 2302(b)(8).
The appellant made a nonfrivolous allegation that he made a protected disclosure
that his supervisor failed to give him a mid-year performance review in violation
of agency regulations.
The appellant has consistently alleged that he disclosed that his supervisor
failed to give him a mid-year performance review in violation of agency
regulations. In a submission to OSC, the appellant stated that there was “not any
mid-year review.” IAF, Tab 1 at 28. Again, in his response to the administrative
judge’s jurisdictional order, the appellant repeated his statement that there was
“not any mid-year review.” IAF, Tab 5 at 7. Moreover, the appellant identified
the agency regulatory provision violated by a supervisory failure to give an
employee a mid-year performance review. Id. at 9.
The administrative judge, however, characterized the appellant’s disclosure
as a difference between himself and his supervisor about the date that the
mid-year performance review took place. ID at 5. The administrative judge
4 OSC at first stated that the appellant received his performance appraisal before May
2017. IAF, Tab 1 at 78 n.1. Subsequently, however, OSC corrected the record to note
that the appellant’s appraisal was first entered on July 27, 2017, id. at 76, and that thus,
the appellant’s alleged disclosures predated his appraisal and he had exhausted his
administrative procedures regarding them.5
found that the appellant’s disclosure appeared to concern nothing more than a
factual error or mistake about the date of the mid-year performance review that
was corrected by his first-line supervisor immediately after it was brought to his
attention by the appellant. Id. In support of this finding, the administrative judge
relied on the agency’s submission of email documentation from February 2017
reflecting that the appellant and his supervisor discussed when the mid-year
performance review was held, and that, although the appellant’s supervisor first
noted it took place in September 2016, after discussion with the appellant, he
changed course and noted it occurred in June 2016. Id.
In determining whether the appellant has made a nonfrivolous allegation of
jurisdiction entitling him to a hearing, the administrative judge may consider the
agency’s documentary submissions; however, to the extent that the agency’s
evidence constitutes mere factual contradiction of the appellant’s otherwise
adequate prima facie showing of jurisdiction, the administrative judge may not
weigh evidence and resolve conflicting assertions of the parties, and the agency’s
evidence may not be dispositive . Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325,
329 (1994). Here, the administrative judge erroneously relied on the agency’s
evidence to determine that the appellant failed to make a nonfrivolous allegation
of retaliation for making a protected disclosure. The agency’s evidence showing
that the appellant’s supervisor changed the date that he represented that the
mid-year performance review occurred constitutes mere factual contradiction of
the appellant’s allegation that his supervisor violated agency regulations by
failing to give the appellant any mid-year performance review before giving the
appellant his final appraisal.
There is no de minimis exception for a disclosure involving a violation of
law, rule, or regulation falling within the scope of 5 U.S.C. § 2302(b)(8)(A)(i).
Fisher v. Environmental Protection Agency , 108 M.S.P.R. 296, ¶ 9 (2008).
Accordingly, we find that, through his written submissions, the appellant made a
nonfrivolous allegation that he had a reasonable belief that his supervisor failed6
to give him a mid-year performance review and that such failure evidenced a
violation of rule, or regulation.
The appellant made a nonfrivolous allegation that his purported protected
disclosure that his supervisor failed to give him a mid-year performance review in
violation of agency regulations was a contributing factor in the agency’s decision
to lower his annual performance appraisal.
To satisfy the contributing factor criterion at the jurisdictional stage of an
IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact
or the content of the protected disclosure was one factor that tended to affect the
personnel action in any way. Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 13 (2016). One way to establish this criterion is the knowledge/timing
test, under which an employee may nonfrivolously allege that the disclosure was
a contributing factor in a personnel action through circumstantial evidence, such
as evidence that the official who took the personnel action knew of the disclosure
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id. An appellant may meet the knowledge portion of the
knowledge/timing test by showing that the official taking the action had
constructive knowledge of the protected disclosure, even if the official lacked
actual knowledge, by demonstrating that an individual with actual knowledge of
the disclosure influenced the official accused of taking the retaliatory action. See
Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 7 (2014).
Here, the appellant alleged that, in February 2017, his supervisor asked him
to acknowledge receipt of the mid-year performance review, and he denied that
such review had occurred and expressed his view that the supervisor’s failure to
give him a mid-year review was a violation of agency regulations. IAF, Tab 1
at 28. Further, in May 2017, the appellant met with the human resources office.
The meeting was memorialized in writing, and the appellant submitted that
document into the record. Id. at 58-60. According to that document, the Human7
Resources Branch Chief stated that she would follow up with the appellant’s
supervisor regarding the appellant’s issues with his appraisal. Id. at 60.
Under these circumstances, the appellant has nonfrivolously alleged that
his supervisor had actual or constructive knowledge of his disclosure. Further,
the appellant received his performance appraisal in July 2017, about 5 months
after his meeting with his supervisor and about 2 months after his meeting with
human resource officials. Given this timing, the personnel action occurred within
a period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. See Benton-Flores v.
Department of Defense , 121 M.S.P.R. 428, ¶ 13 (2014) (finding that a gap of less
than 6 months between a disclosure and a personnel action is sufficiently
proximate to satisfy the timing prong of the knowledge/timing test). Thus, the
appellant has established jurisdiction over his assertion that the agency retaliated
against him for his disclosure that his supervisor failed to give him a mid-year
performance review.
The appellant made a nonfrivolous allegation that he made a protected disclosure
that agency officials made false statements on the CPARS review of a contractor.
The appellant also consistently alleged that he disclosed that agency
officials falsified the CPARS review of a specific contractor. Shortly after he
learned of the proposed unsuccessful rating for the contractor in February 2016,
the appellant told his second-level supervisor that the CPARS comments were
false. IAF, Tab 1 at 36. Additionally, the human resources office record of the
May 2017 discussion with the appellant shows that the appellant disclosed that
his supervisor was trying to get the appellant to falsify the CPARS review for a
specific project in Afghanistan. Id. at 58.
As noted, the administrative judge characterized the appellant’s alleged
disclosure as a disagreement with the rating of a contractor’s performance. ID
at 6. He found that the appellant failed to show that the disagreement established
one of the types of wrongdoing set forth in 5 U.S.C. § 2302(b)(8). ID at 6-8. The8
administrative judge’s finding, however, failed to consider the appellant’s
phrasing of his allegation, that the CPARS review was falsified, and whether the
appellant’s falsification allegation constituted a reasonable belief of a violation of
5 U.S.C. § 2302(b)(8).
The record shows that the appellant explained the basis for his belief that
the CPARS review was falsified, i.e., that he had different information about the
contractor that did not support the unsatisfactory ratings in the CPARS review,
apparently gleaned from his three trips to Afghanistan. IAF, Tab 1 at 58, Tab 5
at 8. The appellant also supports his assertion that he had a reasonable belief that
the CPARS review was falsified by reference to his position with the agency
involving highly specialized expertise in international construction, IAF, Tab 1
at 28, and his observation that the CPARS review did not match up with OBO
facilities reports or his own observations, id. at 36. Nothing in the record
contradicts the appellant’s assertion that he was in a position to observe the
contractor during his trips to Afghanistan, validating the reasonableness of his
belief that the CPARS review was falsified. See Johns v. Department of Veterans
Affairs, 95 M.S.P.R. 106, ¶¶ 9-10 (2003) (finding that the appellant made a
nonfrivolous allegation of a protected disclosure because the appellant based his
disclosures on his first-hand detailed observations). Under these circumstances,
we find that the appellant made a nonfrivolous allegation that he had a reasonable
belief that the CPARS review was falsified, constituting a violation of § 2302(b)
(8). See Reeves v. Department of the Army , 99 M.S.P.R. 153, ¶ 14 (2005)
(finding that, because the appellant was allegedly required to qualify with and
maintain proficiency in the use of a firearm, a reasonable person with his
knowledge could conclude that his allegations regarding falsification of weapons
qualifications scores evidenced a violation of law or an abuse of authority). 9
The appellant made a nonfrivolous allegation that his purported protected
disclosure that agency officials made false statements on the CPARS review of a
contractor was a contributing factor in the agency’s decision to lower his annual
performance appraisal.
Applying the knowledge/timing method of showing contributing factor, the
appellant made a nonfrivolous allegation of contributing factor regarding his
allegation that the agency falsified the CPARS review. He asserted that he copied
his supervisor on memoranda in which he expressed his opinion about the
unsatisfactory CPARS review that was proposed in February 2016, IAF, Tab 1
at 33, 36, and he disclosed the falsification of the CPARS review during his
meeting with the human resources office in May 2017, prompting the Human
Resources Branch Chief to state that she would follow up with the appellant’s
supervisor regarding the appellant’s allegations and complaints. Id. at 60. Thus,
the appellant made a nonfrivolous allegation that his supervisor had actual or
constructive knowledge of his disclosure, and he met the knowledge prong of the
knowledge/timing test. See Salerno, 123 M.S.P.R. 230, ¶ 13. Further, his
disclosures occurred within 17 and 2 months, respectively, of his performance
review. Thus, he met the timing prong of the knowledge/timing test. See
Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶¶ 18, 21 (2015)
(explaining that the knowledge/timing test allows an employee to demonstrate
that a protected disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the disclosure, and that the personnel action occurred within 1 to 2
years of the appellant’s disclosures). Thus, the appellant has established
jurisdiction over his assertion that the agency retaliated against him for his
disclosure that the CPARS review of an agency contractor was falsified.5
5 In his petition, the appellant alleges that he made a number of protected disclosures in
addition to disclosing that his supervisor failed to give him a mid-year performance
review in violation of agency regulations and that the agency falsified a CPARS review.
PFR File, Tab 2 at 4-5. However, the appellant failed to show that he exhausted his
administrative remedies regarding these alleged disclosures, and thus they are not
before the Board. See Coufal v. Department of Justice , 98 M.S.P.R. 31, ¶ 14 (2004)10
ORDER
For the reasons discussed above, we VACATE the initial decision and
REMAND this case to the Washington Regional Office for the hearing that the
appellant requested and further adjudication in accordance with this Remand
Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
(stating that the Board's jurisdiction in an IRA appeal is limited to issues raised before
OSC). 11 | Steele_Terry_L_DC-1221-19-0379-W-1__Remand_Order.pdf | 2024-07-03 | TERRY L. STEELE v. DEPARTMENT OF STATE, MSPB Docket No. DC-1221-19-0379-W-1, July 3, 2024 | DC-1221-19-0379-W-1 | NP |
1,058 | https://www.mspb.gov/decisions/nonprecedential/Schultz__Denise_D_DC-0752-20-0278-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENISE DESTRILL SCHULTZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-20-0278-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Denise Destrill Schultz , Fairfax, Virginia, pro se.
Casey Hinson , Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely filed without good cause shown.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant reasserts her argument that she did not
receive the agency’s decision letter until December 12, 2019. Petition for Review
(PFR) File, Tab 2 at 98; Initial Appeal File (IAF), Tab 8 at 7.2 We discern no
reason to disturb the initial decision based on this argument, which the
administrative judge properly addressed and rejected in the initial decision. IAF,
Tab 13, Initial Decision at 5-6. We further find that the appellant’s remaining
arguments on the merits of the appeal are immaterial to the dispositive timeliness
issue. PFR File, Tab 2 at 98-111; see Dow v. Department of Homeland Security ,
109 M.S.P.R. 633, ¶ 8 (2008) (finding that the appellant’s assertions and
submissions concerning the merits of his appeal did not establish good cause for
waiving the filing deadline because they did not pertain to the timeliness issue).
Accordingly, we affirm the initial decision dismissing this appeal as
untimely filed without good cause shown.
2 In addition, the appellant has resubmitted documentation that already is a part of the
record before the administrative judge. Compare PFR File, Tab 1 at 5-138, Tab 2
at 5-95, 113-203, with IAF, Tab 6 at 13-151, 153.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Schultz__Denise_D_DC-0752-20-0278-I-1__Final_Order.pdf | 2024-07-03 | DENISE DESTRILL SCHULTZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-20-0278-I-1, July 3, 2024 | DC-0752-20-0278-I-1 | NP |
1,059 | https://www.mspb.gov/decisions/nonprecedential/Lee_DongwookAT-0752-19-0251-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONGWOOK LEE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-19-0251-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant.
Anne M. Norfolk , Esquire, Fort Benning, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Effective December 14, 2018, the appellant resigned from his position as a
GS-14 Clinical Psychologist (Neuropsychology) in the Traumatic Brain Injury
Clinic (clinic) at Martin Army Community Hospital in Fort Benning, Georgia.
Initial Appeal File (IAF), Tab 8 at 4, Tab 11 at 13. In his resignation letter, the
appellant stated that he was resigning due to a “continuous hostile and
discriminatory work environment.” IAF, Tab 8 at 4.
The appellant filed an appeal with the Board and requested a hearing,
alleging that his resignation was involuntary. IAF, Tab 1. On his Board appeal
form, the appellant claimed that he was forced to resign due to an ongoing hostile
work environment, racial d iscrimination, and retaliation for his whistleblowing
and protected equal employment opportunity (EEO) activities. Id. at 4. He also
stated that he was forced to resign because management was planning on
removing him. Id. at 5.
The administrative judge issued an order informing the appellant that a
resignation is presumed to be voluntary and that he would be granted a hearing2
only if he made allegations of duress, coercion, or misrepresentation supported by
facts which, if proven, could show that his resignation was involuntary. IAF,
Tab 2 at 2. The administrative judge ordered the appellant to submit evidence
and argument constituting a nonfrivolous allegation that his involuntary
resignation claim is within the Board’s jurisdiction. Id. at 3. Both parties filed
responses on the jurisdictional issue, IAF, Tabs 5, 10, and the agency moved to
dismiss the appeal for lack of jurisdiction, IAF, Tab 10.
Without holding a hearing, the administrative judge issued an initial
decision that dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to nonfrivolously allege that his resignation was involuntary.
IAF, Tab 18, Initial Decision (ID) at 9.
The appellant has filed a petition for review and a motion to accept the
petition for review as timely or to waive the time limit.2 Petition for Review
(PFR) File, Tabs 1, 5. The agency has filed a response in opposition to the
petition for review. PFR File, Tab 6.
ANALYSIS
The administrative judge correctly dismissed the appellant’s involuntary
resignation appeal for lack of jurisdiction.
Generally, the Board lacks the authority to review an employee’s decision
to resign, which is presumed to be a voluntary act. Brown v. U.S. Postal Service ,
115 M.S.P.R. 609, ¶ 9, aff’d sub nom. Brown v. Merit Systems Protection Board ,
469 F. App’x 852 (Fed. Cir. 2011). An involuntary resignation, however, is
tantamount to a removal and is therefore subject to the Board’s jurisdiction.
Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007). An
employee may overcome the presumption of voluntariness by showing that his
resignation was the product of misinformation or deception by the agency, or of
coercive acts by the agency, such as intolerable working conditions or the
2 Because we are denying the appellant’s petition for review on the merits, we find it
unnecessary to consider the timeliness of the petition for review.3
unjustified threat of an adverse action. SanSoucie v. Department of Agriculture ,
116 M.S.P.R. 149, ¶ 14 (2011). The Board addresses allegations of
discrimination and reprisal in connection with an alleged involuntary resignation
only insofar as those allegations relate to the issue of voluntariness and not
whether they would establish discrimination or reprisal as an affirmative defense.
Vitale, 107 M.S.P.R. 501, ¶ 20. If the employee makes a nonfrivolous allegation
of jurisdiction, i.e., an allegation that, if proven, could establish the Board’s
jurisdiction, he is entitled to a hearing at which he must prove jurisdiction by a
preponderance of the evidence. Id., ¶ 18.
When, as here, an employee alleges that the agency took actions that made
working conditions so intolerable that he was forced to resign, the Board will
find his resignation involuntary only if he demonstrates that the agency engaged
in a course of action that made working conditions so difficult or unpleasant that
a reasonable person in his position would have felt compelled to resign.
Markon v. Department of State , 71 M.S.P.R. 574, 577 (1996). The doctrine of
coerced involuntariness is “a narrow one” that applies when a decision to resign
“was the result of improper acts by the agency” and not merely when an employee
resigns because “he does not want to accept [measures] that the agency is
authorized to adopt, even if those measures make continuation in the job so
unpleasant for the employee that he feels that he has no realistic option but to
leave.” Staats v. U.S. Postal Service , 99 F.3d 1120, 1124 (1996). “[T]he fact
than an employee is faced with an unpleasant situation or that his choice is
limited to two unattractive options does not make his decision any
less voluntary.” Id. The touchstone of the voluntariness analysis is whether,
considering the totality of the circumstances, factors operated on the
employee’s decision-making process that deprived him of freedom of choice.
Searcy v. Department of Commerce , 114 M.S.P.R. 281, ¶ 12 (2010).4
In his response to the jurisdictional order, the appellant recounted a series
of events that purportedly forced him to resign. IAF, Tab 5. In particular, the
appellant alleged as follows:
During a meeting on April 11, 2018, a primary care physician (PCP)
demanded that all of his referrals to Neuropsychology receive a comprehensive
evaluation and that the appellant change the format and content of his
neuropsychology reports. IAF, Tab 5 at 7. The appellant told the PCP that
asking him to write an important clinical document to the PCP’s own liking was
unprofessional and insulting. Id. When the appellant challenged the PCP’s
“clinical practice,” the PCP yelled at the appellant, saying, “You do whatever you
want, and I am not going to talk to you anymore,” and the PCP then left the room.
Id. at 8. The appellant’s supervisor did not intervene on his behalf; instead, she
stated that the appellant should comply with the PCP’s demands. Id.
On August 8, 2018, the appellant discovered that the PCP was sending
Attention Deficit Hyperactivity Disorder (ADHD) evaluation requests to a
Caucasian clinical psychologist who was not qualified to perform neurocognitive
evaluation, and whose scope of practice did not include ADHD evaluation,
thereby bypassing and undermining the appellant, who performed neurocognitive
evaluations as his primary service, and whose scope of practice included ADHD
evaluation. Id. at 8-9.
During a meeting on August 29, 2018, the appellant’s supervisor approved
a treatment plan proposed by a Caucasian occupational therapist with no expertise
or training in neurocognitive evaluation over the appellant’s objections that the
plan could result in a waste of resources. Id. at 9-10.
During an October 2, 2018 meeting, the appellant informed his supervisor
and the clinic administrator that a psychology technician (PT), who also attended
the meeting, had erroneously sent treatment notes pertaining to the appellant’s
biofeedback patients to the PCP for signature/approval instead of the appellant,
and had failed to provide the appellant updates on his biofeedback patients, as he5
had repeatedly requested. Id. at 10-13. The appellant’s supervisor concluded that
the appellant’s dispute with the PT was a matter of miscommunication and
ignored his request to correct the PT’s errors and lack of cooperation. Id. at 13.
On November 5, 2018, six days after the appellant’s supervisor was
interviewed by an EEO counselor regarding the appellant’s EEO claim, she issued
him a Letter of Warning, IAF, Tab 8 at 35-36, citing his conduct during the
August 29 and October 2, 2018 meetings and threatening further disciplinary
action. IAF, Tab 5 at 13-14.
The appellant was not interviewed during a staff assistance visit (SAV)
conducted on November 6-7, 2018, and the hospital commander ignored his
request that the SAV be conducted by staff who had no previous contact with
clinic leadership. Id. at 15.
On several occasions, the appellant notified clinic management that the
PCP had engaged in malpractice; however, they failed to address his concerns.
Id. at 14. He also informed his second-level supervisor that his immediate
supervisor had sided with the PCP against him and that his work environment was
discriminatory and hostile based on his race and national origin. Id.
In his response to the jurisdictional order, the appellant further claimed
that: he felt helpless when he realized that the agency was acting against him and
“tried to get rid of him”; he feared that he could lose his license due to the PT’s
misconduct; two of his colleagues were forced to leave their positions due to
discrimination; and the stressful situation at work caused him to suffer chronic
headaches, insomnia, and chronic fatigue, and was harmful to his family,
spiritual, and emotional life. Id. at 16-17.
In the initial decision, the administrative judge considered the
circumstances described by the appellant and concluded as follows: “I do not
find that the facts as alleged by the appellant made working conditions so
difficult or unpleasant that a reasonable person in his position would have felt
compelled to resign.” ID at 9 (citing Markon, 71 M.S.P.R. at 577-78). In making6
this finding, the administrative judge observed that the appellant’s complaints
largely result from management’s decisions concerning his field and that he was
“undeniably frustrated” when his coworkers disagreed with his recommendations
as to how the clinic should conduct neurocognitive evaluations. ID at 8.
However, the administrative judge found that the agency has the right to make
these decisions and the appellant’s strong disagreement with these decisions does
not make his resignation involuntary. Id.
In addition, the administrative judge found unpersuasive the appellant’s
arguments that he was forced to resign because his supervisor was “trying to get
rid of” him or that he “could lose his license.” Id. The administrative judge
found that both of these allegations were based on mere supposition. Id.
Moreover, the administrative judge explained that, if the agency had taken an
actual removal action against him, he could have appealed that action to the
Board. Id. (citing Garcia v. Department of Homeland Security , 437 F.3d 1322,
1329 (Fed. Cir. 2006) (en banc) (stating that a resignation is not involuntary if the
employee had a choice of whether to resign or contest the validity of the agency
action)).
As for the appellant’s allegations of discrimination, the administrative
judge found that most of these allegations were based on suppositions that
minority coworkers were subjected to discriminatory animus and the mere fact
that some of the neurocognitive evaluation work was sent to a Caucasian. ID
at 8. The administrative judge concluded that these facts alone do not show that
the appellant was subjected to intolerable working conditions. ID at 8-9. The
administrative judge also found that, although the appellant did not like working
at the clinic, his allegations did not show that his resignation was the result of
improper pressure, intimidation, or coercion by the agency. ID at 9.
Accordingly, the administrative judge found that the appellant failed to make a
nonfrivolous allegation of facts which, if proven, could show that his resignation
was involuntary. Id.7
The appellant challenges this finding on review and reiterates his argument
from below that he was forced to resign due to intolerable working conditions.3
PFR File, Tab 1 at 10-25; IAF, Tab 5 at 6-18. He alleges that, in addressing his
allegations of intolerable working conditions, the administrative judge omitted or
mischaracterized several relevant facts4 and failed to consider the totality of the
circumstances from April to December 2018, which culminated in his resignation,
in order to conclude: “While I understand that the appellant was increasingly
frustrated with the clinic’s policy and processes in neuropsychology, I do not find
that the facts as alleged left him no choice but to resign.” PFR File, Tab 1 at 18
(quoting ID at 7-8).
The appellant argues that, by characterizing the circumstances that
precipitated his resignation as mere “policy and process” issues, the
administrative judge grossly misrepresented the facts while entirely ignoring
“incompetence, mismanagement, mishandling of patients[,] and medical
treatments bordering on medical malpractice and seriously posing a risk to [the]
[a]ppellant’s own medical license and professional reputation.” Id. at 19.
The gist of the appellant’s arguments regarding the jurisdictional issue is
that, by omitting some facts and mischaracterizing others, the administrative
judge minimized the difficulty and unpleasantness of his working conditions so
that she could find that he failed to nonfrivolously allege that his working
conditions were so difficult or unpleasant that a reasonable person in his position
would have felt compelled to resign. Id. at 10-24.
These arguments provide no basis to disturb the initial decision. It is well
settled that the administrative judge’s failure to mention all of the evidence of
3 The portion of the petition for review challenging the administrative judge’s
jurisdictional determination is largely the same as the appellant’s response to the
jurisdictional order. Compare PFR File, Tab 1 at 11-18, 20-24, with IAF, Tab 5 at 7-17.
4 For example, the appellant asserts that the administrative judge “entirely neglected” to
mention the “medical deterioration [and] the social and emotional degradation [he]
suffered as a result of the intolerable working conditions.” PFR File, Tab 1 at 22.8
record does not mean that she did not consider it in reaching her decision.
Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132
(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Moreover, based on our review of the record, we agree with the
administrative judge that the appellant failed to make a nonfrivolous allegation of
Board jurisdiction over this appeal. ID at 9. An employee is not guaranteed a
working environment free of stress. Dissatisfaction with work assignments, a
feeling of being unfairly criticized, or difficult or unpleasant working
conditions are generally not so intolerable as to compel a reasonable person to
resign. Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 32 (2000).
Further, as the administrative judge correctly found, the appellant’s
allegation that management officials were planning to remove him at the time he
resigned does not render his resignation involuntary. ID at 8. The appellant did
not allege that the agency had even proposed such an action when he resigned.
Thus, instead of resigning based on his speculation that such an action might
occur in the future, the appellant clearly had an option of contesting an action he
thought was invalid if and when it did occur. See Garcia, 437 F.3d at 1329.
Also, even if the appellant genuinely felt that he had no alternative but to
resign, in part due to his medical conditions, he failed to make a sufficient
allegation of a coercive or improper act on the part of the agency that could have
left a reasonable person in his position with no other choice but to resign. See
Brown, 115 M.S.P.R. 609, ¶ 17 (finding that, even if the appellant’s medical
condition left her no alternative but to retire, she failed to tie her circumstances to
an improper agency act that could have left a reasonable person in her position
with no choice but to resign). Therefore, we find that the administrative judge
properly dismissed this appeal for lack of jurisdiction. ID at 9.9
The appellant’s remaining arguments on review provide no basis to disturb the
initial decision.
The appellant’s petition for review contains several other arguments that
are unavailing. For example, the appellant argues that the administrative judge
erred by allowing the agency to file pleadings without designating its
representative. PFR File, Tab 1 at 6-7. However, he has failed to articulate how
this purported error relates to his jurisdictional burden in the instant appeal.
For the first time on review, the appellant objects to the deadlines set forth
in the acknowledgement and jurisdictional orders dated February 15, 2019. Id.
at 5-9; IAF, Tabs 2-3. In particular, the appellant contends that the administrative
judge abused her discretion by requiring him to submit evidence and argument
establishing a nonfrivolous allegation of Board jurisdiction by February 25, 2019,
yet affording the agency until March 7, 2019, to submit the agency file and
respond to the jurisdictional order. PFR File, Tab 1 at 5-7. The appellant asserts
that not having the opportunity to review the agency file before responding to the
jurisdictional order “ gravely prejudiced” him because, without knowing the
agency’s position regarding the circumstances that allegedly forced him to resign,
his response to the order was not as effective as it could have been had he been
allowed to obtain the agency file before submitting his response. Id. at 7.
The Board will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Banks v. Department
of the Air Force , 4 M.S.P.R. 268, 271 (1980). The appellant did not raise any
objection below to the deadlines set by the administrative judge and presents no
evidence, let alone new and material evidence, to support his argument that he
was prejudiced by those deadlines. PFR File, Tab 1. Therefore, we do not
consider the appellant’s new argument. See Banks, 4 M.S.P.R. at 271.
The appellant also reiterates his argument from below that the agency file
is untimely because it was due on March 7, 2019, but the Board did not receive it10
until March 11, 2019. PFR File, Tab 1 at 6; IAF, Tab 15. The agency file was
submitted by mail and we are unable to determine the postmark date because
the record does not include a copy of the envelope in which the agency’s file was
mailed. IAF, Tab 11 at 1. Therefore, the agency’s file is timely under
5 C.F.R. § 1201.4(l) (providing that the date of a filing by mail is the postmark
date and, if no legible postmark date appears on the mailing, the submission is
presumed to have been mailed 5 days before its receipt (excluding days on which
the Board is closed for business)).
The appellant argues that the administrative judge’s statement that “there is
no factual dispute bearing on the jurisdictional issue” suggests that she dismissed
the appeal by summary judgment, which the Board does not allow. PFR File,
Tab 1 at 9; see Crispin v. Department of Commerce , 732 F.2d 919, 922 (Fed. Cir.
1984) (holding that summary judgment is not available in Board proceedings).
The initial decision clearly shows that the administrative judge dismissed the
appeal for lack of jurisdiction based on her finding that the appellant failed to
make a nonfrivolous allegation of facts which, if proven, could show that his
resignation was involuntary. ID at 1, 9.
The appellant further alleges that the administrative judge erred by
dismissing his hearing request without providing him an adequate opportunity to
engage in discovery, and he contends that the jurisdictional questions could have
been better resolved by conducting a hearing. PFR File, Tab 1 at 8. An appellant
is not entitled to a hearing on the issue of Board jurisdiction over an appeal of an
alleged involuntary resignation unless he makes a nonfrivolous allegation casting
doubt on the presumption of voluntariness. Searcy, 114 M.S.P.R. 281, ¶ 12. The
Board has also found that an appellant is not entitled to discovery when he fails to
raise a nonfrivolous allegation of the Board’s jurisdiction. See Sobczak v.
Environmental Protection Agency , 64 M.S.P.R. 118, 122 (1994) (finding that the
administrative judge properly denied discovery because the appellant failed to
plead facts sufficient to establish jurisdiction). As discussed above, the appellant11
failed to make a nonfrivolous allegation of Board jurisdiction regarding his
involuntary resignation claim. Thus, the appellant was not entitled to either a
jurisdictional hearing or discovery based on that claim.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.12
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on13
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or14
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Lee_DongwookAT-0752-19-0251-I-1__Final_Order.pdf | 2024-07-03 | DONGWOOK LEE v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-19-0251-I-1, July 3, 2024 | AT-0752-19-0251-I-1 | NP |
1,060 | https://www.mspb.gov/decisions/nonprecedential/Kone_ZiePH-0752-18-0348-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ZIE KONE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-18-0348-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brian Deinhart , Esquire, Albany, New York, for the appellant.
Richard Dale , Newport, Rhode Island, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to correct the legal standards for evaluating the charge and the
appellant’s affirmative defense of reprisal for his prior Board appeals, we
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2The appellant, a Scientist, previously filed two Board appeals concerning
adverse actions taken against him. Kone v. Department of the Navy , MSPB
Docket No. PH-0752-13-0217-I-3, Final Order (Feb. 27, 2015) (0217 Final
Order). The appeals were joined for processing and the Board issued a Final
Order reversing the agency’s suspension and reducing the removal to a 30-day
suspension. Id.; Kone v. Department of the Navy , MSPB Docket Nos.
PH-0752-13-0217-I-3, PH-0752-13-0413-I-2, Initial Decision at 1 (May 27,
2014). The administrative judge found, and the parties do not dispute, that the
individuals involved in the prior actions did not play a role in the removal at issue
in the instant appeal. Kone v. Department of the Navy , MSPB Docket No.
PH-0752-18-0348-I-1, Initial Appeal File (IAF), Tab 40, Initial Decision (ID)
at 9-10.
¶3In April 2017, the appellant requested leave under the Family and Medical
Leave Act (FMLA), which the agency approved. IAF, Tab 4 at 12, Tab 282
at 53-55. The appellant exhausted his 480 hours of FMLA-protected leave in
July 2017. IAF, Tab 28 at 53-55. The appellant was then absent from work for
39 consecutive days, from January 9 through March 8, 2018. Id. at 26-27, 55.
On some of the days he was absent, the appellant texted his first-level supervisor
to let him know he would not be in the office that day for various reasons. IAF,
Tab 14 at 16-29, Tab 15 at 4-17. For example, from early- to mid-January 2018,
the appellant stated he was “not well” or “ill.” IAF, Tab 14 at 16-20. Beginning
on January 17, 2018, he indicated he was seeking treatment at a clinic, and later a
hospital. Id. at 21, 25, 27. Ultimately, in early February 2018, he referred to
being scheduled for, and having, unidentified “procedures.” IAF, Tab 15 at 4-8.
Later that month through April 2018, he indicated he was suffering from a
“relapse” or relapses. Id. at 6-8, 12. On at least six different occasions, the
appellant’s supervisor texted back that the appellant was absent without leave
(AWOL). IAF, Tab 14 at 18-19, 22, Tab 15 at 6, 9, 11, 13, 16.
¶4On February 1, 2018, the agency issued a letter to the appellant that
informed him that he had been absent since January 9, 2018, he was being
designated as AWOL, and if he did not return to work by February 9, 2018, his
removal would be proposed. IAF, Tab 4 at 28. The appellant did not respond to
the February 1, 2018 letter and did not return to work. IAF, Tab 28 at 27, 55. On
March 18, 2018, the appellant’s second-level supervisor proposed his removal
based on 39 specifications of AWOL, which concerned the appellant’s absence on
January 2, 2018, and from January 9 through March 8, 2018. IAF, Tab 4
at 22-27. After the appellant failed to reply, the agency removed him, effective
May 7, 2018. Id. at 12-15.
¶5The appellant timely filed an appeal to the Board and requested a hearing.
IAF, Tab 1 at 2. He did not dispute that he was absent during the period at issue,
but rather argued that some or all of this absence was protected under the FMLA.
Id. at 6. He raised the affirmative defense of reprisal for his prior Board appeals.
Id. Following a hearing, the administrative judge issued an initial decision3
sustaining the removal action. ID at 1. Although she did not sustain the
January 2, 2018 specification, she sustained the remaining 39 specifications.2 ID
at 4, 9. The administrative judge found that the appellant failed to prove his
claim that the agency violated his rights under FMLA because he had already
exhausted all the FMLA-protected leave to which he was entitled for that
12-month period. ID at 5. She also found that the appellant had not shown that
his prior Board appeals were a motivating factor in the removal. ID at 13. She
further found that the agency proved a nexus between the appellant’s misconduct
and the efficiency of the service, and deferred to the deciding official’s penalty
determination. ID at 14-16.
¶6The appellant has timely filed a petition for review. PFR File, Tab 1. The
agency has filed a response, to which the appellant has replied. PFR File,
Tabs 5-6.3
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the AWOL charge but applied the
incorrect burden to the related FMLA claim.
¶7On review, the appellant does not dispute the administrative judge’s finding
that he was AWOL as charged. We see no reason to disturb this finding. ID
at 2-9. However, we modify the administrative judge’s finding that the agency
proved its AWOL charge to apply the correct standard. To prove an AWOL
charge, an agency must establish that an employee was absent and either his
absence was not authorized or his request for leave was properly denied. Little v.
Department of Transportation , 112 M.S.P.R. 224, ¶ 6 (2009); Boscoe v.
2 As observed by the administrative judge, although there are 39 total specifications,
there are two specifications 20 itemized. IAF, Tab 4 at 23; ID at 2 n.2. Thus, there are
40 total specifications. IAF, Tab 4 at 23-24; ID at 2 n.2.
3 The appellant’s reply was initially due on or before December 31, 2018, but the filing
deadline was extended due to the partial Government shutdown from December 22,
2018, through January 25, 2019. Thus, his reply was timely. We therefore find it
unnecessary to address his motion seeking to waive the time limit for his reply. PFR
File, Tab 7. 4
Department of Agriculture , 54 M.S.P.R. 315, 325 (1992). Thus, when FMLA is
implicated relative to an AWOL charge, the agency, not the appellant, must prove
that it complied with the FMLA as part of its overall burden of proving the
AWOL charge. Fairley v. U.S. Postal Service , 82 M.S.P.R. 588, 590-91 (1999).
Here, however, the administrative judge improperly shifted the burden of proof to
the appellant to prove his FMLA claim. ID at 5.
¶8The FMLA allows an employee to take up to 12 weeks of leave per year,
paid or unpaid, for various purposes, including his own serious health condition
that renders him unable to perform the duties of his position. See 5 U.S.C.
§ 6382(a)(1)(D); Dias v. Department of Veterans Affairs , 102 M.S.P.R. 53, ¶ 5
(2006), aff’d per curiam, 223 F. App’x 986 (Fed. Cir. 2007); 5 C.F.R.
§ 630.1203(a)(4). The 12-month leave period “begins on the date an employee
first takes leave [under the FMLA] and continues for 12 months” and an
employee is not entitled to additional leave under the FMLA “until the previous
12-month period ends.” 5 C.F.R. § 630.1203(c).
¶9The appellant was absent from work for 39 consecutive days, from
January 9 through March 8, 2018. IAF, Tab 28 at 26-27, 55. On March 14 and
April 3, 2018, the appellant indicated that his doctors would be submitting FMLA
paperwork to cover the illnesses he had been suffering since January 2018. IAF,
Tab 15 at 8, 12. In response, his first-line supervisor informed him that he could
not invoke FMLA again until 12 months had passed since he last invoked FMLA
beginning on April 11, 2017, and told him to contact human resources. IAF,
Tab 15 at 13-14, 16, Tab 28 at 20, 53. Thus, the appellant presented sufficient
evidence to trigger consideration of his absences under the FMLA and the agency
has the burden of proving it properly denied him FMLA leave in taking the
leave-based action against him. Fairley, 82 M.S.P.R. at 591.
¶10The administrative judge found, and the appellant does not dispute, that he
had invoked FMLA coverage beginning April 11, 2017, and exhausted his
480 hours of FMLA-protected leave on July 17, 2017. ID at 5. Thus, she found5
that the appellant was not eligible for FMLA coverage again until April 11, 2018,
and that all of the instances of AWOL on which his removal was based occurred
prior to this date. Id. We agree. The agency submitted evidence and argument to
prove that the appellant had exhausted his FMLA-protected leave and was not
eligible to invoke it again until April 2018. For example, a Human Resources
Specialist testified that the appellant used FMLA-protected leave from April 11,
2017, to July 17, 2017, and that he would not have been able to invoke it again
until a 12-month period had passed from the date he first invoked it, i.e.,
April 11, 2018. Hearing Transcript (HT) at 171-72, 174 (testimony of the Human
Resources Specialist). The agency also submitted the appellant’s leave records
which documented his FMLA-protected leave usage and exhaustion in 2017.
IAF, Tab 28 at 20-22, 55. Thus, as the administrative judge correctly found, the
appellant was not entitled to FMLA -protected leave while he was AWOL from
January 9 through March 8, 2018. ID at 4-5. Therefore, the agency met its
burden of showing that it complied with the FMLA as part of its overall burden of
proving the AWOL charge, and the administrative judge correctly sustained the
charge.4
4 On review, the appellant states that the administrative judge did not consider a prior
miscalculation of his FMLA usage in 2016, which he argues is evidence of his first-line
supervisor’s bias. PFR File, Tab 1 at 7-8. He argues that the Human Resources
Specialist testified that the appellant had more FMLA time remaining but his supervisor
designated it AWOL instead. Id. at 7. However, this is not an accurate representation
of the testimony. The Human Resources Specialist only testified that the appellant took
FMLA-protected leave and regarding when such leave was exhausted in 2016 and 2017.
HT at 171-72 (testimony of the Human Resources Specialist). Moreover, the
administrative judge addressed the appellant’s use of FMLA-protected leave in 2016 in
the initial decision and detailed that the 2016 miscalculation was corrected and the
appellant was allowed to utilize his remaining hours of FMLA leave. ID at 5. The
appellant does not dispute the administrative judge’s findings regarding his FMLA
usage and exhaustion in 2017 as it relates to his AWOL charge. 6
The appellant abandoned or waived his affirmative defenses of disability
discrimination and retaliation for FMLA and equal employment opportunity
(EEO) activity.
¶11Before the administrative judge, the appellant raised the affirmative defense
of retaliation for FMLA activity. IAF, Tab 19 at 4 . He also suggested that his
removal was the result of EEO retaliation and the agency’s failure to
accommodate a disability. Id. at 14, 16. However, he did not identify these
claims as issues in his prehearing statement. Id. at 4. The administrative judge
did not identify these discrimination and retaliation claims as issues for
adjudication in the prehearing conference summary. IAF, Tab 22 at 3. She did
not render findings on the appellant’s FMLA and disability discrimination claims
in the initial decision. ID at 9. As discussed below, we find that the appellant
has abandoned these previously raised affirmative defenses.
¶12In Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18, we set forth a
nonexhaustive list of factors for consideration when determining whether an
appellant will be deemed to have waived or abandoned a previously raised
affirmative defense. The factors include: (1) the thoroughness and clarity with
which the appellant raised his affirmative defense; (2) the degree to which the
appellant continued to pursue his affirmative defense in the proceedings below
after initially raising it; (3) whether the appellant objected to a summary of the
issues to be decided that failed to include the potential affirmative defense when
he was specifically afforded an opportunity to object and the consequences of his
failure were made clear; (4) whether the appellant raised his affirmative defense
or the administrative judge’s processing of the affirmative defense claim in his
petition for review; (5) whether the appellant was represented during the course
of his appeal before the administrative judge and on petition for review, and if he
was not, the level of knowledge of Board proceedings possessed by the appellant;
and (6) the likelihood that the presumptive abandonment of the affirmative7
defense was the product of confusion, or misleading or incorrect information
provided by the agency or the Board. Id., ¶ 18.
¶13Here, the appellant raised the FMLA reprisal affirmative defense in a single
sentence in a single pleading. IAF Tab 19 at 4. As to his EEO retaliation and
disability discrimination claims, he did not clearly identify them as issues to be
decided. Id. Although he referred to his requests for accommodation in his
prehearing submissions, he did not argue that his removal resulted from the
agency’s alleged denials of those requests. Id. at 14. Further, the appellant’s
representative appeared to disclaim that he was raising an EEO retaliation claim
at the hearing but instead asserted that his only purpose in introducing testimony
regarding the appellant’s EEO activity was to demonstrate “instances of
harassment.” HT at 239-40 (discussion on the record). The appellant had the
opportunity to object to the administrative judge’s prehearing conference
summary that included the issues to be determined at hearing; yet, despite
objecting to other portions of the prehearing conference summary, he did not
object to the summary of his affirmative defenses. IAF, Tab 22 at 3, Tab 23
at 4-5. The administrative judge warned the parties that, absent objection, no
issues would be accepted beyond those listed in the prehearing conference
summary. IAF, Tab 22 at 1.
¶14Similarly, the appellant did not raise any argument on review regarding his
FMLA reprisal claim. PFR File, Tab 1. The administrative judge appears to have
made a finding that the appellant did not prove retaliation for EEO activity, but
she does not explain in the initial decision why she reached this finding despite
the appellant’s specific statement that he was not raising such a claim. ID at 13.
The appellant appears to dispute this finding on review, but falls short of
asserting that his removal was the result of EEO retaliation. PFR File, Tab 1 at 8,
14. Regarding the disability discrimination claim, the administrative judge found
that the appellant did not assert this affirmative defense below and thus did not
address this issue in the initial decision. ID at 7 n.4. While the appellant does8
not explicitly contest this finding on review, he appears to argue that his
reasonable accommodation requests were denied by his supervisors. PFR File,
Tab 1 at 12-14.
¶15Throughout this appeal, the appellant was represented by an attorney and
there is no evidence that his abandonment of these affirmative defenses was due
to confusion or misleading or incorrect information provided by the
administrative judge or the agency. As such, when weighing all these factors
together, it is clear that the appellant either did not raise or effectively abandoned
the affirmative defenses of disability discrimination and retaliation for his prior
EEO and FMLA activity, and we will not consider these issues further. Because
the appellant’s EEO claim was not properly before her, we vacate the initial
decision to the extent that it suggested the appellant did not prove this claim. ID
at 13.
We affirm the finding that the appellant failed to establish his affirmative defense
of reprisal for his prior Board appeals, as modified to apply the proper standard.
¶16In finding that the appellant failed to prove his affirmative defense of
reprisal for filing prior Board appeals, the administrative judge analyzed the
appellant’s claim under the Warren standard. ID at 9-14; see Warren v.
Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir. 1986) (establishing the
general reprisal standard), superseded in part by statute as stated in Alarid v.
Department of the Army , 122 M.S.P.R. 600, ¶ 15 (2015) (explaining that the
Warren standard is inapplicable to claims subject to the burden-shifting standard
set forth in 5 U.S.C. § 1221(e)). However, the Warren standard does not apply to
claims in which an appellant asserted EEO retaliation. See Mattison v.
Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8 (2016) (reflecting that the
Warren standard does not apply to cases in which an appellant alleges reprisal for
activity protected by Title VII). The appellant raised an affirmative defense of
retaliation for prior EEO activity in his underlying Board appeals. Specifically,
he asserted race discrimination and retaliation for filing an EEO complaint. Kone9
v. Department of the Navy , MSPB Docket No. PH-0752-13-0217-I-1, Initial
Appeal File, Tab 4 at 13; 0217 Final Order at 3, 9. Thus, in the instant appeal,
the appellant must prove that his prior Board appeals, which included his
discrimination claims, were a “motivating factor” in his instant removal. See
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 32 (stating that
the “motivating factor” standard applies in claims of retaliation for filing Board
appeals when the underlying Board appeal involved claims of discrimination and
retaliation for engaging in EEO activity).
¶17Nonetheless, although the administrative judge discussed the general
Warren reprisal standard, she properly relied on the motivating factor standard .
ID at 9, 13. She concluded that the appellant had not shown that his prior Board
appeals were a motivating factor in this removal action. ID at 13. We clarify on
review that the Warren standard on which the administrative judge partially relied
is not applicable here. See Mattison, 123 M.S.P.R. 492, ¶ 8.
¶18The administrative judge found that it was undisputed that the appellant
filed prior Board appeals and that his first-line supervisor, the proposing official,
and the deciding official acknowledged that they were aware of this prior
protected activity. ID at 9-10. However, she found that none of these agency
officials were involved in the discipline underlying those prior appeals. ID at 13.
She further found that the record fully supported the agency’s stated reason for
the removal, the appellant’s AWOL charge. Id. She thus concluded that the
appellant had not shown his prior Board appeals were a motivating factor in the
removal. Id. We agree. Additionally, we find that the administrative judge’s
reliance on the Warren standard does not change the outcome in this case because
the appellant’s claim would fail under either of the aforementioned standards.5
5 Although the administrative judge discussed the Warren standard in advising the
appellant of his burdens of proof regarding his affirmative defenses, this error did not
harm the appellant. The Warren standard is higher than the motivating factor standard
for proving retaliation under Pridgen. In particular, in order to meet the “genuine
nexus” requirement under Warren, an appellant must prove, as relevant here, that the
adverse employment action was taken because of the protected activity. Mattison,10
ID at 12-14. Thus, any error committed by the administrative judge in applying
this standard has not prejudiced the appellant’s rights. See Panter v. Department
of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error
that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision).
¶19On review, the appellant argues that the administrative judge’s analysis of
his reprisal claim for filing prior Board appeals reflects a misunderstanding of the
“cat’s paw” theory of liability. PFR File, Tab 1 at 9-10, 15. The appellant argues
that the administrative judge erred in finding that he did not demonstrate that his
first-line supervisor improperly influenced the proposing and deciding officials.
Id. He reasons that, under the “cat’s paw” theory, this proof is not required but
that the bias of the first-line supervisor was automatically imputed to the
proposing and deciding officials, regardless of whether they were directly
informed of, or influenced by, the bias. Id. at 9.
¶20The U.S. Supreme Court has adopted the term “cat’s paw” to describe a
situation in which a particular management official, acting because of an
improper animus, influences the agency official charged with making the
employment decision at issue. Staub v. Proctor Hospital , 562 U.S. 411, 415-16
(2011). Although the administrative judge did not specifically refer to the “cat’s
paw” theory in her analysis, she did consider the appellant’s claim regarding the
first-line supervisor’s alleged bias against the appellant.6 ID at 13.
¶21As relevant here, she was not persuaded that the vague testimony of one of
the appellant’s coworkers that the first-line supervisor asked him about the
appellant reflected any retaliatory animus. ID at 12-13. The appellant argues that
123 M.S.P.R. 492, ¶ 8. When a statute prohibits retaliation “because of” protected EEO
activity, the employee’s claim is subject to a but-for causation standard. Pridgen,
2022 MSPB 31, ¶¶ 44-46. “But-for” causation is a higher burden than “motivating
factor” causation.” Id., ¶¶ 21 n.4, 22, 28.
6 To the extent the appellant has invoked the cat’s paw theory as to his disability
discrimination and EEO retaliation claims, we decline to address this argument. PFR
File, Tab 1 at 9-10, 15-16. As discussed above, these claims are not properly before us.11
the administrative judge mischaracterized the testimony of his coworker. PFR
File, Tab 1 at 5-7. He argues that his coworker’s testimony was sufficiently
specific as to the timing of the conversation between him and the first-line
supervisor and as to the topic of discussion. Id. at 6-7. We are not persuaded.
¶22The appellant’s coworker testified that, “right at the very beginning” of
when the first-line supervisor began supervising the appellant, the first-line
supervisor asked the coworker if he knew of the appellant’s “issues” and the
coworker responded that he had heard rumors about the appellant. HT at 197-98
(testimony of the coworker). He further testified that the first-line supervisor did
not ask about any other employees. Id. at 198. As the appellant observes, it is
possible to surmise that the conversation occurred sometime in early- to
mid-2016, based on the testimony of the appellant’s supervisor. PFR File, Tab 1
at 6; HT at 56 (testimony of the first-line supervisor). Nonetheless, we agree
with the administrative judge’s characterization of this testimony as vague and
her finding that it did not support a retaliatory motive by the first-line supervisor.
ID at 13. The only specific information the coworker was able to provide
regarding the substance of the first -line supervisor’s questions was that he asked
“do you know if [the appellant] even come[s] to the office.” HT at 197
(testimony of the coworker). This question does not reflect an improper motive.
Rather, it appears related to the appellant’s attendance problems, which the
appellant’s first-line supervisor testified “started within a few months within
[him] becoming a supervisor.” HT at 60 (testimony of the first-line supervisor).
In fact, the supervisor issued the appellant a letter of reprimand for an unexcused
absence on August 10, 2016. HT at 60-61 (testimony of the first-line supervisor);
IAF, Tab 4 at 34-36. Thus, contrary to the appellant’s arguments on review, we
find that his coworker’s testimony does not evidence retaliatory intent on the part
of his first-line supervisor. PFR File, Tab 1 at 7.
¶23We are also not persuaded that the fact that the appellant’s first-line
supervisor read the appellant’s file is evidence of retaliatory motive. Id.; HT12
at 56 (testimony of the first-line supervisor). He also testified that he read the
files of all his subordinates. HT at 56-57 (testimony of the first-line supervisor).
Thus, we discern no evidence of retaliatory motive. Because the administrative
judge properly found that the appellant’s first-line supervisor had no motive to
retaliate against the appellant based on his prior Board appeals, it follows that
there is no motive to impute to the proposing and deciding officials. As such, the
administrative judge correctly found that the appellant had not shown that his
prior Board appeals were a motivating factor in his removal. ID at 13-14.
The administrative judge correctly found that the penalty of removal was
reasonable.
¶24On review, the appellant argues that the deciding official and administrative
judge failed to consider provocation as a mitigating factor and that the penalty of
removal can thus not be sustained.7 PFR File, Tab 1 at 17-18, Tab 6 at 6-7.
Specifically, he argues that a hostile work environment created by his first-line
supervisor, in light of his medical conditions and the failure of the agency to
grant his reasonable accommodation request, should have been considered as a
mitigating factor because the circumstances provoked his AWOL status. PFR
File, Tab 1 at 17. The administrative judge addressed similar arguments below in
sustaining the agency’s charge. Specifically, she considered but rejected the
appellant’s claim that he was medically unable to work during the AWOL period.
ID at 6-8. She concluded that the appellant’s medical documentation did not
support his argument that he was incapacitated. ID at 8. The appellant does not
7 On review, the appellant also asserts his provocation argument as an affirmative
defense to his removal. PFR File, Tab 1 at 8-9, Tab 6 at 5-6. We decline to consider
this claim. First, he did not raise this argument below, IAF, Tab 1 at 6, Tab 19 at 4, and
may not now raise it on review, see Banks v. Department of the Air Force , 4 M.S.P.R.
268, 271 (1980) (finding that the Board will not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence); IAF, Tab 22 at 1-3,
Tab 23 at 4-5. Moreover, this provocation argument is more appropriately addressed as
part of the Douglas factor penalty determination analysis. See Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305 (1981) (identifying, among other mitigating
factors, any provocation by others involved in the matter). 13
dispute this finding on review. In light of the administrative judge’s
well-reasoned finding that the appellant was not incapacitated, we are not
persuaded that his new claim of “provocation,” based on his supervisor’s alleged
harassment, warrants mitigation. If the appellant was not incapacitated, he was
obligated to report to work.
¶25When, as here, the agency’s charge has been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
of the relevant factors set forth in Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305-06 (1981), and exercised management discretion within
tolerable limits of reasonableness.8 Archerda v. Department of Defense ,
121 M.S.P.R. 314, ¶ 25 (2014). In determining whether the selected penalty is
reasonable, the Board gives due deference to the agency’s discretion in exercising
its managerial function of maintaining employee discipline and efficiency. Id.
The Board will modify a penalty only when it finds that the agency failed to
weigh the relevant factors or that the penalty the agency imposed clearly
exceeded the bounds of reasonableness. Id.
¶26The administrative judge found that the deciding official properly
considered the mitigating factors and determined that the penalty of removal was
within the tolerable limits of reasonableness. ID at 14-16. In light of the above,
we agree with the administrative judge that the deciding official correctly
weighed the relevant Douglas factors and that the penalty of removal for being
AWOL for 39 consecutive days was reasonable. See, e.g., McCauley v.
Department of the Interior , 116 M.S.P.R. 484, ¶ 14 (2011) (finding that a penalty
of removal for more than 20 consecutive workdays of AWOL did not exceed the
tolerable limits of reasonableness); Foreman v. U.S. Postal Service , 89 M.S.P.R.
328, ¶ 17 (2001) (finding that removal is reasonable for 16 days of AWOL);
Maddux v. Department of the Air Force , 68 M.S.P.R. 644, 646 (1995) (finding
8 In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of factors
relevant to the penalty determination in adverse actions. 14
that removal is a reasonable penalty for approximately 3 weeks of AWOL, despite
the fact that there were mitigating factors, including the employee’s length of
service and his personal problems).
NOTICE OF APPEAL RIGHTS9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on16
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or17
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Kone_ZiePH-0752-18-0348-I-1__Final_Order.pdf | 2024-07-03 | ZIE KONE v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-18-0348-I-1, July 3, 2024 | PH-0752-18-0348-I-1 | NP |
1,061 | https://www.mspb.gov/decisions/nonprecedential/Feren_Michael_Y_PH-0752-20-0191-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL Y. FEREN,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
PH-0752-20-0191-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Y. Feren , Brooklyn, New York, pro se.
Navid Mehrjou , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal on the basis of res judicata. On
petition for review, the appellant does not directly address res judicata; rather, he
reasserts that his resignation was involuntary. Petition for Review File, Tab 1
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
at 2, 4, Tab 4 at 7. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
Under the doctrine of res judicata, or claim preclusion, a valid, final
judgment on the merits of an action bars a second action involving the same
parties or their privies based on the same cause of action. Peartree v. U.S. Postal
Service, 66 M.S.P.R. 332, 337 (1995). Res judicata is applicable if (1) the prior
judgment was rendered by a forum with competent jurisdiction, (2) the prior
judgment was a final judgment on the merits, and (3) the same cause of action
and the same parties or their privies were involved in both cases. Id. Here, we
discern no basis to disturb the administrative judge’s conclusion that the matter
should be dismissed on this basis.2 Initial Appeal File, Tab 8, Initial Decision
2 Shortly after the issuance of the initial decision in this matter, the appellant filed a
separate Board appeal. Feren v. Department of the Treasury , MSPB Docket No.
PH-0752-20-0295-I-1, Initial Appeal File, Tab 1. In his petition for review for this
latter appeal, the appellant ostensibly argues that res judicata is inapplicable to his
claim of involuntary resignation insofar as he is raising a new issue, i.e., that his union
representative’s malfeasance propelled his resignation. Feren v. Department of the
Treasury, MSPB Docket No. PH-0752-20-0295-I-1, Petition for Review File, Tab 1
at 4. In light of the appellant’s pro se status, we have considered this argument for
purposes of this appeal; however, we find that it does not provide a basis to disturb the2
(ID) at 2-4. Indeed, as set forth in the initial decision, the appellant previously
challenged his allegedly involuntary resignation with the Board in 2015, and a
final judgment on the merits was issued.3 Id.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
initial decision. See generally Miles v. Department of Veterans Affairs , 84 M.S.P.R.
418, ¶ 6 (1999) (explaining that the Board construes pro se pleadings liberally). Indeed,
the appellant provides no explanation as to why he did not raise this issue in his prior
Board appeal challenging his resignation. See Carson v. Department of Energy ,
398 F.3d 1369, 1375 (Fed. Cir. 2005 ) (explaining that res judicata precludes parties
from litigating issues that could have been raised in a prior action).
3 As set forth in the initial decision, this prior appeal was dismissed for failure to
prosecute. ID at 2-3; see Triplett v. Office of Personnel Management , 105 M.S.P.R.
575, ¶ 9 (explaining that a dismissal for failure to prosecute operates as an adjudication
on the merits), aff’d, 250 F. App’x 322 (Fed. Cir. 2007).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Feren_Michael_Y_PH-0752-20-0191-I-1__Final_Order.pdf | 2024-07-03 | MICHAEL Y. FEREN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-0752-20-0191-I-1, July 3, 2024 | PH-0752-20-0191-I-1 | NP |
1,062 | https://www.mspb.gov/decisions/nonprecedential/Feren_Michael_Y_PH-0752-20-0295-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL Y. FEREN,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
PH-0752-20-0295-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Y. Feren , Brooklyn, New York, pro se.
Navid Mehrjou , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for failure to prosecute. On petition for review, the
appellant does not address the basis for the dismissal of his appeal, i.e., why he
failed to respond to or comply with any of the administrative judge’s orders.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Petition for Review File, Tab 1 at 1-4; Initial Appeal File, Tab 2 at 5-6, Tab 3
at 1, Tab 6 at 1. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Feren_Michael_Y_PH-0752-20-0295-I-1__Final_Order.pdf | 2024-07-03 | MICHAEL Y. FEREN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-0752-20-0295-I-1, July 3, 2024 | PH-0752-20-0295-I-1 | NP |
1,063 | https://www.mspb.gov/decisions/nonprecedential/Jimenez_MarkSF-0752-19-0069-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK JIMENEZ,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
SF-0752-19-0069-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jesse Ortiz , Sacramento, California, for the appellant.
Lindsay M. Nakamura , Esquire, El Segundo, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
properly construe and analyze the charge, we AFFIRM the initial decision.
BACKGROUND
On August 6, 2018, the agency issued a notice proposing to remove the
appellant from his Airway Transportation Systems Specialist position with the
agency’s Federal Aviation Administration, based on a charge of unacceptable
conduct (five specifications). Initial Appeal File (IAF), Tab 7 at 101-10. In the
first specification, the agency alleged that, between February 2014 and August
2016, the appellant submitted five altered or fabricated Air Force (AF)-938 forms
titled “Request for Authorization for Active Duty Training/Active Duty Tour”
when he had not been ordered to appear for military duty on the dates listed on
the forms.2 Id. at 102. The agency alleged that the appellant falsified the AF-938
forms either by changing his report and/or release dates for military duty, or by
altering a previously used AF-938 form to reflect military duty that was
completely fabricated. Id. For example, the agency alleged that the appellant
altered an AF-938 form dated July 31, 2013, by changing the report and release
dates for military duty from September 16-18, 2013, to February 24-28, 2014, and
2 During the period at issue, the appellant was a Master Sergeant in the Air Force
Reserve Command. IAF, Tab 7 at 101.2
then submitted this form, even though no order had been issued directing him to
report for military duty from February 24-28, 2014. Id.
In specification 2 of the charge, the agency alleged as follows: on nine
occasions between March 2014 and May 2016, the appellant submitted Office of
Personnel Management Standard Form 71 (SF-71) forms requesting paid military
leave totaling 190 hours for the period from February 24, 2014, to April 20, 2016;
his military leave requests were approved and the appellant did not report to work
on the dates for which leave was requested; these leave requests were based on
falsified military orders3 or were not supported by underlying military orders and,
therefore, the appellant knew that he was not entitled to receive paid military
leave for the dates listed on the SF-71 forms; and, by placing his electronic
signature on each form, the appellant certified that he understood that
falsification of the form may be grounds for disciplinary action, including
removal. IAF, Tab 7 at 103.
In the third specification, the agency alleged that the appellant was absent
without leave (AWOL) for 200 hours because the military leave requests at issue
in specification 2, plus an additional military leave request for 10 hours on
August 20, 2016, were based on altered AF-938 forms and thus his absence from
work on the dates listed on the SF-71 forms was unauthorized. Id. at 103-04.
The fourth specification of the charge consists of four parts, each of which
involves the appellant’s alleged falsification or improper coding of his time and
attendance records. IAF, Tab 7 at 104-06. In part A, the agency alleged that,
between July 2014 and December 2016, the appellant submitted 17 leave requests
for a total of 191 hours that were approved by the agency. Id. at 104-05. The
agency alleged that, although the appellant did not report to work for the hours of
his approved leave, he recorded his time in the agency’s timekeeping system to
3 Four of the SF-71 forms at issue in this specification were based on the AF-938 forms
described in the first specification. IAF, Tab 7 at 103.3
show that he was working those 191 hours and, therefore, no leave was deducted
from his leave balance even though he was absent from work. Id. at 104.
In part B, the agency alleged that, in four separate instances totaling 90
hours in November and December 2015, the appellant failed to report to work
despite not having submitted an SF-71 form requesting leave, and then marked
himself as present and working in the agency’s timekeeping system. IAF, Tab 7
at 105.
In part C, the agency alleged that, a lthough the appellant exhausted his 120
allowable hours of military leave for Fiscal Year 2016 as of January 4, 2016, in
May, July and August of 2016, he improperly coded his time and attendance
record for military leave totaling 70 hours. Id.
In part D, the agency alleged that the appellant falsified his time and
attendance records to reflect that he worked on Sunday, when he did not. IAF,
Tab 7 at 105-06. The agency alleged that, as a result, the appellant was paid 90
hours of Sunday premium pay he was not entitled to receive. Id.
In the fifth specification of the charge, the agency alleged that the appellant
was not forthcoming and candid during an Office of Inspector General (OIG)
investigation into his alleged misconduct, as evidenced by the transcript of his
April 28, 2017 interview. IAF, Tab 7 at 106.
After the appellant responded to the proposal, IAF, Tab 7 at 38-100, the
proposing official, who was also the deciding official, found that the agency
proved the charge in its entirety with the exception of part D of specification 4
pertaining to premium pay, id. at 32, and issued a decision removing the appellant
effective October 10, 2018, id. at 31-37.
The appellant filed an appeal of his removal with the Board. IAF, Tab 1.
He initially requested a hearing but subsequently withdrew his request. Id. at 2,
Tab 39. The appellant stipulated to the facts underlying the specifications of the
charge. IAF, Tab 36 at 4, 6; Tab 38 at 1. He raised an affirmative defense of4
retaliation for his prior equal employment opportunity (EEO) activity.4 IAF,
Tab 35 at 7.
Based on the written record, the administrative judge issued an initial
decision that affirmed the appellant’s removal. IAF, Tab 44, Initial Decision (ID)
at 1, 16. The administrative judge found that: the agency proved the charge by
preponderant evidence, ID at 10; the appellant did not prove his affirmative
defense, ID at 10-12; and the penalty of removal is reasonable and promotes the
efficiency of the service, ID at 12-16.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded to the petition. PFR File, Tab 3.
ANALYSIS
We modify the administrative judge’s analysis of the unacceptable conduct
charge, still finding that the agency proved the charge.
In analyzing the unacceptable conduct charge, the administrative judge
stated that, to prove this charge, the agency must show that the appellant engaged
in the conduct with which he is charged. ID at 10. The administrative judge
noted that the parties stipulated to the facts as set forth in the specifications of the
charge, and he found the parties’ stipulations sufficient to prove all of the
specifications. Id.; IAF, Tab 36 at 6, Tab 38 at 1. The administrative judge
further found that the actions described in the specifications constitute
unacceptable conduct. ID at 10. Therefore, the administrative judge found, the
agency proved the charge. Id.
Although the appellant does not challenge this finding on review,5 PFR
File, Tab 1 at 4-5, we find that the administrative judge incorrectly interpreted the
4 As discussed further below, the appellant initially raised other affirmative defenses,
including retaliation for filing a grievance and discrimination based on his race and
national origin, but withdrew those affirmative defenses during the prehearing
conference. IAF, Tab 1 at 4, Tab 14 at 1, Tab 17 at 6, Tab 35 at 7.
5 The appellant also does not challenge the administrative judge’s finding that the
agency proved that there is a nexus between the charge and the efficiency of the service.
PFR File, Tab 1 at 4-5; ID at 12-13. We discern no reason to disturb this finding.5
charge. Where, as here, the agency has employed a generic label for the charge,
the Board must look to the specifications to determine what conduct is the basis
for the charge. Lachance v. Merit Systems Protection Board , 147 F.3d 1367,
1372 (Fed. Cir. 1998). In resolving the issue of how a charge should be construed
and what elements require proof, the Board examines the structure and language
of the proposal notice and the decision notice. See Boltz v. Social Security
Administration, 111 M.S.P.R. 568, ¶ 16 (2009) (finding that, although the agency
used the general charge of inappropriate behavior, the specifications and
circumstances showed that the agency charged the appellant with intentional
falsification; thus the agency was required to prove the elements of falsification).
Falsification
Based on our review of the record, we find that specifications 1, 2, and 4
should be construed as a falsification charge. As set forth above, in specification
1, the agency explicitly alleged that the appellant falsified AF-938 forms on five
separate occasions either by changing his report and/or release dates for military
duty, or by altering a previously used AF-938 form to reflect military duty that
was completely fabricated. IAF, Tab 7 at 102. The agency also alleged that the
appellant then submitted these altered or fabricated forms even though he had not
been ordered to appear for military duty on the dates listed on the forms. Id.
In specification 2, the agency alleged that the appellant submitted SF-71
forms requesting paid military leave; however, these leave requests were based on
falsified military orders or were not supported by underlying military orders and,
therefore, the appellant knew that he was not entitled to receive paid military
leave for the dates listed on the SF-71 forms. IAF, Tab 7 at 103. The agency
further alleged that, by placing his electronic signature on each form, the
appellant certified that he understood that falsification of the form may be
grounds for discipline. Id.6
As for the fourth specification, the agency alleged that the appellant
falsified his time and attendance records by recording his time in the agency’s
timekeeping system to show that he was working during hours in which he had
not reported to work; thus, no leave was deducted from his leave balance even
though he was absent from work. IAF, Tab 7 at 104-06.
In addition to the specifications, the notice of proposed removal included a
section entitled “Discussion” in which the proposing official addressed the
appellant’s misconduct in greater detail. Id. at 106-09. The proposing official
alleged that the appellant altered military documents, which he then submitted to
management “with the intent to deceive for [his] own material gain of being
absent from work without actually performing military duty, and without using
any of [his] accrued leave.” Id. at 108. The proposing official also noted that the
appellant admitted to altering his military orders by printing out a date, which he
then cut and pasted onto an AF-938, and then making a photocopy of the form.
Id.; IAF, Tab 8 at 195-96.
The proposing official further alleged that the appellant’s submission of
leave requests after the date for which leave was requested and his failure to
properly enter his time in the agency’s timekeeping system indicated that he was
intentionally deceptive and knowingly made false entries in the timekeeping
system. IAF, Tab 7 at 107. She alleged that the appellant was attempting to
obfuscate the truth of his time and attendance by submitting leave requests and
then not recording the leave taken in the system. Id. The proposing official
stated that she did not believe that this was simple error or misunderstanding. Id.
In sum, although the agency charged the appellant with unacceptable
conduct, these specifications and the accompanying discussion of the appellant’s
actions show that the agency charged the appellant with falsification of his
military orders and his time and attendance records. See George v. Department of
the Army, 104 M.S.P.R. 596, ¶ 8 (2007), aff’d, 263 F. App’x 889 (Fed. Cir. 2008).7
To establish a charge of falsification, the agency must prove the following
by preponderant evidence: (1) the appellant supplied incorrect information; and
(2) he did so knowingly with intent to defraud, deceive, or mislead the agency for
his own private material gain. Boo v. Department of Homeland Security ,
122 M.S.P.R. 100, ¶¶ 10-12 (2014). Whether the element of intent has been
proven must be resolved from the totality of the circumstances. See Rodriguez v.
Department of Homeland Security , 108 M.S.P.R. 525, ¶ 9 (2008); Blake v.
Department of Justice , 81 M.S.P.R. 394, ¶ 27 (1999). Intent may be inferred
when a misrepresentation is made with reckless disregard for the truth or with a
conscious purpose to avoid learning the truth. See Haebe v. Department of
Justice, 81 M.S.P.R. 167, ¶ 17 (1999), rev’d on other grounds , 288 F.3d 1288
(Fed. Cir. 2002).
The record shows that the appellant intended to deceive the agency by
altering AF-938 forms and submitting them to management. In his April 28, 2017
interview with OIG agents, the appellant stated that he altered the forms so that
he could have extra time to work out and calm down. IAF, Tab 8 at 195-96; Tab
28 at 111. We find that the appellant’s admission that he altered these documents
so that he could take additional time off without using his leave is sufficiently
probative to establish that he knowingly supplied incorrect information with the
intention of defrauding, deceiving, or misleading the agency for his own material
gain. See Hoofman v. Department of the Army , 118 M.S.P.R. 532, ¶¶ 9-10 (2012)
(finding that the appellant’s admission that he had been drinking and was in the
driver’s seat of the vehicle with the engine running and the charging police
officer’s affidavit were sufficiently probative to prove that he had been driving
under the influence), aff’d, 526 F. App’x 982 (Fed. Cir. 2013). Accordingly, we
find that the agency proved the falsification charge.8
AWOL
We next consider specification 3, which charged the appellant with 200
hours of AWOL. IAF, Tab 7 at 103-04. The agency alleged that, because the
appellant’s leave requests for those hours were based on altered AF-938 forms,
his absence from work on the dates listed those leave requests was unauthorized.
Id. at 103.
To prove an AWOL charge, an agency must demonstrate that the employee
was absent without authorization and, if the employee requested leave, that the
request was properly denied. Savage v. Department of the Army , 122 M.S.P.R.
612, ¶ 28 n.5 (2015), overruled in part on other grounds by Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 23-25. Here, it is undisputed that
the military leave requests were based on military orders which had been falsified
to reflect that the appellant had military duty on days when he did not. IAF, Tab
36 at 6. Given these circumstances, we find that the appellant’s absence on those
days was unauthorized. Accordingly, we find that the agency proved this charge.
Lack of Candor
For specification 5, the agency alleged that the appellant was “not fully
forthcoming and candid during the course of the OIG investigation into [his]
misconduct . . . as evidenced by the transcript of [his] interview conducted on
April 28, 2017.” IAF, Tab 7 at 106, Tab 8 at 106-278. In particular, the agency
alleged the appellant was evasive and non-responsive when questioned as to
whether he had altered the AF-938 forms so that he could take extra days off
work. IAF, Tab 7 at 106.
We find that this specification charges the appellant with lack of candor, as
the agency alleged that the appellant acted with a level of intent to knowingly
give incomplete or inaccurate information to the interviewers. IAF, Tab 7 at 106.
Id. To prove a lack of candor charge, the agency must prove that an appellant
was not fully forthcoming and candid as to all facts and information relevant to9
the matter at issue, whether or not such information was specifically elicited. See
Ludlum v. Department of Justice , 278 F.3d 1280, 1284 (Fed. Cir. 2002). Lack of
candor may involve a failure to disclose something that, in the circumstances,
should have been disclosed to make a statement accurate and complete. Id.
Although a lack of candor charge does not require an affirmative
misrepresentation, it does involve an element of deception, and an agency
alleging lack of candor must prove the appellant knowingly gave incorrect or
incomplete information. Fargnoli v. Department of Commerce , 123 M.S.P.R.
330, ¶¶ 16-17 (2016).
The record reflects that the appellant admitted that he was not honest
during the first half of his OIG interview because he was “apprehensive” but that
he later “came clean” at the end of his interview. IAF, Tab 28 at 106-07. Thus,
we find that the agency has proven that the appellant knowingly provided
incorrect or incomplete information during his OIG interview.
The appellant failed to prove his affirmative defense of retaliation for EEO
activity.
On review, the appellant contends that the administrative judge erred in
finding that he failed to prove his affirmative defense of reprisal for his prior
EEO activity. PFR File, Tab 1; ID at 10-12. As explained in the initial decision,
the protected EEO activity at issue consists of the appellant seeking EEO
counseling on July 6, 2018, regarding his claim that he was wrongfully denied a
promotion, and engaging in a mediation session on October 3, 2018. PFR File,
Tab 1 at 8-10; IAF, Tab 42 at 9-10. He argues that, because the agency knew of
his misconduct before his EEO activity, but did not remove him until after,
retaliatory motive can be inferred. PFR File, Tab 1 at 10. We are not persuaded.10
Although the appellant cites the Warren standard6 in arguing that he proved
his EEO reprisal claim, the Warren standard is not applicable here. PFR File,
Tab 1 at 8-10. The record shows that the appellant’s underlying EEO activity
involved claims of discrimination based on race and color. IAF, Tab 7 at 20. To
prove an affirmative defense of retaliation for such Title VII EEO activity, the
appellant must show that retaliation was a motivating factor in the agency's
decision. Pridgen, 2022 MSPB 31, ¶¶ 19-21, 30. An appellant may prove his
claim by a combination of direct or indirect evidence, including suspicious
timing, statements, or actions by agency officials from which an inference of
discrimination might be drawn, evidence concerning the agency's treatment of
similarly situated individuals outside the appellant's protected class, and evidence
that the agency's stated reasons for the action were pretextual. Id. ¶ 24.
The administrative judge found that it was undisputed that the appellant
engaged in EEO activity by seeking EEO counseling prior to the removal decision
and by engaging in a mediation session. ID at 11. However, he found that the
appellant failed to prove by preponderant evidence that retaliation was a
motivating factor in his removal because there was no evidence that would
support a finding of retaliation for prior EEO activity. ID at 11-12. In doing so,
the administrative judge considered the appellant’s argument that the retaliatory
motive could be inferred based on the temporal proximity between the activity
but did not find it persuasive based on the record evidence. ID at 12. We agree.
The record contains the unchallenged declaration and supporting emails of
a Human Resources Specialist who was assigned to assist the proposing and
deciding official with facilitating the appellant’s removal. IAF, Tab 41 at 20-27.
This evidence reflects that the proposing official authorized the drafting of the
6 Under the Warren standard, for an appellant to prevail on an affirmative defense of
retaliation for protected activity, he must show that (1) he engaged in protected activity;
(2) the accused official knew of the activity; (3) the adverse action under review could
have been retaliation under the circumstances; and (4) there was a genuine nexus
between the alleged retaliation and the adverse action. See Warren v. Department of the
Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986).11
notice of the proposed removal on April 17, 2018, prior to the appellant engaging
in protected EEO activity when he sought EEO counseling on July 6, 2018, or
filed his EEO complaint on November 6, 2018. IAF, Tab 7 at 19-21, Tab 41 at
20-21. She then, in her role as deciding official, decided to remove the appellant
after reviewing his August 21, 2018 written reply but prior to the EEO mediation
on October 3, 2018. IAF, Tab 7 at 22, 27, Tab 41 at 20, 23-25, 27. Moreover, the
appellant identified no direct evidence of retaliation for EEO activity or
comparator evidence, and he stipulated to the facts underlying the specifications
in support of the removal action. In light of these considerations, and considering
the evidence as a whole, we agree with the administrative judge’s conclusion that
the appellant has not shown that his EEO activity was a motivating factor in his
removal. ID at 11-12.
The appellant waived his affirmative defense of reprisal for filing a grievance.
The appellant appears to reassert his affirmative defense of reprisal for
filing a grievance on review. PFR File, Tab 1 at 9; IAF, Tab 7 at 12-14. In
Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18, we set forth a set of
nonexhaustive factors for consideration when determining whether an appellant
will be deemed to have waived or abandoned a previously raised affirmative
defense. The factors include: (1) the thoroughness and clarity with which the
appellant raised his affirmative defense; (2) the degree to which the appellant
continued to pursue his affirmative defense in the proceedings below after
initially raising it; (3) whether the appellant objected to a summary of the issues
to be decided that failed to include the potential affirmative defense when he was
specifically afforded an opportunity to object and the consequences of his failure
were made clear; (4) whether the appellant raised his affirmative defense or the
administrative judge’s processing of the affirmative defense claim in his petition
for review; (5) whether the appellant was represented during the course of his
appeal before the administrative judge and on petition for review, and if he was
not, the level of knowledge of Board proceedings possessed by the appellant; and12
(6) the likelihood that the presumptive abandonment of the affirmative defense
was the product of confusion, or misleading or incorrect information provided by
the agency or the Board. Id., ¶ 18.
As indicated in the prehearing conference summary, the appellant, through
his attorney, clarified that the only affirmative defense he was raising was
retaliation for his prior EEO activity and he withdrew his affirmative defenses of
reprisal for filing a grievance and discrimination on the basis of his race and
national origin. IAF, Tab 35 at 7. The appellant had the opportunity to object to
the administrative judge’s prehearing conference summary but did not. Id.
Subsequently, he stipulated that he was limiting his affirmative defense claim to
retaliation based on his EEO complaint, in which he alleged that he was
wrongfully denied a promotion. IAF, Tab 36 at 6, Tab 38 at 1.
Throughout this appeal, the appellant was represented by an attorney and
there is no evidence that his waiver of these affirmative defenses was due to
confusion or misleading or incorrect information provided by the administrative
judge or the agency. When weighing all these factors together, we find that the
appellant waived the affirmative defense of reprisal for filing a grievance and we
will not consider this issue further.
We do not consider the appellant’s laches claim.
The appellant also appears to raise an affirmative defense of laches on
review, arguing that the agency improperly delayed issuing the proposed removal.
PFR File, Tab 1 at 9-10. The record reflects that the appellant first raised this
argument in his April 5, 2019 closing brief.7 IAF, Tab 42 at 10. Because the
appellant submitted his closing brief after the March 22, 2019 deadline for filing
an objection to administrative judge’s ruling in the prehearing conference
summary that the Board would consider no affirmative defense other than the
appellant’s EEO retaliation claim, IAF, Tab 35 at 7, the administrative judge
7 The appellant’s closing brief is largely the same as his petition for review. Compare
IAF, Tab 42 at 6-10, with PFR File, Tab 1 at 5-10.13
properly did not address this affirmative defense on review, and we do not
address it here.
The administrative judge correctly found that the penalty of removal was
reasonable.
On review, the appellant also alleges that the penalty of removal was too
severe and should have been mitigated to a “written or verbal reprimand, remedial
training, suspension and/or demotion.” PFR File, Tab 1 at 7. He also disagrees
with the administrative judge’s finding that the deciding official properly
considered certain Douglas factors and seeks to reweigh the factors. Id. at 5-8.
When, as here, the agency’s charge has been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
of the relevant Douglas factors and exercised management discretion within
tolerable limits of reasonableness.8 Portner v. Department of Justice ,
119 M.S.P.R. 365, ¶ 10 (2013), overruled on other grounds by Singh v. U.S.
Postal Service, 2022 MSPB 15, ¶ 17. In determining whether the selected penalty
is reasonable, the Board gives due deference to the agency’s discretion in
exercising its managerial function of maintaining employee discipline and
efficiency. Id. The Board will modify a penalty only when it finds that the
agency failed to weigh the relevant factors or that the penalty the agency imposed
clearly exceeded the bounds of reasonableness. Id.
The appellant first asserts that his removal should have been mitigated
because he has an exemplary work record with no prior discipline, a history of
leadership, and has been recognized for his achievements in the past. PFR File,
Tab 1 at 5-6. As observed by the administrative judge, the deciding official
properly considered these mitigating factors, in addition to the appellant’s
military service, but determined that they were “not sufficient to overcome the
pattern of completely unacceptable conduct described in the proposal.” ID at 14;
8 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.14
IAF, Tab 7 at 32, 34. The appellant reasserts his argument that his situation is
“nearly identical” to the facts in Gleason v. Federal Deposit Insurance
Corporation, 29 M.S.P.R. 330 (1985), in which the Board, relying on the
appellant’s prior 22 years of service with the agency, found that the penalty of
removal was excessive and substituted a more appropriate penalty in its place.
PFR File, Tab 1 at 5-6; IAF, Tab 42 at 6. The administrative judge considered
this argument below and determined that Gleason was distinguishable from the
instant appeal. ID at 15. We agree.
In Gleason, the Board mitigated the penalty of removal to a 60-day
suspension for an appellant with 22 years of Federal service when only one
charge of falsification of travel vouchers was sustained, which resulted in the
appellant receiving $8.10 to which he was not entitled. Gleason, 29 M.S.P.R.
330, 331 & n.1. Here, as observed by the administrative judge, the appellant
engaged in a pattern of misconduct over a 2-year period which resulted in
significant material gain to the appellant. ID at 15. The record reflects that the
appellant received approximately $15,000 of excess pay for hours he did not
actually work. IAF, Tab 7 at 109. Therefore, we agree with the administrative
judge’s determination that Gleason is distinguishable from the facts of this appeal
and does not provide a basis to mitigate the penalty.
Next, the appellant reasserts his argument that the offense for which he was
charged has no negative effect on his ability to technically perform his job duties
at a satisfactory level. PFR File, Tab 1 at 6-7; IAF, Tab 42 at 7-8. However, the
deciding official considered the impact of his misconduct on the performance of
his job duties. IAF, Tab 7 at 33. She noted that he is “responsible to make
judgment calls that influence the safety of hundreds of aircrafts daily” and she
emphasized the importance of his ability to follow the agency’s policies and
procedures. Id. Ultimately, she determined that she had lost confidence in her
ability to trust the appellant’s judgment and honesty. Id.15
The appellant also argues that his penalty should be mitigated because he
accepted responsibility for the charge and has vowed to never repeat it. PFR File,
Tab 1 at 6-7; IAF, Tab 42 at 7-8. However, the administrative judge agreed with
the deciding official’s assessment that the appellant had failed to take full
responsibility for his actions. ID at 15; IAF, Tab 7 at 33. The deciding official
noted that the appellant’s “lack of true remorse” is apparent by how he minimized
the misconduct, such as calling it a “lapse in judgment,” and that his
characterization of the separate court proceeding indicated to her that he “fail[ed]
to accept responsibility for or recognize the severity of [his] misconduct.”9 IAF,
Tab 7 at 33. Thus, she properly considered these factors.
The appellant also argues that the agency has not demonstrated that the
penalty of removal is consistent with the agency’s penalty table. PFR File, Tab 1
at 7; IAF, Tab 42 at 8-9. The administrative judge found that the appellant,
contrary to his argument on review, failed to demonstrate that removal was
inconsistent with the agency’s table of penalties. ID at 15. We agree. As
observed by the administrative judge, the table of penalties lists removal as a
sanction for first offenses involving, as applicable here, forgery, providing false
or misleading information on government records, or lack of candor. ID at 15;
IAF, Tab 9 at 194-95. We observe that, although the table of penalties does not
include a penalty for the general charge of “unacceptable conduct,” it does
include penalties for the underlying conduct as described in the specifications.
IAF, Tab 9 at 194-203. Thus, removal is consistent with the agency’s penalty
table.10
9 On January 24, 2018, the appellant pled guilty to a misdemeanor count for violation of
California Penal Code section 487(A) (Grand Theft). IAF, Tab 23 at 5, Tab 9 at 229.
10 Similarly, the appellant asserts that the agency did not demonstrate that the imposed
penalty was consistent with those imposed on other employees. PFR File, Tab 1 at 7;
IAF, Tab 42 at 8. However, in order to trigger the agency’s burden, the appellant must
show that the charge and circumstances surrounding the charge are substantially similar
to those committed by a comparator. See Voss v. U.S. Postal Service , 119 M.S.P.R.
324, ¶ 6 (2013). Here, the appellant did not identify a comparator and thus the agency’s
burden was not triggered. Id16
Finally, the appellant argues that the agency did not meet its burden of
establishing that there was no less drastic alternative sanction that could have
been taken to deter the conduct at issue. PFR File, Tab 1 at 7-8. However, the
deciding official, who was also the proposing official, stated that she “considered
proposing a lesser penalty,” but that “the severity and duration of [the]
misconduct warrant[ed] nothing less than a proposed removal.” IAF, Tab 7 at
108. Thus, alternative sanctions were properly considered but deemed
inappropriate due to the severity of the conduct charged.
In light of the above, we agree with the administrative judge that the
deciding official correctly weighed the relevant Douglas factors, and that the
penalty of removal was reasonable. See Scheffler v. Department of Army ,
117 M.S.P.R. 499, ¶ 16 (2012) (recognizing that the Board has consistently held
that the penalty of removal for falsification and dishonest activity is within the
bounds of reasonableness because such activity raises serious doubts regarding
the appellant’s reliability, trustworthiness, and continued fitness for
employment), aff’d per curiam , 522 F. App’x 913 (Fed. Cir. 2013).
NOTICE OF APPEAL RIGHTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.17
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The18
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file19
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.12 . The court of appeals must receive your petition for
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 20
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 21
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.22 | Jimenez_MarkSF-0752-19-0069-I-1__Final_Order.pdf | 2024-07-03 | MARK JIMENEZ v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. SF-0752-19-0069-I-1, July 3, 2024 | SF-0752-19-0069-I-1 | NP |
1,064 | https://www.mspb.gov/decisions/nonprecedential/Brooks_DerexCH-1221-18-0596-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEREX BROOKS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-18-0596-W-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonay McCall , St. Louis, Missouri, for the appellant.
Beth K. Donovan , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to find that the appellant
established that he exhausted his administrative remedies before the Office of
Special Counsel (OSC) and nonfrivolously alleged that he made a protected
disclosure but failed to nonfrivolously allege that his protected disclosure was a
contributing factor in his removal, we AFFIRM the initial decision.
BACKGROUND
Effective February 13, 2018, the agency removed the appellant from his
Housekeeping Aid position within its Environmental Management Service (EMS)
in St. Louis, Missouri, for failing to abide by the terms of a last chance agreement
(LCA). Initial Appeal File (IAF), Tab 1 at 17, 22-23. In the decision letter, the
agency advised the appellant that he was entitled to appeal the removal to the
Board, seek corrective action before OSC, or file a discrimination complaint. Id.
at 23. It also informed him that if his appeal included an allegation of
whistleblowing retaliation, he may elect to file an appeal with the Board or OSC
and that his election would be based on which appeal he filed first. Id.
At some point prior to July 27, 2018, the appellant filed a complaint with
OSC alleging that his removal was taken as a result of his protected
whistleblowing activity. IAF, Tab 1 at 3, Tab 11 at 5. On August 21, 2018, OSC2
issued the appellant a close-out letter with appeal rights to the Board. IAF, Tab 1
at 3. This appeal followed.
The administrative judge issued an order apprising the appellant of the
applicable law and his burden of proof to establish jurisdiction over his claim and
directing him to provide evidence and argument amounting to a nonfrivolous
allegation of jurisdiction. IAF, Tab 3. The appellant did not respond.
Thereafter, the agency submitted its response to the appeal, arguing that the
appeal should be dismissed for lack of jurisdiction. IAF, Tab 7. After the close
of the record below, the appellant submitted a response to the agency’s pleading
in which he provided a portion of his OSC complaint. IAF, Tab 11. Without
holding the requested hearing, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 1 at 7, Tab 12, Initial
Decision (ID) at 2. She found that the appellant failed to show that he exhausted
his administrative remedies before OSC because he did not prove that he gave
OSC a sufficient basis to pursue an investigation that might lead to corrective
action. ID at 5-6. She further found that the appellant failed to provide sufficient
details to nonfrivolously allege that he made a protected disclosure. ID at 6-9. In
so finding, she considered the appellant’s late-filed submission. ID at 7 n.2.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1.2 The agency has filed a response in opposition. PFR File, Tab 3.
2 On January 15, 2020, the appellant filed a pleading with the Board seeking to
withdraw his petition for review. PFR File, Tab 7. Thereafter, on January 22, 2020,
and February 21, 2020, the Office of the Clerk of the Board issued orders requiring the
appellant to confirm his intent to withdraw the petition for review and his understanding
that any withdrawal is with prejudice to refiling with the Board. PFR File, Tabs 8-9.
Because the appellant failed to respond, the Office of the Clerk of the Board informed
him that it would take no further action regarding the withdrawal request and the Board
would issue a decision on his petition for review upon restoration of a quorum. PFR
File, Tab 10. The appellant has taken no further action to effect the withdrawal of his
petition, and thus, we address the merits of the petition for review.3
DISCUSSION OF ARGUMENTS ON REVIEW3
To establish jurisdiction in an IRA appeal, an appellant generally must
show by preponderant evidence that he exhausted his administrative remedies
before OSC and make nonfrivolous allegations that: (1) he made a disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A).
Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016),
overruled on other grounds by Requena v. Department of Homeland Security ,
2022 MSPB 39. The U.S. Court of Appeals for the Federal Circuit has found that
in the context of an IRA appeal, a nonfrivolous allegation is an allegation of
“sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369
(Fed. Cir. 2020). Once an appellant establishes jurisdiction over his IRA appeal,
he is entitled to a hearing on the merits of his claim, which he must prove by
preponderant evidence. Rebstock Consolidation v. Department of Homeland
Security, 122 M.S.P.R. 661, ¶ 9 (2015). For the reasons discussed below, we find
that the appellant has shown that he exhausted his administrative remedies before
OSC but failed to nonfrivolously allege that his alleged protected disclosure was
a contributing factor in his removal.
The appellant exhausted his administrative remedies before OSC.
Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
action from OSC before seeking corrective action from the Board. Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). The Board may
only consider those disclosures of information and personnel actions that the
appellant raised before OSC. Id. To satisfy the exhaustion requirement, the
3 We have reviewed the relevant legislation enacted during the pendency of this appeal
and conclude that it does not affect the outcome of the appeal.4
appellant must provide to OSC a sufficient basis to pursue an investigation that
might lead to corrective action. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10.
Here, the appellant submitted a portion of his OSC complaint in which he
stated that he believed the EMS department removed him in retaliation for
reporting his supervisor for physically assaulting him. IAF, Tab 11 at 5.
Specifically, he claimed that he reported the assault to the agency police and
provided them a report on the same day that the alleged assault occurred,
October 19, 2017. Id. He also claimed that the altercation with his supervisor
that day formed the grounds on which the agency first proposed his removal and
which resulted in the LCA. Id. at 6, 11-12. Under these circumstances, we find
that the appellant provided OSC with a sufficient basis to pursue an investigation
that might lead to corrective action regarding his removal. See Chambers,
2022 MSPB 8, ¶ 9; see also Swanson v. General Services Administration ,
110 M.S.P.R. 278, ¶ 8 (2008) (finding that an appellant satisfied the exhaustion
requirement when he informed OSC of the content of his disclosure, the
individual to whom it was made, the nature of the personnel actions allegedly
taken in retaliation, and the individuals responsible for taking those actions).
Accordingly, we find that the appellant demonstrated that he exhausted his
administrative remedies before OSC concerning his removal. See id.
The appellant nonfrivolously alleged that he made a protected disclosure under
5 U.S.C. § 2302(b)(8).
Protected whistleblowing occurs when an appellant makes a disclosure that
he reasonably believes evidences a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health and safety. Mason, 116 M.S.P.R. 135, ¶ 17.
The proper test for determining whether an employee had a reasonable belief that
his disclosures were protected is whether a disinterested observer with knowledge
of the essential facts known to, and readily ascertainable by, the employee could5
reasonably conclude that the actions evidenced a violation of a law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id.
The appellant alleged that his supervisor physically assaulted him on
October 19, 2017. IAF, Tab 11 at 5. As a result of the alleged assault, the
appellant claimed that he filed a report with the agency police on the same day.
Id. He further claimed that he went to the emergency room as a result of his
injuries from the assault. Id. The Board has held that an assault is a violation of
criminal law, and a disclosure that an assault occurred is a disclosure of a
violation of law, rule, or regulation. Lewis v. Department of Commerce ,
101 M.S.P.R. 6, ¶ 11 (2005). Under these circumstances, we find that the
appellant nonfrivolously alleged that he made a protected disclosure under
5 U.S.C. § 2302(b)(8) when he reported the alleged assault by his supervisor to
the agency police on October 19, 2017. See id. (explaining that there is no de
minimis exception for the violation-of-law aspect of the protected disclosure
standard).
The appellant nonfrivolously alleged that the agency subjected him to a personnel
action.
Here, the appellant claimed that the agency removed him in retaliation for
his whistleblowing activity. IAF, Tab 11 at 5. It is undisputed that the agency
removed the appellant, effective February 13, 2018. IAF, Tab 1 at 17.
Accordingly, we find that the appellant nonfrivolously alleged that the agency
subjected him to a personnel action under 5 U.S.C. § 2302(a)(2)(A). See Cochran
v. Department of Veterans Affairs , 67 M.S.P.R. 167, 174 (1995) (finding that a
removal action is a covered personnel action under section 2302(a)(2)(A)).
The appellant failed to nonfrivolously allege that his protected activity was a
contributing factor in the agency’s decision to take a personnel action against
him.
To satisfy the contributing factor criterion, an appellant need only raise a
nonfrivolous allegation that the fact or content of the protected disclosure or the6
protected activity was one factor that tended to affect the personnel action in any
way. See Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶¶ 13-14
(2016). One way to establish this criterion is the knowledge/timing test, under
which an employee may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official taking the personnel action knew of the disclosure or
activity and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor in the personnel action. See id. An appellant also may meet
his jurisdictional burden by making a nonfrivolous allegation of other evidence,
such as that pertaining to the strength or weakness of the agency’s reasons for
taking the personnel action, whether the protected disclosure or activity was
personally directed at the acting officials, and whether those individuals had a
motive to retaliate against the appellant. See Alarid v. Department of the Army ,
122 M.S.P.R. 600, ¶ 13 n.6 (2015); Rumsey v. Department of Justice ,
120 M.S.P.R. 259, ¶ 26 (2013).
Here, although the appellant claimed that the agency removed him in
retaliation for his whistleblowing activity, he did not allege that anyone involved
in the decision to remove him had actual or constructive knowledge of that
activity. IAF, Tab 11 at 5. Specifically, he did not allege that either the
proposing or deciding officials had knowledge of his disclosure to the agency
police on October 19, 2017, or that any other agency official was involved in the
decision to remove him. Thus, the appellant’s allegations do not satisfy the
knowledge/timing test. Nor did the appellant make nonfrivolous allegations that
would otherwise establish that his disclosure was a contributing factor in his
removal. Notably, he alleged that the substance of his disclosure to the agency
police pertained only to the October 19, 2017 altercation with his supervisor, and
he did not allege any wrongdoing by either the proposing or deciding official. Id.
at 5-6. Moreover, while the appellant claimed that the supervisor who allegedly7
assaulted him had a motive to retaliate against him given his disclosure to the
agency police, he did not allege that either the proposing or deciding official had
a motive to retaliate against him. While the appellant generally challenges the
merits of his removal, we find that he failed to nonfrivolously allege that his
protected disclosure was a contributing factor in that action.
The appellant’s arguments on review provide no basis to disturb the
administrative judge’s ultimate conclusion that the Board lacks jurisdiction over
his IRA appeal.
In his brief petition for review, the appellant claims to possess new
evidence of defamation and breach of contract regarding the LCA. PFR File,
Tab 1 at 1. These arguments, however, relate to the merits of the removal action
as opposed to his claims of whistleblower retaliation. Because the administrative
judge properly found that the appellant knowingly elected to pursue a complaint
with OSC in lieu of a direct appeal to the Board pursuant to 5 U.S.C. § 7701, the
Board lacks jurisdiction to review the merits of his removal pursuant to the LCA.
ID at 2 n.1; see Brooks v. Department of Veterans Affairs , MSPB Docket No. CH-
0714-18-0598-I-1, Initial Decision (Oct. 16, 2018); see also Agoranos v.
Department of Justice , 119 M.S.P.R. 498, ¶¶ 14-16 (2013).
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file10
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Brooks_DerexCH-1221-18-0596-W-1__Final_Order.pdf | 2024-07-03 | DEREX BROOKS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-18-0596-W-1, July 3, 2024 | CH-1221-18-0596-W-1 | NP |
1,065 | https://www.mspb.gov/decisions/nonprecedential/Haynes_Cynthia_D_CH-0714-18-0108-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA D. HAYNES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0714-18-0108-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David B. Carter , Esquire, Charlotte, Michigan, for the appellant.
Lauren Russo Ciucci , Esquire, Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of her removal taken pursuant to 38 U.S.C. § 714 as
untimely filed. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the length of the filing delay and why the appellant is not entitled to
waiver or tolling of the statutory filing deadline, we AFFIRM the initial decision.
BACKGROUND
¶2Effective November 19, 2017, the agency removed the appellant from her
Nursing Assistant position under the authority of 38 U.S.C. § 714 based on
charges of inappropriate conduct and violation of day room standard operating
procedure. Initial Appeal File (IAF), Tab 2 at 1-3, 10. The decision letter
advised the appellant of her right to appeal her removal to the Board “not later
than ten (10) business days after the date of [the] action.” Id. at 3. On
December 8, 2017, the appellant filed her Board appeal. IAF, Tabs 1-2. The
agency filed a motion to dismiss the appeal as untimely filed more than 10 days
after the effective date of her removal. IAF, Tab 10 at 4-5. During a status
conference, the appellant’s then-representative, a union official who had
represented her during the agency’s disciplinary investigation, asserted that the
appeal was not timely filed “because the computers were not operating properly
and the IT department was working to fix the issue.” IAF, Tab 12 at 1, Tab 32
at 4. 2
¶3The administrative judge subsequently issued a timeliness order, which
informed the appellant that her appeal appeared to be untimely by 5 business days
and directed her to show cause why the appeal should not be dismissed. IAF,
Tab 13 at 1-2. In her response, filed by a new designated representative, the
appellant acknowledged that her appeal was filed after the statutory time limit.
IAF, Tab 32 at 4. She asked for waiver of the time limit because she had relied
on the union official, who informed her that she would “immediately” file a
Board appeal of the removal decision. Id. at 4, 8. The appellant maintained that,
until her new representative informed her that she had been registered as an
e-filer, she had not received any case filings and was unaware that the appeal was
untimely filed because she did not use her email account and lacked internet
access at home. Id. at 4-5, 8. The agency filed a response in opposition. IAF,
Tab 33 at 4-7.
¶4Without holding the requested hearing, the administrative judge issued an
initial decision on March 6, 2018, dismissing the appeal as untimely filed. IAF,
Tab 34, Initial Decision (ID) at 2, 8. She found that it was undisputed that the
appellant filed her appeal on December 8, 2017, five business days beyond the
December 1, 2017 statutory filing deadline. ID at 2-3. Although the
administrative judge noted that, given the lack of quorum, the Board had not yet
issued guidance regarding the appropriate standard for excusing an untimely
filing under 38 U.S.C. § 714, the appellant’s explanations regarding her union
representative and infrequent use of email failed to show either that good cause
existed for her delay in filing or a basis for equitable tolling. ID at 3-7.
¶5The appellant filed another initial appeal of her removal with the Central
Regional Office on June 29, 2019, more than 15 months after the initial decision
was issued. Petition for Review (PFR) File, Tab 1. The Clerk of the Board
notified the appellant that the Board considered her submission to be a petition
for review in the present appeal and that the petition was untimely filed because it
was not filed by April 10, 2018. PFR File, Tab 2 at 1-2. The Clerk instructed the3
appellant how to file a motion to accept the petition as timely or to waive the time
limit for good cause. Id. at 2. The appellant did not file any such motion, and the
agency has not responded to the petition for review.
ANALYSIS
¶6The appellant’s brief arguments on review do not address the timeliness of
her initial appeal or petition for review. PFR File, Tab 1 at 2. Instead, she
challenges the merits of her removal, which she describes as a “wrongful
termination.” Id. We do not reach the apparent untimeliness of the appellant’s
petition for review because, for the following reasons, we find that she has failed
to present any basis for disturbing the initial decision dismissing the appeal as
untimely filed.
¶7Pursuant to 38 U.S.C. § 714(a)(1), “[t]he Secretary [of the Department of
Veterans Affairs] may remove, demote, or suspend a covered individual . . . if the
Secretary determines the performance or misconduct of the covered individual
warrants such removal, demotion, or suspension.” A “covered individual” is an
individual occupying a position at the agency, with four exceptions not relevant
here. See 38 U.S.C. § 714(h)(1)(A)-(D). Such individual may appeal to
the Board any removal, demotion, or suspension of more than 14 days. 38 U.S.C.
§ 714(c)(4)(A). However, an appeal “may only be made if such appeal is made
not later than 10 business days after the date of such removal, demotion, or
suspension.” 38 U.S.C. § 714(c)(4)(B).2
2 In mixed-case appeals, or appeals raising claims of discrimination, the procedures set
forth in 5 U.S.C. § 7702 and the Board’s implementing regulations—including the filing
deadline—apply, even when the action at issue was taken under 38 U.S.C. § 714. Davis
v. Department of Veterans Affairs , 2022 MSPB 45, ¶ 17; Wilson v. Department of
Veterans Affairs, 2022 MSPB 7, ¶¶ 15-25. Because the filing deadline is longer for a
mixed-case appeal than the filing deadline set forth in 38 U.S.C. § 714(c)(4)(B), a claim
of discrimination either before the agency or on appeal to the Board impacts our
timeliness determination. We have reviewed the record to determine whether the
appellant made a claim of discrimination, and we conclude that she has not. Notably,
she made no reference to discrimination below, and her vague reference to the race of
coworkers in her petition for review is not sufficiently developed to constitute a
discrimination claim. Even if the appellant’s statements on review were sufficient to4
¶8Here, the administrative judge found that the appellant was removed under
the authority of 38 U.S.C. § 714 effective November 19, 2017, and that any Board
appeal of that action was therefore due no later than December 1, 2017.
ID at 2-3. Because the appellant did not file her appeal until December 8, 2017,
the administrative judge found her appeal untimely filed by 5 business days.
ID at 3. However, the administrative judge erroneously included the
Thanksgiving Day Federal holiday, which fell within the filing period, in
calculating the deadline. Id.; see Ledbetter v. Department of Veterans Affairs ,
2022 MSPB 41, ¶ 7 n.2 (excluding weekends and Federal holidays when
calculating the filing deadline under 38 U.S.C. § 714(c)(4)(B)). Therefore, the
filing deadline for the present appeal was December 4, 2017, and the appeal was
untimely filed by 4 business days. Regardless of whether the filing deadline was
December 1 or December 4, 2017, however, the appellant’s December 8, 2017
appeal was untimely filed by at least 4 days. Thus, we discern no basis to disturb
the administrative judge’s determination that the appellant’s appeal was untimely
filed beyond the 10 business days statutory deadline.
¶9Although we agree with the administrative judge that the appellant is not
entitled to waiver or tolling of the filing deadline, we modify the initial decision
consistent with the following to clarify the basis for this holding. The
administrative judge found that, to the extent that such a waiver was applicable to
the present appeal, the appellant failed to establish that good cause existed to
excuse her untimely filed appeal. ID at 5-7. The Board has since held that the
filing deadline prescribed by 38 U.S.C. § 714 cannot be waived for good cause
shown. See Ledbetter, 2022 MSPB 41, ¶¶ 8-11. However, it may be subject to
equitable tolling or equitable estoppel. Id., ¶¶ 11-14. The doctrine of equitable
regard as a claim of a discrimination, she raises them for the first time on review, and
the Board will not consider an argument raised for the first time on review absent a
showing of new and material evidence not previously available despite due diligence.
See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). Accordingly, the
10-day filing deadline set forth in 38 U.S.C. § 714(c)(4)(B) applies. 5
tolling is a rare remedy that is to be applied in unusual circumstances and
generally requires a showing that the appellant has been pursuing her rights
diligently and some extraordinary circumstances stood in her way , such as being
induced or tricked by her adversary’s misconduct into allowing the deadline to
pass. Id., ¶ 13. The requirements for equitable estoppel are “even more
stringent,” requiring affirmative misconduct by the Government. Id., ¶ 12.
¶10For the reasons set forth in the initial decision, the appellant’s arguments
regarding her limited use of email and reliance on her union representative to
timely file the appeal do not constitute extraordinary circumstances that stood in
her way of making a timely filing. ID at 4-5; see Ledbetter, 2022 MSPB 41, ¶ 13;
Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981) (stating that it is
well settled that an appellant is responsible for the errors and omissions of her
chosen representative). Although the appellant argued that “any neglect on her
part was excusable neglect,” IAF, Tab 32 at 5, the doctrine of equitable tolling
does not apply to mere excusable neglect, Ledbetter, 2022 MSPB 41, ¶ 13. She
has provided no basis for disturbing the administrative judge’s finding that she
failed to diligently pursue her appeal but instead “turned the matter over to her
representative and did not monitor the appeal or check her email.” ID at 4-5.
Therefore, the administrative judge properly found that the appellant would not be
entitled to equitable relief. ID at 5; see Ledbetter, 2022 MSPB 41, ¶ 13.
¶11Accordingly, we deny the petition for review and affirm as modified the
initial decision.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular7
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 8
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of9
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Haynes_Cynthia_D_CH-0714-18-0108-I-1__Final_Order.pdf | 2024-07-03 | CYNTHIA D. HAYNES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-18-0108-I-1, July 3, 2024 | CH-0714-18-0108-I-1 | NP |
1,066 | https://www.mspb.gov/decisions/nonprecedential/Thomas_James_R_AT-844E-19-0720-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES REGINALD THOMAS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-19-0720-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Reginald Thomas , McDonough, Georgia, pro se.
Moraima Alvarez and Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision by the Office of Personnel Management
dismissing his application for disability retirement benefits as untimely filed. On
petition for review, the appellant requests that the Board consider additional
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
medical evidence. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
2 With the possible exception of an undated medication profile, the appellant’s newly
submitted documents predate the close of the record below. The medication profile
does not warrant a different result, and the appellant has not shown or alleged that the
remaining documents were previously unavailable despite his due diligence. See
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board
will not grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision);
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (holding that the Board
will not consider evidence submitted for the first time with the petition for review
absent a showing that it was unavailable before the record was closed despite the party's
due diligence).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Thomas_James_R_AT-844E-19-0720-I-1__Final_Order.pdf | 2024-07-03 | JAMES REGINALD THOMAS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-19-0720-I-1, July 3, 2024 | AT-844E-19-0720-I-1 | NP |
1,067 | https://www.mspb.gov/decisions/nonprecedential/Garland_Tracey_D_DC-831E-17-0792-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACEY DENISE GARLAND,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-831E-17-0792-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew J. Perlmutter , Esquire, and Gary M. Gilbert , Esquire, Silver
Spring, Maryland, for the appellant.
Albert Pete Alston, Jr. and Linnette Scott , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management (OPM)’s reconsideration decision
denying the appellant’s application for disability retirement. On petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, the appellant argues that she did, in fact, establish her entitlement to the
benefits she seeks.2 Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
2 The appellant argues on review that the administrative judge should have
considered various explanations for the apparent difference in handwriting in the
therapeutic notes and in the signatures of the appellant’s treating psychiatrist. Petition
for Review (PFR) File, Tab 1 at 11. The Board will generally not consider an argument
raised for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party's due diligence. Banks
v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). Here, the administrative
judge noted that he was required to scrutinize the documents without any explanation by
the appellant because she withdrew her hearing request. Thus, the Board need not now
consider the appellant’s explanations for the differences in handwriting because any
such argument is not based on new evidence. See Banks, 4 M.S.P.R. at 271.
In any event, identification of handwriting is to be determined by the trier of
fact, based upon lay or expert opinion or upon comparison with other handwriting
samples in evidence. Starr v. U.S. Postal Service , 80 M.S.P.R. 59, 61 (1998); Boyling
v. Department of the Army , 6 M.S.P.R. 276, 278 (1981). While we disagree with the
administrative judge’s characterization of some of the handwriting as “more masculine”
and other handwriting as written with a “female hand,” we concur with the
administrative judge’s assessment that there were differences in handwriting. Based on
our review, and in the absence of any reason in the record for the differences in
handwriting in the therapeutic notes and in the signatures of the appellant’s treating
psychiatrist, we agree that the differences in handwriting undermine the reliability of
the documents that were purportedly signed by the psychiatrist. See Borninkhof v.
Department of Justice , 5 M.S.P.R. 77, 87 (1981) (the assessment of the probative value
of hearsay evidence rests on the circumstances of each case).2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter. 3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Garland_Tracey_D_DC-831E-17-0792-I-1__Final_Order.pdf | 2024-07-03 | TRACEY DENISE GARLAND v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-831E-17-0792-I-1, July 3, 2024 | DC-831E-17-0792-I-1 | NP |
1,068 | https://www.mspb.gov/decisions/nonprecedential/Estrada_Wilson_H_AT-0752-20-0563-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILSON H. ESTRADA,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
AT-0752-20-0563-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wilson H. Estrada , Miami, Florida, pro se.
Jessica V. Johnson , Esquire, and Natalie Liem , Esquire, Atlanta, Georgia,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of a proposed 15-day suspension for lack of jurisdiction, and
alternatively as untimely. On petition for review, the appellant argues that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
agency failed to inform him that his prior removal appeal was timely and properly
before the Board, and he alleges various acts of misconduct by agency officials.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Estrada_Wilson_H_AT-0752-20-0563-I-1__Final_Order.pdf | 2024-07-03 | WILSON H. ESTRADA v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. AT-0752-20-0563-I-1, July 3, 2024 | AT-0752-20-0563-I-1 | NP |
1,069 | https://www.mspb.gov/decisions/nonprecedential/Estrada_Wilson_H_AT-0752-20-0160-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILSON H. ESTRADA,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
AT-0752-20-0160-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wilson H. Estrada , Miami, Florida, pro se.
Jessica V. Johnson , Esquire, and Natalie Liem , Esquire, Atlanta, Georgia,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal from his proposed removal for lack of jurisdiction and
alternatively as untimely. On petition for review, the appellant argues that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
agency failed to inform him that his prior removal appeal was timely and properly
before the Board, and he alleges various acts of misconduct by agency officials.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Estrada_Wilson_H_AT-0752-20-0160-I-1__Final_Order.pdf | 2024-07-03 | WILSON H. ESTRADA v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. AT-0752-20-0160-I-1, July 3, 2024 | AT-0752-20-0160-I-1 | NP |
1,070 | https://www.mspb.gov/decisions/nonprecedential/Estrada_Wilson_H_AT-0752-19-0239-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILSON H. ESTRADA,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
AT-0752-19-0239-I-1
DATE: July 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wilson H. Estrada , Miami, Florida, pro se.
Jessica V. Johnson , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as withdrawn. For the reasons set forth below, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
The appellant filed an appeal of his removal from the agency, and on
April 5, 2019, the administrative judge dismissed the appeal as withdrawn. Initial
Appeal File (IAF), Tab 11, Initial Decision. The initial decision was served on
the appellant the same day, by mail, at his address of record. IAF, Tab 12. The
appellant does not deny that he received the initial decision in due course of the
mails. See Robinson v. Department of Veterans Affairs , 72 M.S.P.R. 444, 451
(1996).
On June 7, 2020, the appellant filed a petition for review, suggesting that
he withdrew this mixed-case removal appeal because he mistakenly believed that
his removal was the subject of a pending equal employment opportunity
complaint. Petition for Review (PFR) File, Tab 1 at 4, 9 -10. The Office of the
Clerk of the Board issued an order, informing the appellant that his petition for
review appeared to be untimely filed and directing him to show either that it was
timely or that there was good cause for the delay. PFR File, Tab 4. The appellant
did not respond.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review must be filed within 35 days after the date upon
which the initial decision was issued, or if the initial decision was received more
than 5 days after the date of issuance, then within 30 days after the receipt of the
initial decision, whichever is later. 5 C.F.R. § 1201.114(e). The Board will
waive the time limit for filing a petition for review only upon a showing of good
cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause,
the appellant must show that he exercised due diligence or ordinary prudence in
the particular circumstances of the case. Quarles v. Department of Housing and
Urban Development , 47 M.S.P.R. 636, 638 (1991).2
The Board will not excuse even a minimal filing delay without a showing
of good cause, Smith v. Department of the Army , 105 M.S.P.R. 433, ¶ 6 (2007),
and in this case, the appellant’s petition for review was untimely by more than
1 year without any explanation at all. In the absence of a motion to address the
timeliness issue, the Board may still determine on the basis of the existing record
whether there was good cause for an untimely filing. Brown v. Department of the
Army, 108 M.S.P.R. 90, ¶ 8 n.2 (2008); 5 C.F.R. § 1201.114(g). However, our
review of the record reveals nothing that might establish good cause for the
significant untimeliness of this petition for review.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the removal appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Estrada_Wilson_H_AT-0752-19-0239-I-1__Final_Order.pdf | 2024-07-03 | WILSON H. ESTRADA v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. AT-0752-19-0239-I-1, July 3, 2024 | AT-0752-19-0239-I-1 | NP |
1,071 | https://www.mspb.gov/decisions/nonprecedential/Hambrick_CasanovaDC-0752-14-0454-C-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CASANOVA HAMBRICK,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-14-0454-C-3
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Casanova Hambrick , Clarkton, North Carolina, pro se.
Greg Allan Ribreau , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied his petition for enforcement and granted in part the agency’s motion to
dismiss. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2On review, the appellant states in general terms that his claims relating to
the Internal Revenue Service (IRS) reporting error and the cancellation of his life
insurance were “not correctly evaluated.” He also asserts that the agency failed
to restore the annual leave to which he was entitled under the terms of the
settlement agreement. Regarding the IRS reporting claim, mere disagreement
with the administrative judge’s findings and credibility determinations generally
does not warrant full review of the record by the Board . Weaver v. Department of
the Navy, 2 M.S.P.R. 129, 133 -34 (1980); see also Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997) (holding that the Board will not disturb an
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same). The appellant’s allegations concerning the
cancellation of his life insurance policy lie outside the scope of this petition for
enforcement.2 Finally, to the extent the appellant contends the agency failed to
2 If the appellant believes the cancellation of his life insurance policy involved a breach
of the settlement agreement, he may file a new petition for enforcement in accordance
with the procedures set forth at 5 C.F.R. § 1201.182. We make no finding here as to the
timeliness or merits of such a petition. 2
restore the annual leave to which he was entitled, that matter was decided on the
merits in an earlier petition for enforcement. See Hambrick v. U.S. Postal
Service, MSPB Docket No. DC-0752-14-0454-C-2 (Final Order, Jan. 6, 2017).
Consequently, he is precluded from relitigating the issue. See Senyszyn v.
Department of the Treasury , 113 M.S.P.R. 453, ¶¶ 9, 12 (2010) (applying the
doctrine of res judicata to dismiss the appellant’s petition for enforcement when
the Boad had previously issued a final judgment on the merits concerning the
identical back pay claim).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Hambrick_CasanovaDC-0752-14-0454-C-3__Final_Order.pdf | 2024-07-02 | CASANOVA HAMBRICK v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-14-0454-C-3, July 2, 2024 | DC-0752-14-0454-C-3 | NP |
1,072 | https://www.mspb.gov/decisions/nonprecedential/Bohon_Randy_A_DC-0752-19-0354-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDY A. BOHON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-19-0354-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Randy A. Bohon , Apollo Beach, Florida, pro se.
Roderick D. Eves , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The appellant is a preference eligible veteran whom the agency appointed
to the excepted service position of V-01 Real Estate Specialist, effective April 28,
2018. Initial Appeal File (IAF), Tab 1 at 2, Tab 4 at 64. The appointment was
subject to a 1-year probationary period. IAF, Tab 4 at 64. The agency terminated
the appellant’s employment effective February 16, 2019. Id. at 66-72.
The appellant filed a Board appeal, challenging the merits of the
termination and arguing that the agency violated his due process rights. IAF,
Tab 1 at 4, 11-13, 16-17. The appellant asserted that he had already completed
1 year of service when the agency terminated him because he had formed an
employment contract with the agency on February 6, 2018. Id. at 14-15, 18. He
also argued that his termination was based on partisan political reasons. IAF,
Tab 10 at 6. The agency moved to dismiss the appeal for lack of jurisdiction.
IAF, Tab 4 at 10-12.
After the close of the record, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 14, Initial2
Decision (ID). Although the administrative judge had not issued a jurisdictional
order in this appeal, he determined that the agency’s motion to dismiss was
sufficient to apprise the appellant of his burden and the issues involved.2 ID
at 3 n.1. The administrative judge found that the appellant was not an
“employee” with chapter 75 appeal rights, and that the regulatory right of appeal
under 5 C.F.R. § 315.806(b), for competitive service employees terminated for
partisan political reasons, was not available to him.3 ID at 4-5.
The appellant has filed a petition for review, challenging the administrative
judge’s jurisdictional analysis. Petition for Review (PFR) File, Tab 1.
The agency has filed a response. PFR File, Tab 3.
ANALYSIS
To establish the Board’s jurisdiction over a removal action, a Postal
Service employee must show that: (1) he was a preference eligible, a
management or supervisory employee, or an employee engaged in personnel work
in other than a purely nonconfidential clerical capacity; and (2) he completed
1 year of current, continuous service in the same or a similar position. 5 U.S.C.
§ 7511(a)(1)(B); 39 U.S.C. § 1005(a); see Reedy v. U.S. Postal Service ,
84 M.S.P.R. 453, ¶ 5 (1999); Johnson v. U.S. Postal Service , 66 M.S.P.R. 620,
626 (1995). It is undisputed that the appellant is a preference eligible. Therefore,
the issue is whether he had 1 year of current continuous service at the time of his
termination.
On petition for review, the appellant argues that, under contract law, an
employment contract existed between him and the agency beginning February 5,
2 We agree with the administrative judge that the agency’s motion to dismiss put the
appellant on notice of what he must do to establish jurisdiction. IAF, Tab 4 at 8-12.
We also find that the initial decision itself set forth the correct jurisdictional standard,
thus enabling the appellant to meet his jurisdictional burden on review. See Easterling
v. U.S. Postal Service , 110 M.S.P.R. 41, ¶ 11 (2008 ).
3 This finding was correct, and the appellant does not challenge it on review. See
Herbert v. U.S. Postal Service , 86 M.S.P.R. 80, ¶ 12 (2000) (finding that Postal Service
employees are not covered by 5 C.F.R. § 315.806).3
2018, and therefore he had more than 1 year of current continuous service at the
time of his February 16, 2019 termination. PFR File, Tab 1 at 2-4, 8. However,
Federal employment is not governed by contract principles. In the Federal
personnel system, employees are appointed to positions, with their terms of
employment being specified primarily in position descriptions. Appointment, not
contract law, is the central concept. Bartel v. Federal Aviation Administration ,
14 M.S.P.R. 24, 35-36 (1982), aff’d as modified , 30 M.S.P.R. 451 (1986). A
Federal appointment occurs when the appointing authority has performed the last
act to effect the appointment. Dardis v. Department of Defense , 9 M.S.P.R. 411
(1982). The record shows that, as of February 6, 2018, the appellant’s
appointment had not yet been finalized, IAF, Tab 1 at 18, and there is no evidence
to show that it was finalized at any time before he entered on duty. Moreover, the
statute requires that the appellant have at least 1 year of current continuous
service. 5 U.S.C. § 7511(a)(1)(B). Service begins when an individual enters on
duty, which in this case did not occur until April 28, 2018. IAF, Tab 4 at 64; see
Calixto v. Department of Defense , 120 M.S.P.R. 557, ¶ 19 (2014). Because the
appellant lacked 1 year of current continuous service at the time of his
termination, we agree with the administrative judge that he lacks Board appeal
rights under 5 U.S.C. chapter 75. ID at 4-5.
The appellant also argues that the agency violated his due process rights as
well as several provisions of the agency’s Employee and Labor Relations Manual.
PFR File, Tab 1 at 4-6, 8. However, the appellant’s arguments concerning due
process and procedural error do not confer upon the Board an independent basis
to review matters outside its statutory jurisdiction. See Anderson v. General
Services Administration , 56 M.S.P.R. 316, 320 (1993), aff’d, 12 F.3d 1069
(Fed. Cir. 1993); Riddick v. Department of the Navy , 41 M.S.P.R. 369, 372
(1989).
Finally, the appellant argues that the Board may have jurisdiction over
cases in which an employee was deceived or coerced into resigning or retiring.4
PFR File, Tab 1 at 6-8. This is true, but the appellant in this case did not resign
or retire; he was terminated. IAF, Tab 4 at 66-72. Moreover, the Board has
jurisdiction over such appeals only when the chapter 75 jurisdictional criteria
have otherwise been met, see Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8
(2013), which is not the case here.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on6
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Bohon_Randy_A_DC-0752-19-0354-I-1__Final_Order.pdf | 2024-07-02 | RANDY A. BOHON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-19-0354-I-1, July 2, 2024 | DC-0752-19-0354-I-1 | NP |
1,073 | https://www.mspb.gov/decisions/nonprecedential/Johnson_Roderick_O_DE-315H-19-0260-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RODERICK JOHNSON,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
DE-315H-19-0260-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Roderick Johnson , Albuquerque, New Mexico, pro se.
Angeline S. Reese , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to supplement the administrative
judge’s analysis, and to specifically find that the appellant is not an “employee”
pursuant to 5 U.S.C. § 7511(a)(1)(A)(i) or (ii), we AFFIRM the initial decision.
BACKGROUND
On August 16, 2009, the appellant received a career-conditional
appointment to the competitive service position of Customer Service
Representative (CSR); this appointment was subject to a 1-year probationary
period. Initial Appeal File (IAF), Tab 5 at 19. Effective May 26, 2017, the
appellant resigned from the position. Id. at 20. On July 8, 2018, the agency
selected the appellant for another CSR position; this appointment was also subject
to a 1-year probationary period. Id. at 21-22. Effective April 18, 2019, the
agency terminated the appellant, for post -appointment reasons, during his
probationary period. IAF, Tab 1 at 51-53, Tab 5 at 24.
The appellant appealed the termination to the Board. IAF, Tab 1. He did
not request a hearing. Id. at 2. The administrative judge issued an order
informing him of his burden to establish the Board’s jurisdiction and directing
him to file evidence and argument to prove that his appeal was within the Board’s
jurisdiction. IAF, Tab 3. The appellant responded that he was not required to2
serve a second probationary period because he had completed a probationary
period and met the service requirement for career tenure during his first
appointment; thus, he was eligible for reinstatement to the CSR position for his
second appointment. IAF, Tab 5 at 28, Tab 9 at 4-5. The agency moved to
dismiss the appeal for lack of jurisdiction, arguing, among other things, that even
if the appellant was eligible for reinstatement, the agency was not required to
reinstate him. IAF, Tab 8 at 4-11. The agency explained that, because the
appellant was appointed to the CSR position in July 2018 from a competitive list
of eligible candidates, he was required to complete a probationary period, which
he failed to do. Id. at 8-9.
The administrative judge issued a decision dismissing the appeal for lack of
jurisdiction, finding that the appellant was not an “employee” within the meaning
of 5 U.S.C. § 7511(a)(1)(A) and that he had not alleged any basis for review
under 5 C.F.R. § 315.806(b). IAF, Tab 10, Initial Decision (ID) at 2-3. In
reaching this determination, the administrative judge noted that the agency
appointed the appellant to his position from a competitive list of eligible
candidates, rather than by noncompetitive reinstatement, and that it had properly
exercised its managerial discretion in doing so. ID at 3.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He argues that he completed his probationary period during his first
appointment, he has career tenure, and the agency violated his rights, committed a
prohibited personnel practice, discriminated against him based on race, sex, and
religion, and retaliated against him due to prior equal employment opportunity
activity when it did not reinstate him. Id. at 4-7. The agency has opposed the
appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish Board jurisdiction under chapter 75, an individual must,
among other things, show that he meets the definition of “employee” set forth in3
5 U.S.C. § 7511(a)(1)(A). 5 U.S.C. § 7513(d); Walker v. Department of the
Army, 119 M.S.P.R. 391, ¶ 5 (2013). For an individual in the competitive
service, such as the appellant, this means that (i) he is not serving a probationary
or trial period under an initial appointment, or (ii) he has completed 1 year of
current continuous service under other than a temporary appointment limited to
1 year or less. 5 U.S.C. § 7511(a)(1)(A); Walker, 119 M.S.P.R. 391, ¶ 5. As
explained below, the appellant was not an “employee” under either prong of
5 U.S.C. § 7511(a)(1)(A).
The appellant was not an “employee” under 5 U.S.C. § 7511(a)(1)(A)(i).
The gravamen of the appellant’s arguments on review is that the agency
improperly imposed on him a second probationary period because he was eligible
to be noncompetitively reinstated pursuant to 5 C.F.R. § 315.401.2 PFR File,
Tab 1 at 4-7. We find that, notwithstanding the appellant’s apparent eligibility
for reinstatement, the agency was not required to—nor did it—reinstate him to the
CSR position in July 2018. Thus, the appellant had to serve a probationary
period. Because he did not complete his probationary period for the July 2018
appointment, he is not an employee under 5 U.S.C. § 7511(a)(1)(A)(i).
The appellant asserts on review that he completed the 3-year creditable
service requirement for career tenure described in 5 C.F.R. § 315.201(a)-(b) and
that his satisfaction of this service requirement should count toward the
completion of his probationary period for his July 2018 appointment. Id. at 4-5.
However, the service requirement for career tenure in 5 C.F.R. § 315.201(a)-(b) is
not relevant to whether the appellant is an employee with chapter 75 appeal rights
under 5 U.S.C. § 7511(a)(1)(A)(i).
The appellant also asserts he was not required to serve a probationary
period for his July 2018 appointment because his earlier appointment satisfied the
2 Pursuant to 5 C.F.R. § 315.401(a), an agency may appoint by reinstatement to a
competitive service position a person who previously was employed under career or
career-conditional appointment (or equivalent).4
criteria of 5 C.F.R. §§ 315.201(c)(4)3 and 315.801(a)(2). Id. at 6. The regulation
at 5 C.F.R. § 315.201(c)(4) states that the service requirement for career tenure
does not apply to the reinstatement of a person who once completed the service
requirement for career tenure. Pursuant to 5 C.F.R. § 315.801(a)(2), the first year
of service of an employee who is given a career or career-conditional appointment
in the competitive service is a probationary period when the employee was
reinstated under subpart D (5 C.F.R. §§ 315.401-.403), unless during any period
of service that affords a current basis for reinstatement, the employee completed a
probationary period or served with competitive status under an appointment that
did not require a probationary period. In essence, these arguments boil down to
whether the appellant was appointed from a competitive list of eligibles or
whether he was reinstated in July 2018. We must therefore determine the nature
of the appellant’s July 2018 appointment.
It is undisputed that, at the time of his July 2018 appointment, the appellant
was eligible to be reinstated under 5 C.F.R. § 315.401. PFR File, Tab 1 at 5,
Tab 3 at 6. It does not appear from the evidence in the record, however, that he
was actually appointed under this legal authority. A review of the appointing
SF-50 is instructive.
According to the Office of Personnel Management (OPM) Guide to
Processing Personnel Actions, if the appointment is based on a certificate issued
from a civil service register maintained by an agency with a delegation of
competitive examining authority from OPM or special examining unit authorized
by OPM, the person is not on the agency’s rolls, and the appointment is career,
the nature of action code is “100,” the nature of action is “career appt [sic],” the
authority code is “BWA,” and the authority is “OPM DE Agr (enter#).” OPM,
Guide to Processing Personnel Actions, Chapter 9, Table 9-A, Rule 15, at 9-11,
https://www.opm.gov/policy-data-oversight/data-analysis-documentation/
3 Although the appellant cited 5 C.F.R. § 315.201(H)(c)(4) throughout his petition for
review, PFR File, Tab 4 at 4-6, we believe that he is referring to 5 C.F.R. § 315.201(c)
(4), which discusses the exception to the service requirement for career tenure.5
personnel-documentation/processing-personnel-actions/gppa09.pdf (last visited
July 1, 2024). The appellant’s appointing SF -50 for his July 2018 appointment
contained these codes and authorities as well as a notation that he was selected
from “CERT 20180616-CAKE-001”; thus, the SF -50 reflects that he was
appointed from a competitive list of eligibles. IAF, Tab 5 at 21. The SF-50 also
expressly stated that the appellant was required to complete a 1 -year probationary
period, id. at 22, and the administrative judge noted below that the appellant was
notified of the same at the time he was rehired, IAF, Tab 7 at 1. Although “the
SF–50 is not a legally operative document controlling on its face an employee’s
status and rights,” it still can be considered as evidence when determining the
nature of an action. Grigsby v. Department of Commerce , 729 F.2d 772, 776
(Fed. Cir. 1984). In addition to the appointing SF-50, the vacancy announcement
for the CSR position listed as a requirement that the selectees, among which the
appellant was included, complete a 1-year probationary period. IAF, Tab 1 at 34.
Based on this evidence, the administrative judge properly found that the agency
exercised its discretion to appoint the appellant to the CSR position in July 2018
from a competitive list of eligibles and not by reinstatement.4 ID at 2-3.
The appellant cites to Abdullah v. Department of the Treasury ,
113 M.S.P.R. 99 (2009), for the proposition that his appeal should be remanded
for the administrative judge to resolve whether he was a “career employee” with
adverse action appeals rights pursuant to 5 U.S.C. § 7511(a)(1)(A). PFR File,
Tab 1 at 7. The appellant’s reliance on Abdullah is misplaced. Importantly, the
4 The appellant takes issue with the fact that the agency opted not to reinstate him under
5 C.F.R. § 315.401. PFR File, Tab 1 at 6-7. However, as discussed herein, the plain
language of 5 C.F.R. § 315.401 is permissive rather than mandatory. See, e.g.,
Rhinehart v. Department of Health , Education, and Welfare, Social Security
Administration, Office of Hearings and Appeals , 4 M.S.P.R. 104, 105 (1980) (noting
that an agency has discretion to determine whether it will appoint the appellant from a
competitive list of eligibles or by noncompetitive reinstatement). Moreover, the Board
lacks jurisdiction over an agency’s decision not to reinstate an employee under 5 C.F.R.
§ 315.401. See Hipona v. Department of the Army , 39 M.S.P.R. 522, 525 (1989)
(finding that 5 C.F.R. § 315.401 does not provide the Board with jurisdiction over an
agency’s alleged denial of reinstatement rights under that section). 6
appellant incorrectly states that the Board found that Mr. Abdullah was an
“employee” with chapter 75 appeal rights. Id. To the contrary, the Board
remanded the probationary termination appeal because the issue of whether Mr.
Abdullah was an employee under 5 U.S.C. § 7511(a)(1)(A)(i) was not addressed
below, and the record was not developed on the nature of the appellant’s
appointment. Abdullah, 113 M.S.P.R. 99, ¶¶ 9-14. This matter is distinguishable
from Abdullah because, here, the appellant did not request a hearing, the parties
had ample opportunity to develop the evidence in the record, and there are no
factual matters in dispute the resolution of which could be the basis for
determining Board jurisdiction over the probationary termination.
Because the record reflects that the appellant was appointed from a
competitive list of eligibles in July 2018, he was required to serve a probationary
period under 5 C.F.R. § 315.801(a)(1). We agree with the administrative judge
that the appellant had not yet completed the probationary period for his July 2018
appointment when the agency terminated him in April 2019. Thus, the appellant
was not an “employee” under the first prong of 5 U.S.C. § 7511(a)(1)(A).
The appellant was not an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii).
Because it was not explicitly discussed in the initial decision, we
supplement the administrative judge’s analysis to find that the appellant was not
an “employee” under the second prong of 5 U.S.C. § 7511(a)(1)(A). See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision). The appellant did not dispute that he
had not yet completed 1 year of current continuous service for his July 2018
appointment when the agency terminated him. IAF, Tab 5 at 21-22, 24.
He resigned from his CSR position in May 2017, more than one year before his
July 2018 appointment. Id. at 20. The appellant’s prior Federal civilian service
does not count toward completion of the probationary period because there was a
break in service of more than 30 days. 5 C.F.R. § 315.802(b)(3). Regarding the7
appellant’s assertion that he has 20 years of military service with an honorable
discharge, PFR File, Tab 1 at 4; IAF, Tab 1 at 24-25, military service cannot be
tacked onto Federal civilian service to satisfy the current continuous service
requirement, Wilder v. Merit Systems Protection Board , 675 F.3d 1319, 1321-23
(Fed. Cir. 2012). Thus, the appellant was not an “employee” under the second
prong of 5 U.S.C. § 7511(a)(1)(A).
Conclusion
Based on the foregoing, the administrative judge properly dismissed the
appeal for lack of jurisdiction because the appellant was not an employee under
5 U.S.C. § 7511(a)(1)(A). We have considered the appellant’s other arguments in
his petition for review, but none warrant a different outcome. For example, the
appellant’s challenge to the merits of the agency’s decision to terminate him
provides no basis to disturb the initial decision. PFR File, Tab 1 at 4; see
Yakupzack v. Department of Agriculture , 10 M.S.P.R. 180, 182 (1982) (stating
that the Board’s review of probationary terminations does not include a review of
the merits of the termination action).
The appellant argues that the agency discriminated against him based on
race, sex, and religion, retaliated against him for prior EEO activity, and
committed prohibited personnel practices. PFR File, Tab 1 at 4-6. The Board
lacks jurisdiction to hear these arguments in the absence of an otherwise
appealable action. See Cruz v. Department of the Navy , 934 F.2d 1240, 1245-46
(Fed. Cir. 1991) (holding that, absent an otherwise appealable action, the Board
lacks jurisdiction to consider allegations of discrimination and retaliation); Wren
v. Department of the Army , 2 M.S.P.R. 1, 2 (1980) (stating that prohibited
personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
Board jurisdiction), aff’d, 681 F.2d 867, 871 -73 (D.C. Cir. 1982).
Accordingly, we affirm the initial decision as modified herein.8
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any10
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s11
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 13 | Johnson_Roderick_O_DE-315H-19-0260-I-1__Final_Order.pdf | 2024-07-02 | RODERICK JOHNSON v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. DE-315H-19-0260-I-1, July 2, 2024 | DE-315H-19-0260-I-1 | NP |
1,074 | https://www.mspb.gov/decisions/nonprecedential/Cuyler_JamesAT-844E-19-0403-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES M. CUYLER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-19-0403-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James M. Cuyler , Riverview, Florida, pro se.
Shawna Wheatley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision by the Office of Personnel Management
(OPM) denying the appellant’s application for a Federal Employees’ Retirement
System (FERS) disability retirement annuity. Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The appellant is a Health Technician (Optometry) with the Department of
Veterans Affairs. Initial Appeal File (IAF), Tab 6 at 81. In early 2018, he
applied for a disability retirement annuity under FERS, asserting bilateral chronic
foot pain, ankle pain, severe/major depression, migraines, memory loss, and
traumatic brain injury. Id. at 32. He further asserted that he became disabled in
December 2012. Id.
OPM denied his application for disability retirement in January 2019.
Id. at 28. According to OPM, the appellant’s medical documentation contained
insufficient evidence to determine the appellant’s specific work restrictions or
that he was unable to work. Id. at 29. The appellant requested reconsideration of
OPM’s initial decision. Id. at 17-20. He asserted that he was not attaching
additional information and argued that the medical documentation previously
provided was sufficient to establish his disability. Id. OPM subsequently2
requested additional documents and information from the appellant, such as
documentation of medical treatment in closer proximity to his disability
application, reflecting work restrictions, or referencing any accommodation
requests the appellant had made to the agency. Id. at 23-25. The appellant
responded, again asserting that he would not be sending additional evidence, and
accused OPM of violating criminal laws in requesting more documentation from
him. Id. at 21-22. He finally asserted that he reserved the right to seek criminal
charges against the OPM director and suggested there was a conspiracy to deny a
valid application for disability retirement. Id. at 22.
On March 20, 2019, OPM issued a final decision affirming its initial
decision denying the appellant’s application for a FERS disability retirement
annuity. Id. at 6-14. The appellant appealed this decision to the Board.
IAF, Tab 1. The agency did not timely file its response to the appellant’s appeal.
IAF, Tab 2 at 6, Tab 3. Two days after it was due, the agency requested an
extension. IAF, Tab 3. The administrative judge extended the deadline by
30 days. IAF, Tab 4. The agency eventually submitted the file, 6 days beyond
the granted 30-day extension. IAF, Tab 6. The appellant filed a motion for
sanctions against the agency, based on failure to timely submit its response even
after the extension. IAF, Tab 8 at 1-2. The administrative judge interpreted it as
a motion to strike the agency’s response from the record as untimely and denied
the motion, finding that the evidence did not reflect that the appellant was
prejudiced by the agency’s 6-day delay. IAF, Tab 11 at 1. The appellant
additionally submitted a request for the administrative judge to disqualify himself
based on bias and prejudice for allowing the agency not to follow orders,
untimely submit documents, and miss the originally scheduled and then the
rescheduled pre-hearing phone conference, and because the administrative judge
denied the appellant’s motion for sanctions. IAF, Tab 12 at 1.
Following a hearing, the administrative judge issued an initial decision
affirming OPM’s reconsideration decision, which denied the appellant’s3
application for FERS disability retirement. IAF, Tab 14, Initial Decision (ID)
at 1. The administrative judge found that the appellant’s medical evidence only
demonstrated the bilateral chronic foot pain, depression, and memory loss, but
that it included no evidence of ankle pain, migraines, or traumatic brain injury.
ID at 6. The administrative judge determined that the appellant failed to prove
that his documented conditions were disabling. ID at 7-10. The administrative
judge denied the appellant’s request that he recuse himself, finding that the
appellant’s claims of bias were based on mere disagreement with the
administrative judge’s rulings. ID at 1-2 n.1.
The appellant filed a petition for review and attached various documents
which are in the record below. Petition for Review (PFR) File, Tab 1; IAF, Tab 1
at 8-14, 20-35. OPM has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly determined that the appellant failed to meet his
burden of proving entitlement to disability retirement.
An individual bears the burden of proving by preponderant evidence his
entitlement to disability retirement.2 Henderson v. Office of Personnel
Management, 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 1201.56(b)(2)(ii). To
qualify for disability retirement benefits under FERS, an individual must meet the
following requirements: (1) the individual must have completed at least
18 months of creditable civilian service; (2) the individual, while employed in a
position subject to FERS, must have become disabled because of a medical
condition resulting in a deficiency in performance, conduct, or attendance, or if
there is no such deficiency, the disabling medical condition must be incompatible
with either useful and efficient service or retention in the position; (3) the
disabling medical condition must be expected to continue for at least 1 year from
the date the disability retirement benefits application is filed; (4) accommodation
2 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
of the disabling medical condition in the position held must be unreasonable; and
(5) the individual must not have declined a reasonable offer of reassignment to a
vacant position. Henderson, 109 M.S.P.R. 529, ¶ 8; 5 C.F.R. § 844.103(a); see
5 U.S.C. § 8451(a) (providing the statutory language on which 5 C.F.R.
§ 844.103(a) is based). The main dispute before us is whether the appellant met
his burden of proving the second element.3
On review, the appellant essentially argues that because OPM admitted that
he has medical conditions, he has satisfied his burden of proving eligibility for
disability retirement. PFR File, Tab 1 at 5. The administrative judge found that
the appellant had medical conditions. ID at 10. However, this satisfies only a
portion of the second element. The administrative judge further found that the
appellant failed to show a deficiency in performance, conduct, or attendance, and
that the medical documentation did not demonstrate that his medical conditions
were incompatible with either useful and efficient service or retention in the
position. ID at 7-10. There are two ways to meet the statutory requirement that
the individual “be unable, because of disease or injury, to render useful and
efficient service in the employee’s position”; namely, by showing that the
medical condition (1) caused a deficiency in performance, attendance, or conduct
or (2) is incompatible with useful and efficient service or retention in the
position. 5 U.S.C. § 8451(a)(1)(B); Jackson v. Office of Personnel Management ,
118 M.S.P.R. 6, ¶ 7 (2012). Under the first method, an individual can establish
entitlement by showing that the medical condition affects his ability to perform
specific work requirements, prevents him from being regular in attendance, or
3 The appellant additionally appears to raise a challenge based on the fourth and fifth
elements, citing to an agency certification of reassignment and accommodations efforts,
which states that “accommodation is not possible due to the severity of the medical
condition.” PFR File, Tab 1 at 6; IAF, Tab 6 at 37-38. The certification also states that
reassignment to a vacant position is not possible. IAF, Tab 6 at 38. The administrative
judge made no finding as to whether accommodation was possible, but concluded that
the appellant had not declined an offer of reassignment. ID at 7. We decline to revisit
those findings here because, as set forth below, we find that the appellant has failed to
meet his burden regarding the second element.5
causes him to act inappropriately. Jackson, 118 M.S.P.R. 6, ¶ 8. Under the
second method, an individual can establish entitlement by showing that the
medical condition is inconsistent with working in general, working in a particular
line of work, or working in a particular type of setting. Id.
The administrative judge found, and we agree, that the appellant failed to
prove his conditions caused deficiencies in performance, attendance, or conduct.
ID at 7. Here, the supervisor’s statement in connection with the appellant’s
application for FERS disability retirement noted that his performance, attendance,
and conduct were all satisfactory and acceptable. IAF, Tab 6 at 34-35.
Moreover, the agency rated the appellant’s performance for the performance
period covering October 2016 to September 2017 as fully successful in every
element. Id. at 48-52.
On review, the appellant reasserts his argument from below that his major
depressive disorder “is considered a safety issue for myself and others because I
am (an Eye Technician).” PFR File, Tab 1 at 5; IAF, Tab 9 at 3 (emphasis
removed). The administrative judge did not specifically address the purported
safety issue. We conclude that the appellant failed to prove that his medical
condition caused a safety concern. He provided no specific information about
how safety might be impacted. The record reflects that the appellant’s job has
“moderate risk of discomforts which require special safety precautions.”
IAF, Tab 6 at 47. The appellant’s performance appraisal reflects an ability to
observe these safety precautions. Specifically, the agency stated on his
performance evaluation that he followed safety precautions and was “able to
identify and notify the appropriate personnel of any hazards that he sees.” Id.
at 51. Thus, the evidence does not support the appellant’s claim of an unspecified
safety issue.
The administrative judge also found that the appellant failed to prove that
his condition was inconsistent with working in general, in a particular line of
work, or in a particular setting. ID at 7-10. The medical evidence presented by6
the appellant demonstrates that he was diagnosed with various medical conditions
in 2015 and 2016. IAF, Tab 6 at 40-42. It also states possible symptoms, such as
“periodic anxiety” and “lapses in memory,” without providing any specifics as to
what might trigger these symptoms or how they might affect the appellant either
generally or in a specific setting. Id. The appellant’s testimony at the hearing
provided no further details or clarification as to how his medical conditions
affected his ability to work in any capacity. IAF, Tab 13, Hearing Compact Disc
(testimony of the appellant).
On review, the appellant cites Bruner v. Office of Personnel Management ,
996 F.2d 290 (Fed. Cir. 1993), apparently in support of his position. PFR File,
Tab 1 at 7. In Bruner, the U.S. Court of Appeals for the Federal Circuit held that
when an employing agency separates an individual for medical inability to
perform his position, it creates a presumption that the individual is disabled for
purposes of entitlement to a retirement annuity. Bruner, 996 F.2d at 294. The
holding in Bruner is inapplicable here, because the appellant continues to work
and his employing agency considers him able to do so. As such, we agree with
the administrative judge that the appellant has failed to meet his burden of
proving, by preponderant evidence, that he is unable, because of disease or injury,
to render useful and efficient service in his position.
In analyzing the appellant’s medical evidence, the administrative judge
found that the record revealed no evidence concerning the appellant’s assertion of
ankle pain. ID at 6. This was erroneous, as the appellant provided a July 27,
2016 letter from a healthcare provider stating that, in addition to the appellant’s
bilateral foot pain, he suffered from left ankle pain. IAF, Tab 6 at 40. The
appellant does not raise this issue on review. We find that this error was
harmless, as it does not alter our assessment of the appellant’s failure to meet his
burden of proof. See Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (finding an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).7
The administrative judge did not abuse his discretion.
The appellant challenges the administrative judge’s procedural rulings,
including his denial of the appellant’s motion for sanctions. PFR File, Tab 1 at 4.
We decline to disturb these rulings.
Administrative judges have broad discretion pursuant to 5 C.F.R.
§ 1201.41(b), including the authority to rule on discovery motions, hold
prehearing conferences, convene hearings, and impose sanctions. See Guzman v.
Department of Veterans Affairs , 114 M.S.P.R. 566, ¶ 12 (2010) (discussing the
discretion the Board has given to administrative judges). The imposition of
sanctions is a matter within the administrative judge’s sound discretion and,
absent a showing that such discretion has been abused, the administrative judge’s
determination will not be found to constitute reversible error . El v. Department
of Commerce, 123 M.S.P.R. 76, ¶ 16 (2015), aff’d per curiam , 663 F. App’x 921
(Fed. Cir. 2016). The administrative judge here denied the appellant’s motion for
sanctions, finding that OPM’s 6-day delay in submitting the agency file did not
prejudice the appellant. IAF, Tab 11 at 1.
We discern no abuse of discretion in this ruling. The appellant has not
presented evidence that the delay prejudiced him. The documents contained in
the agency’s file are generally the same documents included in the appellant’s
prehearing submission. IAF, Tabs 6, 9. It is the appellant’s burden to prove
entitlement to disability retirement, and the administrative judge’s decision relied
on the appellant’s own medical documentation, which the administrative judge
found lacking. ID at 7-10. Accordingly, we find that the appellant has failed to
present evidence of prejudice. In addition, as the administrative judge observed,
the Board lacks authority to enter a “default judgment” as a sanction against
OPM, as such a ruling would, in effect, grant the appellant retirement benefits
when he is not legally entitled to them. ID at 1-2 n.1; Strickler v. Office of
Personnel Management , 51 M.S.P.R. 354, 358 (1991). 8
The appellant has failed to demonstrate bias or prejudice on the part of the
administrative judge.
The appellant asserts on review that the administrative judge was biased
and prejudiced against him in granting OPM’s request for an extension to file its
response, allowing it to untimely file required documents, denying his motion for
sanctions, allowing the agency to miss pre-hearing phone conferences and the
hearing, and “lying” about the appellant’s citation to two Federal regulations,
which the administrative judge stated did not apply to the matter at issue.
PFR File, Tab 1 at 4. We disagree.
In making a claim of bias or prejudice against an administrative judge, the
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Scoggins v. Department of the Army , 123 M.S.P.R.
592, ¶ 19 (2016). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if his comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id. (quoting Bieber v. Department of the Army , 287 F.3d 1358,
1362-63 (Fed. Cir. 2002) (citation omitted)). Moreover, a party must show that
the bias constitutes extrajudicial conduct rather than conduct arising in the
administrative proceedings before him. Tyler v. U.S. Postal Service , 90 M.S.P.R.
545, ¶ 6 (2002) . The fact that an administrative judge ruled against a party is
insufficient evidence to show bias. Id.
Here, the appellant’s claim that the administrative judge is biased must fail
because it is based entirely on the administrative judge’s rulings regarding the
appellant’s allegations in his proceeding. See id., ¶ 7 (concluding there were
insufficient grounds to find bias when an administrative judge did not reject the
appellant’s material factual allegations, but rather, disposed of the claims on
purely legal grounds). The administrative judge’s exercise of his discretion to
accept the agency’s late submission and failure to appear for prehearing9
conferences and the hearing does not demonstrate a deep-seated favoritism or
antagonism against the appellant that makes fair judgment impossible.4
Regarding the appellant’s assertion that the administrative judge “lied”
regarding the applicability of 20 C.F.R. §§ 404.940 and 416.1440, we agree with
the administrative judge, who found that the Federal regulations cited are
inapplicable to Board proceedings. ID at 1 n.1. The regulations cited by the
appellant involve disqualification of administrative law judges before the Social
Security Administration, and, thus, are inapplicable to the Board’s administrative
judges. The Board has similar procedures for requesting disqualification under
5 C.F.R. § 1201.42. However, as set forth above, the appellant has failed to
establish bias by the administrative judge; therefore, he did not present a basis for
disqualification. See Herman v. Department of Justice , 119 M.S.P.R. 642, ¶ 11
(2013) (finding that, because the appellant did not provide sufficient evidence to
overcome the presumption of honesty and integrity on the part of an
administrative judge, he also did not prove the administrative judge abused his
discretion in denying the appellant’s motion for recusal).
The appellant has failed to demonstrate that he was deprived of his due process.
The appellant asserts on review that the administrative judge violated his
due process rights when he “became an Advocate for the Agency” in the absence
of the agency’s representative at the hearing. PFR File, Tab 1 at 4. The appellant
has a property interest in his disability retirement benefits. Tompkins v. Office of
Personnel Management , 72 M.S.P.R. 400, 407 (1996) (so finding in the case of an
employee covered by the Civil Service Retirement System). The due process
right includes the right to a hearing before the Board. See Cleveland Board of
4 As the hearing order noted, if the agency representative failed to appear, the hearing
would proceed as scheduled. IAF, Tab 7 at 1. The agency’s absence at the prehearing
conferences and the hearing presumably was beneficial to the appellant, as it allowed
him to testify without cross-examination and prevented the agency from making closing
arguments. See IAF, Tab 11 at 4 (informing the parties that the agency could
cross-examine the appellant and both parties could present closing arguments at the
hearing).10
Education v. Loudermill , 470 U.S. 532, 546-47 (1985) (recognizing that due
process includes the right of a tenured employee to an administrative hearing).
However, as we explained above, we find nothing improper in the administrative
judge’s conduct during the hearing. Thus, we are not persuaded that he
effectively deprived the appellant of his administrative hearing.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on12
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or13
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Cuyler_JamesAT-844E-19-0403-I-1_Final_Order.pdf | 2024-07-02 | JAMES M. CUYLER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-19-0403-I-1, July 2, 2024 | AT-844E-19-0403-I-1 | NP |
1,075 | https://www.mspb.gov/decisions/nonprecedential/Orozco_Dan_J_SF-844E-19-0594-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAN J. OROZCO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-19-0594-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dan J. Orozco , Stockton, California, pro se.
Appeals Officer , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of an Office of Personnel Management (OPM) initial
decision for lack of jurisdiction. On petition for review, the appellant argues that
he does not have a steady living situation or regular access to a computer, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
that he became ill due to his working conditions and was too “incapacitated” to
make “good decisions” in a “timely manner.” Petition for Review (PFR) File,
Tab 1 at 2. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 In his petition for review, the appellant also requests a hearing. PFR File, Tab 1 at 3.
The Board’s regulations do not provide for a hearing at the petition for review level.
To the extent that the appellant is asserting that the administrative judge erred by not
affording him a hearing, the appellant did not request a hearing in his initial submission
to the Board and did not respond to the acknowledgment order affording him an
opportunity to request a hearing. Initial Appeal File (IAF), Tabs 1, 3, Tab 4 at 1. The
acknowledgment order informed the appellant that a failure to timely request a hearing
would result in a waiver of his right to a hearing. IAF, Tab 4 at 1; see Robinson v.
Department of the Army, 50 M.S.P.R. 412, 417 (1991) (stating that the failure to timely
request a hearing will result in a waiver of that right). Even if the appellant’s housing
situation and other circumstances established good cause for his failure to timely
request a hearing, an appellant is only entitled to a hearing when he makes nonfrivolous
allegations of fact which, if proven, could establish a prima facie case of Board
jurisdiction. Liu v. Department of Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007). To
constitute a nonfrivolous allegation, the appellant must make an allegation that, among
other things, is more than conclusory; mere pro forma allegations are insufficient to
satisfy the nonfrivolous standard. 5 C.F.R. § 1201.4(s)(1); see Lara v. Department of
Homeland Security, 101 M.S.P.R. 190, ¶ 7 (2006). While the appellant asserts on
review that he is submitting OPM’s final decision, the document filed with his petition
for review is a copy of OPM’s initial decision. PFR File, Tab 1 at 2-3. His claim about2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
submitting OPM’s final decision does not constitute a nonfrivolous allegation of
jurisdiction. Should OPM issue a final or reconsideration decision, the appellant may
file an appeal with the Board, consistent with Board procedures.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in 2302(b)(8), or 2302(b)(9)(A)(i), (B),
(C), or (D),” then you may file a petition for judicial review either with the U.S.
Court of Appeals for the Federal Circuit or any court of appeals of competent
jurisdiction.4 The court of appeals must receive your petition for review within
60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Orozco_Dan_J_SF-844E-19-0594-I-1__Final_Order.pdf | 2024-07-02 | DAN J. OROZCO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-19-0594-I-1, July 2, 2024 | SF-844E-19-0594-I-1 | NP |
1,076 | https://www.mspb.gov/decisions/nonprecedential/Harris_PaulSF-844E-23-0242-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL HARRIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-23-0242-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul Harris , Kelseyville, California, pro se.
James Mercier , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
dismissing his application for disability retirement as untimely filed and
determining that the appellant was not entitled to a waiver of the 1-year time limit
for filing the application. On petition for review, the appellant reasserts his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
claims below, arguing that the administrative judge erred in affirming OPM’s
final decision. Petition for Review File, Tab 1 at 5-7. This argument constitutes
mere disagreement with the administrative judge’s findings, which we find no
reason to disturb. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997)
(finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510.6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Harris_PaulSF-844E-23-0242-I-1__Final_Order.pdf | 2024-07-02 | PAUL HARRIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-23-0242-I-1, July 2, 2024 | SF-844E-23-0242-I-1 | NP |
1,077 | https://www.mspb.gov/decisions/nonprecedential/Suggs_JohnDC-3443-20-0561-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN SUGGS,
Appellant,
v.
GOVERNMENT PUBLISHING
OFFICE,
Agency.DOCKET NUMBER
DC-3443-20-0561-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Suggs , Laurel, Maryland, pro se.
Kerry Miller , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On petition for review, the appellant
again argues that the Board has jurisdiction over his claim that the agency
improperly denied him severance pay and reported the unpaid severance as an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
overpayment, resulting in the garnishment of his Social Security disability
benefits. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule or regulation . Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985. The appellant has the burden of proving
the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R
§ 1201.56(b)(2)(i)(a). An appellant is entitled to a jurisdictional hearing if he
makes a nonfrivolous allegation that the Board has jurisdiction over his appeal.
Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). A nonfrivolous
allegation is an assertion that, if proven, could establish the matter at issue.
5 C.F.R. § 1201.4(s).
Here, the appellant has failed to make a nonfrivolous allegation of
jurisdiction. Contrary to the appellant’s assertions, failure to pay severance is not
an appealable action under 5 U.S.C. § 7512. Ward v. U.S. Consumer Product
Safety Commission, 8 M.S.P.R. 603, 604 (1981). Nor has the appellant identified
any law, rule, or regulation that would grant the Board jurisdiction over the2
garnishment of Social Security benefits. It is true that garnishment of wages
constitutes a “personnel action” under 5 U.S.C. § 2302(a)(2)(A), and may be
reviewable in the context of an individual right of action appeal under the
Whistleblower Protection Act. See Roach v. Department of the Army,
82 M.S.P.R. 464, ¶¶ 13-14 (1999). However, the appellant’s reliance on Roach is
misplaced, as he has not alleged that his benefits were garnished in retaliation for
whistleblowing activity. As to the appellant’s argument that the agency failed to
notify him of his alleged appeal rights, the Board lacks jurisdiction to consider
claims of harmful procedural error or denial of due process in the absence of an
otherwise appealable action. Penna v. U.S. Postal Service, 118 M.S.P.R. 355,
¶13 (2012); Burnett v. U.S. Postal Service, 104 M.S.P.R. 308, ¶ 15 (2006).
Because the appellant failed to make nonfrivolous allegations of
jurisdiction, the administrative judge correctly dismissed the appeal without a
hearing. See Manning v. Merit Systems Protection Board, 742 F.2d 1424,
1427-28 (Fed. Cir. 1984).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Suggs_JohnDC-3443-20-0561-I-1__Final_Order.pdf | 2024-07-02 | JOHN SUGGS v. GOVERNMENT PUBLISHING OFFICE, MSPB Docket No. DC-3443-20-0561-I-1, July 2, 2024 | DC-3443-20-0561-I-1 | NP |
1,078 | https://www.mspb.gov/decisions/nonprecedential/Brown_CandiceDC-3443-20-0567-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CANDICE BROWN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-3443-20-0567-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Candice Brown , Largo, Maryland, pro se.
Darryl Joe , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction without holding a hearing.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant argues that the agency wrongfully
denied her leave requests, charged her with being absent without leave (AWOL),
required her to work without reasonable accommodations, and administered such
disciplinary actions as a reprimand and verbal counseling.2 Petition for Review
(PFR) File, Tab 1 at 5. She appears to allege for the first time on review that, in
denying her leave requests and placing her in an AWOL status, the agency
subjected her to a constructive suspension. Id. at 4.
The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
2 The appellant also appears to have challenged the alleged reprimand below. Initial
Appeal File (IAF), Tab 1 at 5. Specifically, she argued that, in denying her leave
requests, the agency committed harmful procedural error and caused her to receive a
letter of reprimand. Id. The appellant’s assertions that she was subjected to a
reprimand and verbal counseling provide no basis for disturbing the administrative
judge’s finding that the Board lacks jurisdiction over the appellant’s assertions. IAF,
Tab 7, Initial Decision at 3-4; see 5 C.F.R. § 1201.3 (identifying the subject matters
over which the Board has jurisdiction). Moreover, to the extent the appellant is alleging
that the agency failed to provide her with a reasonable accommodation and committed
harmful procedural error, absent jurisdiction over the appeal, the Board lacks
jurisdiction to consider any such allegations. See Penna v. U.S. Postal Service ,
118 M.S.P.R. 355, ¶ 13 (2012). 2
evidence not previously available despite the party’s due diligence. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). However, the issue of the
Board’s jurisdiction is always before the Board and may be raised by either party
or sua sponte by the Board at any time during a Board proceeding. Simnitt v.
Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 5 (2010). Accordingly,
because it is jurisdictional in nature, we will consider the appellant’s allegation
that the agency constructively suspended her.
To be appealable to the Board, a suspension—constructive or otherwise—
must be for more than 14 days. See 5 U.S.C. § 7512; Lefavor v. Department of
the Navy, 115 M.S.P.R. 120, ¶ 5 (2010); Giannetto v. Department of
Transportation, 109 M.S.P.R. 522, ¶ 5 (2008) (finding that, to be appealable, a
constructive suspension must have exceeded 14 days). On review, the appellant
argues that her case “should be treated as a suspension of 14 days or more”
because “[t]hat is the duration of time [she is] alleging the various periods of
leave and improper AWOL were involuntary.” PFR File, Tab 1 at 4. However,
she does not specify the dates and time period during which she was purportedly
denied leave and placed on AWOL. The appellant’s vague and unsupported
allegation does not constitute a nonfrivolous allegation that the Board has
jurisdiction over her appeal as a suspension, constructive or otherwise.3 Initial
Appeal File (IAF), Tab 7, Initial Decision (ID) at 3-4; see Liu v. Department of
Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007) (stating that mere pro forma
allegations are insufficient to satisfy this nonfrivolous standard); 5 C.F.R.
§ 1201.4(s)(1) (providing that an allegation generally will be considered
nonfrivolous when, among other things, it is more than conclusory).
3 Even taking the pro forma assertion as true, the appellant would still not necessarily
satisfy the Board’s jurisdiction if her suspension were only for 14 days, rather than for
more than 14 days. See 5 U.S.C. § 7512; Alves v. U.S. Postal Service , 95 M.S.P.R. 587,
¶ 8 (2004) (upholding the administrative judge’s finding that the Board lacked
jurisdiction over any enforced leave in the appellant’s appeals because she did not
allege that the “suspension” exceeded 14 days).3
On review, the appellant also indicates that she did not respond to the
administrative judge’s acknowledgment order due to stress and medical issues
and because emails from the Board were routed to her spam folder. PFR File,
Tab 1 at 4. She requests that the Board deny the agency’s motion to stay
discovery, which the administrative judge found moot in light of her
jurisdictional determination. Id. at 5-6; IAF, Tab 5; ID at 4 n.1.
As an e-filer, the appellant was required by regulation to ensure that emails
from @mspb.gov were not blocked by filters and to monitor her case at e-Appeal
to ensure she received all case-related documents. See 5 C.F.R.
§ 1201.14(j)(2)-(3) (2020). Thus, her argument that the Board’s emails were
routed to her spam folder does not provide a basis for review. To the extent the
appellant is alleging that she was improperly denied discovery by the
administrative judge, the record reflects that the administrative judge’s
acknowledgment order clearly apprised the parties of the availability of
discovery, the Board’s guidelines for engaging in discovery, and where to find the
applicable regulations. IAF, Tab 2 at 4. The Board has held that, when an
appellant has received specific notice of the Board’s discovery procedures, but
fails to comply with those procedures and, if necessary, to file a motion to
compel, she has failed to exercise due diligence. See Buscher v. U.S. Postal
Service, 69 M.S.P.R. 204, 210 (1995); Head v. Office of Personnel Management ,
53 M.S.P.R. 421, 422 (1992) (explaining that, absent a motion to compel, the
appellant failed to exercise due diligence in pursuing discovery). Therefore, we
find that the appellant has shown no error in this regard.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Brown_CandiceDC-3443-20-0567-I-1__Final_Order.pdf | 2024-07-02 | CANDICE BROWN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-3443-20-0567-I-1, July 2, 2024 | DC-3443-20-0567-I-1 | NP |
1,079 | https://www.mspb.gov/decisions/nonprecedential/Warren_Dashonta_D_CH-0714-19-0243-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DASHONTA D. WARREN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0714-19-0243-I-1
DATE: July 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Bettie Belcher , Southfield, Michigan, for the appellant.
Fallon Booth , Esquire, Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his removal pursuant to 38 U.S.C. § 714 based on one charge of
unauthorized absence/absent without leave. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2Effective March 7, 2019, the agency removed the appellant from his
position as a GS-6 Claims Assistant under the authority of 38 U.S.C. § 714.
Initial Appeal File (IAF), Tab 7 at 16-17, 19-22, 50-52.2 The agency removed the
appellant based on one charge of unauthorized absence/absent without leave
(AWOL). Id. The appellant appealed the agency’s action to the Board.
IAF, Tab 1. Although he initially requested a hearing, id. at 1, he subsequently
withdrew his request, IAF, Tab 8 at 2. The appellant also filed a whistleblower
reprisal complaint with the Office of Special Counsel (OSC) on the same day he
filed his Board appeal. IAF, Tab 12 at 12-13, Tab 13 at 12-13.
¶3The administrative judge informed the appellant of his burdens of proof
regarding his affirmative defenses of harmful procedural error and retaliation for
whistleblowing. IAF, Tab 1 at 2, Tab 8 at 2, Tab 10 at 2, Tabs 12-13, Tab 14
at 2. She also explained that the record suggested that the appellant had filed his
complaint with OSC before he filed with the Board and, therefore, the Board may
lack jurisdiction over the matter. IAF, Tab 19 at 1-2. She ordered both parties to
address this jurisdictional issue prior to the close of the record. Id. at 2.
Thereafter, the appellant filed a pleading asserting that he had filed with OSC
before he filed with the Board. IAF, Tab 21 at 5. In its prehearing submission,
the agency also averred that the Board lacks jurisdiction over the matter, arguing,
among other things, that the appellant had acknowledged that he filed with OSC
before he filed with the Board. IAF, Tab 22 at 6-8.
2 Although both the notice of proposed removal and the removal decision cited
38 U.S.C. § 714 as the legal authority for the agency’s action, the corresponding
Standard Form 50 cited “5 USC 75 Post Appointment.” IAF, Tab 7 at 16, 19, 50. The
appellant does not dispute that the agency took this action pursuant to 38 U.S.C. § 714.
Petition for Review File, Tab 4 at 5-6.2
¶4Based on the written record, the administrative judge issued an initial
decision finding that the appellant filed his Board appeal before he filed with
OSC and, therefore, the Board had jurisdiction over the matter. IAF, Tab 23,
Initial Decision (ID) at 2-4. The administrative judge also concluded that the
agency proved its charge of AWOL by substantial evidence. ID at 7. Finding
that the Board lacks the authority to mitigate the agency’s chosen penalty
pursuant to 5 U.S.C. § 714(d)(2)(B), the administrative judge considered some,
but not all, of the penalty factors enumerated in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), and found that the penalty of
removal was reasonable. ID at 16-17. The administrative judge further found
that the appellant failed to prove either of his proffered affirmative defenses by
preponderant evidence. ID at 7-15. She therefore affirmed his removal.
ID at 17.
¶5The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 3-4. In his petition for review, the appellant alleges only that he filed his
complaint with OSC before he filed his Board appeal; thus, he contends that the
Board lacks jurisdiction over the matter. PFR File, Tab 1 at 3-6. In his reply, the
appellant resubmits a pleading that he submitted before the administrative judge,
which contains arguments on jurisdiction and other issues.3 PFR File, Tab 4
at 2-6; IAF, Tab 21 at 1-5.
3 A reply is limited to the factual and legal issues raised by the agency in response to
the petition for review. Accordingly, we have considered the appellant’s reply insofar
as it pertains to jurisdiction, which is the only issue argued by the appellant in his
petition for review. PFR File, Tab 1; see 5 C.F.R. § 1201.114(a)(4) (explaining that a
reply is limited to the factual and legal issues raised in the response); see also Boston v.
Department of the Army , 122 M.S.P.R. 577, ¶ 5 n.3 (2015).3
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the Board has jurisdiction over this
appeal.
¶6An employee who claims to have suffered whistleblower reprisal regarding
an adverse action appealable to the Board may elect to pursue a remedy through
one, and only one, of the following remedial processes: (1) an appeal to the
Board under 5 U.S.C. § 7701; (2) a grievance filed pursuant to the provisions of a
negotiated grievance procedure; or (3) the procedures for seeking corrective
action under 5 U.S.C. §§ 1211-1222, i.e., an OSC complaint, potentially to be
followed by an individual right of action appeal. See 5 U.S.C. § 7121(g);
Requena v. Department of Homeland Security , 2022 MSPB 39, ¶ 7. Whichever
remedy is sought first by an aggrieved employee is deemed to be an election of
that procedure and precludes pursuing the matter in either of the other two
forums. Requena, 2022 MSPB 39, ¶ 8.
¶7Here, we discern no basis to disturb the administrative judge’s reasoned
conclusion that the appellant filed his appeal with the Board before he filed his
complaint with OSC. ID at 2-4. The record substantiates that the appellant filed
with both the Board and OSC on March 8, 2019. IAF, Tab 1, Tab 12 at 5, 12-13,
Tab 13 at 5, 12-13. As noted by the administrative judge, on his initial appeal
form with the Board, the appellant did not state that he had filed a complaint with
OSC. ID at 2; IAF, Tab 1 at 3. In his OSC complaint, however, the appellant
specifically acknowledged that he had filed a Board appeal. IAF, Tab 12 at 5,
Tab 13 at 5. Thus, we agree that the appellant filed his Board appeal on March 8,
2019, before he filed his complaint with OSC, i.e., that the appellant sought
remedy with the Board first. ID at 2-4; see Requena, 2022 MSPB 39, ¶ 8. The
appellant’s mere disagreement with this finding does not provide a basis to
disturb the initial decision. PFR File, Tab 1 at 3-6, Tab 4 at 6; see Broughton v.4
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987).4 We
also find no reason to disturb the administrative judge’s finding that the
appellant’s election was knowing and informed. IAF, Tab 7 at 19-20 (informing
the appellant that “[a]n appeal, complaint, or review concerning this action may
not be filed in more than one administrative body” and detailing his options to
challenge his removal); ID at 3-4; see Kaszowski v. Department of the Air Force ,
2023 MSPB 15, ¶ 5.
¶8Although not raised on review, we acknowledge that the initial decision
contains a typographical error. After stating three times that the appellant filed
with OSC on March 8, 2019, ID at 2-4, the administrative judge subsequently
misstated that he filed with OSC on March 7, 2019, ID at 4. As explained above,
we find that he filed with OSC on March 8, 2019, after he filed with the Board.
This appeal must be remanded for further adjudication on the merits of the
appellant’s removal.
¶9After the initial decision in this appeal was issued, the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) decided Rodriguez v.
Department of Veterans Affairs , 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021),
wherein it found that the Department of Veterans Affairs (VA) erred when it
applied the substantial evidence burden of proof to its internal review of a
disciplinary action under 38 U.S.C. § 714. In this case, the agency noted in its
removal decision that it had applied the substantial evidence burden of proof.
IAF, Tab 7 at 19. In Semenov v. Department of Veterans Affairs , 2023 MSPB 16,
¶ 23, the Board held that, because the Board adjudicates an action taken under
4 To the extent the appellant argues that 38 U.S.C. § 714(e) precludes his removal, we
find his contention unavailing. PFR File, Tab 1 at 6, Tab 4 at 5-6. Section 714(e)
provides, in relevant part, “[i]n the case of a covered individual seeking corrective
action . . . from [OSC] based on an alleged prohibited personnel practice described in
section 2302(b) of title 5, the Secretary may not remove, demote, or suspend such
covered individual under subsection (a) without the approval of [OSC] under section
1214(f) of title 5.” Here, however, the appellant did not elect to seek corrective action
with OSC; rather, he elected to file an appeal with the Board under 5 U.S.C. § 7701.
See 38 U.S.C. § 714(e); see also 5 U.S.C. § 7121(g). 5
38 U.S.C. § 714 under 5 U.S.C. § 7701(b)(1), actions taken under § 714 are
subject to the harmful error test from 5 U.S.C. § 7701(c)(2). Accordingly, we
must remand this appeal to determine whether the agency’s apparent error in
applying the incorrect standard of proof was likely to have caused the agency to
reach a different conclusion from the one it would have reached in the absence or
cure of the error. Semenov, 2023 MSPB 16, ¶ 23 (citing 5 C.F.R. § 1201.4(r)).
We find no basis to disturb the administrative judge’s finding that the agency
proved its charge, before the Board, by substantial evidence.5 ID at 7; see
38 U.S.C. § 714(d)(2)(A) (stating that an administrative judge must sustain the
agency’s decision to remove an employee “if the decision is supported by
substantial evidence”).
¶10Remand is also required for another reason. On the same day the Federal
Circuit decided Rodriguez, it also decided Connor v. Department of Veterans
Affairs, 8 F.4th 1319, 1326-27 (Fed. Cir. 2021), wherein it held that the VA and
the Board must apply the Douglas factors to the selection and review of penalties
in disciplinary actions taken under 38 U.S.C. § 714. There is no evidence to
support a finding that the agency completed a formal Douglas factors analysis or
considered the relevant Douglas factors in this case. IAF, Tab 7 at 19-22.
Although the administrative judge considered some of the relevant Douglas
factors, ID at 16, the Federal Circuit in Connor made clear that the agency has an
independent obligation to apply the Douglas factors. Connor, 8 F.4th at 1326;
see also Bryant v. Department of Veterans Affairs , 26 F.4th 1344, 1347 (Fed. Cir.
2022).
5 In the initial decision, the administrative judge found that 38 U.S.C. § 714 eliminated
the nexus requirement and, therefore, she did not make a finding as to whether the
agency proved nexus. ID at 6. Even if the agency was required to prove nexus, we find
that it would be met based on the nature of the charges against the appellant, i.e.,
AWOL. See, e.g., Adams v. Department of Labor , 112 M.S.P.R. 288, ¶ 8 (2009)
(stating that a sustained charge of AWOL is inherently connected to the efficiency of
the service).6
ORDER
¶11For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with Rodriguez, 8 F.4th 1290, Connor,
8 F.4th 1319, and this Remand Order. On remand, the administrative judge shall
set a deadline for the agency to conduct a penalty redetermination in accordance
with Connor, 8 F.4th 1319, reissue an agency decision, and notify the
administrative judge of that decision.
¶12After the agency provides the administrative judge with the penalty
redetermination, the administrative judge shall then address whether the agency’s
error in applying the substantial evidence standard of proof to its original action
was harmful, see 5 U.S.C. § 7701(a)(1), (b)(1); Semenov, 2023 MSPB 16, ¶ 24,
and whether its new penalty is supported by substantial evidence, Connor, 8 F.4th
at 1325-26. In so doing, she shall provide the parties with an opportunity to
present evidence and argument addressing these issues.6
¶13The administrative judge shall then issue a new initial decision including
her findings on whether the agency committed harmful error in applying the
substantial evidence standard of proof to its action and, if not, whether the new
penalty is supported by substantial evidence. See 5 U.S.C. § 7701(a)(1), (b)(1);
Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1376-77 (Fed. Cir.
2020); Semenov, 2023 MSPB 16, ¶ 24. Regardless of whether the appellant
proves harmful error in the agency’s application of the substantial evidence
standard of proof in its decision, if any argument or evidence on remand affects
the administrative judge’s analysis on the appellant’s affirmative defenses, she
should address such argument or evidence in the remand initial decision. See
Semenov, 2023 MSPB 16, ¶ 25. When issuing a new initial decision on these
matters, the administrative judge may incorporate the findings and conclusions of
6 The administrative judge shall hold a hearing limited to the issues on remand if one is
requested by the appellant.7
the prior initial decision, consistent with this Remand Order, into the new initial
decision.7
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7 Insofar as the appellant has not made any specific challenges to the administrative
judge’s findings that he failed to prove his affirmative defenses of harmful procedural
error and whistleblower reprisal in his petition for review, we find no reason to disturb
them. ID at 7-15; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997)
(holding that the Board will not disturb an administrative judge’s findings when she
considered the evidence as a whole, drew appropriate references, and made reasoned
conclusions on issues of credibility); Broughton, 33 M.S.P.R. at 359 (same). We note
that the initial decision contains a brief misstatement of law. ID at 14. In setting forth
the legal standard applicable to the appellant’s claim of retaliation for whistleblowing,
the administrative judge misstated that gross mismanagement requires an element of
blatancy. Id.; see Swanson v. General Services Administration , 110 M.S.P.R. 278, ¶ 11
(2008) (explaining that gross mismanagement does not require an element of blatancy).
Because the appellant has made no cognizable claim of gross mismanagement, we find
that this error is immaterial to the outcome.8 | Warren_Dashonta_D_CH-0714-19-0243-I-1__Remand_Order.pdf | 2024-07-02 | DASHONTA D. WARREN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-19-0243-I-1, July 2, 2024 | CH-0714-19-0243-I-1 | NP |
1,080 | https://www.mspb.gov/decisions/nonprecedential/Van_Thanh_T_DA-1221-18-0264-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THANH T. VAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-1221-18-0264-W-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Evans , Esquire, San Antonio, Texas, for the appellant.
Patrick A. Keen , Shreveport, Louisiana, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied corrective action in her individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis that the agency established by
clear and convincing evidence that it would have taken the same personnel
actions absent the appellant’s protected activities, we AFFIRM the initial
decision.
BACKGROUND
¶2In November 2009, the appellant was appointed as a staff Physician in the
Imaging Service of the agency’s Audie L. Murphy Memorial Veterans’ Hospital
(Audie Murphy VA) in San Antonio, Texas.2 Initial Appeal File (IAF), Tab 11
at 18; Hearing Compact Disc, October 17, 2018 (HCD 2), Track 2 at 1:15
(testimony of the appellant). The hospital’s Imaging Service is divided into four
sections – Diagnostic Radiology, Interventional Radiology, Nuclear Medicine,
and Radiation Oncology. Id. at 120. Each section is headed by a Section Chief,
and the Imaging Service as a whole is headed by a Service Chief. HCD 2,
Track 1 at 1:17:55 (testimony of Dr. L).
2 The Imaging Service used to be called the “Radiology Service.” Hearing Compact
Disc, October 17, 2018, Track 1 at 2:48:50 (testimony of Dr. L). These terms are used
interchangeably throughout the record.2
¶3In the fall of 2014, the agency appointed Dr. A as the new Chief of the
Imaging Service. IAF, Tab 1 at 184. Shortly thereafter, Dr. A personally
selected a physician to work in the Imaging Service on a contract basis, and in
January 2015, the appellant raised concerns about the competency of this
physician based on multiple errors that he had made reading and interpreting
images. Id. at 184-85; Hearing Compact Disc, October 16, 2018 (HCD 1),
Track 1 at 9:10 (testimony of the Radiology Administrator), Track 4 at 6:00
(testimony of Dr. D). These concerns precipitated an inquiry and a formal peer
review that resulted in a delay in the subject physician securing a civil service
appointment, although he was ultimately returned to the Imaging Service with
limited privileges. IAF, Tab 1 at 185; HCD 2, Track 1 at 2:35:30 (testimony of
Dr. L).
¶4Shortly after Dr. A became aware of the appellant’s disclosures, she and
some of the upper management at the Audie Murphy VA began subjecting her to
a number of personnel actions that the appellant believed to be retaliatory. IAF,
Tab 1 at 185-88. The appellant’s working conditions eventually led her to resign
her position effective June 30, 2015, and pursue a mammography fellowship at
the neighboring university hospital. IAF, Tab 11 at 16, 18; HCD 2, Track 2
at 17:10 (testimony of the appellant). Around the same time, an unrelated
investigation led to Dr. A’s reassignment and removal. HCD 2, Track 1
at 2:59:30 (testimony of Dr. L). Dr. L, who was Deputy Chief of Medical Staff at
the time, stepped in to fill the vacant Service Chief position. HCD 2, Track 1
at 2:47:50 (testimony of Dr. L). In light of this personnel shift, which had
removed Dr. A from her chain of command, the appellant immediately regretted
her decision to resign, but she felt that she had to go through with it because she
had already made a commitment to the university. IAF, Tab 11 at 16; HCD 2,
Track 2 at 19:10 (testimony of the appellant).
¶5Prior to her resignation, on April 28, 2015, the appellant filed a
whistleblower complaint with the Office of Special Counsel (OSC). Van v.3
Department of Veterans Affairs , MSPB Docket No. DA-1221-16-0244-W-1,
Appeal File (0244 AF), Tab 1 at 10, Tab 3. The complaint culminated in a
February 24, 2016 Board appeal, which was dismissed as settled on September 6,
2016. 0244 AF, Tabs 1, 18, 20.
¶6Meanwhile, the witnesses broadly agreed that, when Dr. L took over for
Dr. A in the summer of 2015, the Imaging Service was in disarray: Morale was
low, several physicians had secured legal counsel for various reasons, a
significant backlog of work had accumulated, and the service was severely
understaffed, particularly at the leadership level. IAF, Tab 20 at 76-77; HCD 1,
Track 2 at 3:45 (testimony of Human Resources Specialist); HCD 2, Track 1
at 44:00, 2:14:30 (testimony of Dr. L). In the wake of the appellant’s departure,
Dr. L began the process of rebuilding the Imaging Service, issuing several
vacancy announcements, including the two at issue in this appeal. IAF, Tab 23
at 6; HCD 2, Track 1 at 44:00 (testimony of Dr. L.).
¶7The first vacancy at issue was for Section Chief of Diagnostic Radiology.
The agency announced the vacancy on September 9, 2016, open to current
Imaging Service employees only. IAF, Tab 1 at 76. The appellant applied for the
position, but because she was no longer a Federal employee, her name was not
referred to Dr. L, the selecting official. IAF, Tab 11 at 94, 99-100; HCD 1,
Track 2 at 7:55 (testimony of Human Resources Specialist). Dr. L selected
Dr. W, who had begun as a staff physician in January 2016, and was the only
internal candidate to apply. IAF, Tab 11 at 94, 100, 117; HCD 1, Track 2
at 36:30 (testimony of Human Resources Specialist), Track 3 at 1:18:45
(testimony of Dr. W); HCD 2, Track 1 at 2:10:50 (testimony of Dr. L).
¶8The second vacancy was for Service Chief, announced on April 25, 2017,
through the open competitive process. IAF, Tab 1 at 92. The appellant applied
for this position as well, but after scoring her application, Dr. L determined that
she did not meet the cutoff for an interview, and so she was not selected for that
position either. IAF, Tab 32 at 25; HCD 1, Track 3 at 26:00 (testimony of4
Supervisory Staff Specialist); HCD 2, Track 1 at 1:53:30 (testimony of Dr. L).
The agency extended offers to multiple applicants who ultimately declined,
before it settled on the same Dr. W, whom it had promoted to Section Chief just
9 months before. HCD 1, Track 3 at 22:00 (testimony of Supervisory Staff
Specialist), 1:14:20 (testimony of Dr. W); HCD 2, Track 1 at 2:51:30, 2:21:30,
3:14:40 (testimony of Dr. L).
¶9The appellant filed another whistleblower complaint with OSC, claiming
that her nonselections were the product of whistleblower retaliation. IAF, Tab 1
at 164-77. OSC closed its file without taking corrective action, and the appellant
filed the instant IRA appeal. Id. at 5, 203-04.
¶10After a hearing, the administrative judge issued an initial decision denying
the appellant’s request for corrective action on the merits. IAF, Tab 47, Initial
Decision (ID). She found that the appellant engaged in protected activity that
was a contributing factor in the nonselections, but that the agency proved by clear
and convincing evidence that it would have made the same hiring decisions even
absent the appellant’s protected activity. ID at 7-18.
¶11The appellant has filed a petition for review, disputing the administrative
judge’s analysis of the agency’s affirmative defense. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition for review, and the
appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4.
ANALYSIS
¶12In the merits phase of an IRA appeal, the appellant has the burden of
proving by preponderant evidence that she engaged in protected activity described
under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and that this activity
was a contributing factor in a personnel action as described under 5 U.S.C.
§ 2302(a)(2)(A). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). If the appellant meets her burden, the Board will order corrective action
unless the agency proves by clear and convincing evidence that it would have5
taken the same personnel action in the absence of the protected activity. 5 U.S.C.
§ 1221(e); Salerno, 123 M.S.P.R. 230, ¶ 5. In determining whether an agency has
met its burden, the Board will consider all of the relevant factors, including the
following: (1) The strength of the agency’s evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d
1318, 1323 (Fed. Cir. 1999); Parikh v. Department of Veterans Affairs ,
116 M.S.P.R. 197, ¶ 36 (2011).
¶13In this case, the administrative judge found that the appellant proved her
case in chief. ID at 7-9. The appellant alleged retaliation for multiple protected
disclosures and activities, including her disclosures regarding the competency of
her physician coworker, a complaint to the agency’s Office of Inspector General,
her first OSC complaint, and her prior Board appeal. ID at 5. The administrative
judge found that all of these matters were protected under the Whistleblower
Protection Act, as amended. ID at 7. However, she also found that the appellant
only proved contributing factor with respect to her disclosures concerning
physician competency, and that the only relevant official who knew about these
disclosures was Dr. L. ID at 8-9. Neither party disputes these findings, and they
appear to be supported by the record.
¶14In assessing the agency’s affirmative defense, the administrative judge
applied the Carr factors, finding that Dr. L had some motive to retaliate, although
such motive was not particularly strong, the agency presented strong evidence in
support of its hiring actions, and the treatment of similarly situated
non-whistleblowers was not a significant factor. ID at 9-18. Weighing these
factors together, the administrative judge found that the agency proved by clear
and convincing evidence that it would not have selected the appellant for either of
the positions at issue, even absent her protected activity. ID at 18.6
¶15Regarding the strength of the agency’s evidence in support of its actions,
the administrative judge considered the agency’s explanation for each of its hiring
decisions separately. As stated above, the appellant was not selected for the
Section Chief position because she was not within the area of consideration for
the vacancy announcement, i.e., current employees within the Audie Murphy
VA’s Imaging Service. IAF, Tab 1 at 76. Thus, the issue is essentially whether
the agency intentionally used the internal hiring process to exclude the appellant
from applying. The administrative judge credited the agency’s explanation that
the Audie Murphy VA often uses internal hiring, and the internal hiring process
in this case allowed the agency to avoid creating a new full-time equivalency
(FTE) in the Imaging Service. ID at 14-15. She also credited Dr. L’s explanation
that the internal hiring process was meant to create advancement opportunities for
current employees of the troubled Imaging Service, and she noted that Dr. L made
the decision to hire internally shortly after the appellant resigned and well before
she notified him in June 2016 that she wished to be considered for available
positions. ID at 14; IAF, Tab 1 at 97-98.
¶16As stated above, the appellant was not selected for the Service Chief
position because her application score did not meet the cutoff for an interview.
The cutoff score was 20, but Dr. L scored the appellant’s application at 13. IAF,
Tab 32 at 25. The main point of contention here is whether the appellant should
have gotten credit for “Assignment as a Radiology Service or Section Chief,” in
light of work that she did in the Nuclear Medicine Section, wherein she “basically
ran” the section for 18 months and filled in at other times while the Section Chief
was occupied with other matters. See HCD 2, Track 2 at 6:30 (testimony of the
appellant). Had she been given credit for this work as “Assignment as a
Radiology . . . Section Chief,” her application score would have made the cutoff
for an interview. IAF, Tab 32 at 25. However, the administrative judge found
that the appellant’s application package did not reflect that she ever had any
leave-approving, disciplinary, hiring, or firing authority, or that she ever7
negotiated with the union or dealt with bargaining unit employees, and she
credited Dr. L’s testimony that acting as Service Chief periodically while
someone is out of the office is not the same as being officially designated as
Acting Service Chief, with official responsibility and authority to make
management decisions. ID at 17.
¶17Regarding Dr. L’s motive to retaliate, the administrative judge considered
the declaration of the former Radiology Administrator, who stated that Dr. L had
told him specifically that he did not want the appellant to come back because of
the turmoil that her whistleblowing activity had caused. ID at 10-11; IAF, Tab 1
at 58-62. The Radiology Administrator testified at the hearing consistent with his
declaration, and applying the factors set forth in Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458 (1987), including her observation of the witness’s
demeanor, the administrative judge found his testimony to be credible. ID
at 10-11; HCD 1, Track 1 at 12:30, 43:40 (testimony of the Radiology
Administrator). The administrative judge also considered Dr. L’s own deposition
testimony, in which he explained that bringing the appellant back would have
been difficult because it would have exacerbated interpersonal issues already
present in the troubled Imaging Service, which he was then trying to rebuild. ID
at 11-13. The administrative judge further considered that neither Dr. L nor
anyone in his direct supervisory chain at the time was the subject of the
whistleblowing, but as a high-ranking management official with general oversight
responsibilities, he may have been indirectly implicated. ID at 13-14.
Furthermore, as Deputy Chief of Staff, Dr. L worked closely with the Chief of
Staff, who did oversee the Imaging Service directly. Id. The administrative
judge also noted that Dr. L and the appellant were on good terms when she
departed, with no hint of personal animus either way. ID at 14. The
administrative judge concluded that Dr. L had some retaliatory motive, but that
this motive was not particularly strong. ID at 14.8
¶18Regarding the agency’s treatment of similarly situated non -whistleblowers,
the administrative judge found that there was no pertinent evidence concerning
this Carr factor, and that it did not figure significantly into the analysis. ID
at 18.
¶19The appellant disputes these findings on review, arguing that the
administrative judge got several facts wrong, failed to consider other facts, and
weighed the evidence incorrectly. PFR File, Tab 1 at 7. At the outset, we note
that the administrative judge’s failure to mention all of the evidence in this
extensive record does not mean that she did not consider it in reaching her
decision. See Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Nevertheless, the U.S. Court of Appeals for the Federal Circuit has held that
evidence only clearly and convincingly supports a conclusion when it does so in
the aggregate considering all the pertinent evidence in the record, and despite the
evidence that fairly detracts from that conclusion, and that it is error for the
Board to not evaluate all the pertinent evidence in determining whether an
element of a claim or defense has been adequately proven. Whitmore v.
Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012). Mindful of these
principles, we have closely reviewed the record in this appeal and carefully
considered each of the appellant’s contentions on review. Accordingly, we
supplement the initial decision as set forth below.
¶20Regarding the first Carr factor, the appellant argues that the benefits of
internal hiring all applied to her because, even though she was not a current
employee when the Section Chief vacancy was announced, she had only recently
departed. PFR File, Tab 1 at 13-14. This, however, is not unqualifiedly true;
because the appellant had separated from service, she would have had to go
through the pre-employment process just like any other external candidate, and,
depending on applicable expiration dates, she may have had to undergo
recredentialing, a new background check, a new physical, or other9
pre-employment requirements. HCD 1, Track 2 at 1:21:40 (testimony of the
Human Resources Specialist). The appellant also disputes the administrative
judge’s finding that the internal hiring process allowed the Section Chief
appointment to be FTE-neutral. PFR File, Tab 1 at 10; ID at 4, 14-15. She
argues that Dr. W’s staff Physician position was, in fact, backfilled after he was
promoted to Section Chief. PFR File, Tab 1 at 10; IAF, Tab 20 at 91-92. We
disagree. The Diagnostic Radiology Section Chief was FTE-neutral because it
was created by converting an existing staff Physician position into a Section
Chief position. IAF, Tab 32 at 23; HCD 1, Track 3 (testimony of Dr. W); HCD 2,
Track 1 at 38:25 (testimony of Dr. L). The fact that the agency subsequently
filled another of its vacant FTEs in that section is immaterial because the total
number of FTEs remained the same. In any event, we find that it is simply too
much to expect that the agency should have changed the entire focus of the hiring
process in order to reach a single potential candidate who had not contacted the
agency since her departure more than a year prior and who had never before
expressed any interest in taking a management position.3 HCD 2 at 1:14:15,
2:07:20, 3:11:10 (testimony of Dr. L). We find it highly unlikely that Dr. L
would have made the decision to recruit internally in order to exclude a candidate
whom he had little or no reason to believe would be applying. Along these lines,
the appellant argues that her June 12, 2015 email put Dr. L on notice that she was
interested in returning to the agency before he made his decision to recruit for the
Section Chief position internally. PFR File, Tab 1 at 7-8, 14; IAF, Tab 11 at 16.
Again, we disagree. In this email, the appellant expressed a desire to keep her
clinical privileges at the Audie Murphy VA and a willingness to help out on an ad
3 On June 14, 2016, the appellant wrote Dr. L a letter asking to be considered for any
radiology vacancies for which she might be qualified. PFR File, Tab 1 at 8; IAF, Tab 1
at 97-98. However, she wrote this letter after her nonselection for the Section Chief
position and, although she was not selected for the Service Chief position, her
application for it was considered. To the extent that the appellant is arguing that Dr. L
should have noncompetitively appointed her to a staff Physician or other unspecified
position, PFR File, Tab 1 at 8-9, this is beyond the scope of the instant appeal, which
involves only the Section and Service Chief positions.10
hoc basis.4 IAF, Tab 11 at 16. We do not read this email as indicating a desire to
return to Federal employment, much less employment as a Section Chief. For the
reasons explained in the initial decision, we agree with the administrative judge
that the agency presented compelling evidence in support of Dr. L’s decision to
recruit internally for Section Chief of Diagnostic Radiology, and we see little
reason to doubt the veracity of the agency’s explanation. ID at 14-15.
¶21Regarding the Service Chief position, the appellant argues that Dr. L should
have credited her as having been assigned to a radiology Section Chief position
because her application package outlined her extensive supervisory experience as
well as her experience acting as Nuclear Medicine Section Chief in Dr. D’s
absence. PFR File, Tab 1 at 11, 14-15; IAF, Tab 1 at 102-10, Tab 24 at 7. It is
undisputed that, had the appellant received such credit, her application score
would have entitled her to an interview, and the record shows that the appellant
had experience supervising staff and residents. IAF, Tab 32 at 25; HCD 2, Track
2 at 6:15 (testimony of the appellant). Although all physicians at the Audie
Murphy VA supervise staff and residents, the appellant’s experience in this
regard seems to have been more extensive than most. HCD 2, Track 1 at 1:30:16
(testimony of Dr. L); HCD 2, Track 2 at 6:15, 14:20 (testimony of the appellant).
This difference, however, appears to be largely a matter of degree; the appellant’s
supervisory experience did not entail disciplinary authority, hiring and firing,
leave approval, addressing grievances, or business planning, which was the type
of experience that Dr. L was looking for and that the appellant would have
received had she been officially detailed to Section Chief. HCD 2, Track 1
at 1:29:55 (testimony of Dr. L), Track 2 at 22:00 (testimony of the appellant); see
generally 5 U.S.C. § 7103(a)(10) (defining “supervisor” for purposes of Federal
labor-management and employee relations). For the reasons explained in the
4 Dr. L testified that it would not actually have been possible for the appellant to retain
her clinical privileges at the Audie Murphy VA after her resignation because her change
in employment status would have required recredentialing. HCD 2 at 1:11:10
(testimony of Dr. L).11
initial decision, we agree with the administrative judge that the agency presented
strong evidence to support its scoring of the appellant’s application for the
Service Chief position. ID at 15-17.
¶22Regarding the first Carr factor in general, the appellant argues that she was
a good employee during her tenure with the agency and that there was nothing
about her that should have prevented her from being rehired. PFR File, Tab 1
at 7-8. We agree. The record is clear concerning the appellant’s colleagues’ high
regard for her; not a single witness had anything negative to say about the
appellant, but to the contrary testified favorably about her and her supervisory
and clinical skills. HCD 1, Track 1 at 10:50 (testimony of Radiology
Administrator), Track 2 at 1:45 (testimony of Human Resources Specialist),
Track 3 at 51:30 (testimony of Dr. W), Track 4 at 2:00 (testimony of Dr. D),
52:05 (testimony of Dr. F); HCD 2, Track 1 at 3:39:50 (testimony of Dr. L).
However, we find that this is largely immaterial because the appellant’s
competence and good reputation did not put her within the area of consideration
for the Section Chief vacancy, and did not constitute the experience required for
an appointment to Service Chief.
¶23Regarding the second Carr factor, the appellant argues that the
administrative judge failed to assess accurately the strength of Dr. L’s bias or to
figure it into her overall analysis. PFR File, Tab 1 at 15, 17-18. First, she argues
that Dr. L admitted in his deposition that he was biased against her and for that
reason had recused himself from a previous selection process for a staff Physician
position. Id. at 6-7, 10, 12, 15-17. We disagree with the appellant’s
characterization of Dr. L’s deposition testimony. Dr. L testified that he had the
potential to be biased, and not that he was actually biased against the appellant.
IAF, Tab 20 at 91-92. He later clarified at the hearing that he was referring to the
appearance of bias, and for that reason, he followed the advice of a human
resources official to remove himself from the decision process. HCD 2, Track 1
at 1:48:55, 3:05:15 (testimony of Dr. L). 12
¶24In this same vein, the appellant argues that Dr. L testified that the
appellant’s return to the Imaging Service would cause turmoil and that this would
have created an additional problem that he would have to deal with in getting the
Service back into shape. PFR File, Tab 1 at 8, 15-16; IAF, Tab 20 at 77-78,
Tab 22 at 47-48; HCD 2, Track 1 at 3:24:10 (testimony of Dr. L). The appellant’s
characterization of Dr. L’s testimony in this regard is accurate.5 We find,
however, that Dr. L’s candid admission of his concerns regarding such potential
turmoil must be viewed in the context of his demonstrated knowledge that
management is responsible for setting such considerations aside and addressing
any resulting disharmony in a fair and evenhanded manner. HCD 2, Track 1
at 3:27:50 (testimony of Dr. L).
¶25Regarding the administrative judge’s finding that the appellant was on good
terms with Dr. L when she resigned, the appellant argues that this was only
because she was unaware that Dr. L was harboring retaliatory animus against her.
PFR File, Tab 1 at 18; ID at 14. The appellant’s point is well-taken. We find that
the absence of any overt hostility from Dr. L prior to the appellant’s resignation
is a relevant fact to consider, but it does little to show that Dr. L was not actually
harboring animus.
¶26The appellant also argues that the administrative judge failed to properly
account for the deposition and hearing testimony of the Radiology Administrator,
who stated that he was involved in meetings in which Dr. L expressed his
retaliatory animus towards the appellant. PFR File, Tab 1 at 16, 18; IAF Tab 1
at 58-62; HCD 1, Track 1 at 12:30, 17:10 (testimony of Radiology
Administrator). We agree with the appellant that this evidence weighs in favor of
finding a strong retaliatory motive, particularly in light of the administrative
judge’s favorable demeanor-based credibility determinations. ID at 10-11.
However, we cannot discount the fact that the administrative judge had the
5 We disagree with this characterization to the extent that the appellant intimates that
Dr. L admitted he was actually biased against her for that reason. PFR File, Tab 1
at 15-16.13
opportunity to observe Dr. L’s demeanor as well, and that the countervailing
evidence tempered her assessment of the strength of his retaliatory motive. ID
at 13-14. Having reviewed the initial decision and considered the pertinent
evidence of record, particularly Dr. L’s realistic assessment of the consequences
of the appellant’s whistleblowing and his clear understanding of his
responsibilities in that regard, we find that the appellant has not provided a
sufficiently sound basis for us to disturb the initial decision with respect to the
second Carr factor. See Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002) .
¶27Regarding the third Carr factor, the appellant argues that the agency bears
the burden of coming forward with evidence regarding similarly situated
non-whistleblowers, and that the agency bears the risk associated with having no
evidence on record for this factor. PFR File, Tab 1 at 19-20; see Miller v.
Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016). We agree with the
appellant on this point. However, given the idiosyncratic nature of hiring
decisions, it is doubtful that any comparison cases, even assuming they existed,
would be able to shed much light on the instant appeal.
¶28The appellant argues that the Radiology Administrator himself serves as a
comparison employee because Dr. L assigned him a very high performance rating
prior to his departure for another facility but began to question his competence
after he submitted a declaration in support of the appellant. PFR File, Tab 1
at 20; IAF, Tab 28; HCD 2, Track 1 at 2:20 (testimony of Dr. L). We find,
however, that Dr. L gave a reasonable explanation for this apparent discrepancy;
he testified that the problems with the Radiology Administrator’s work did not
come fully to light until after his departure, and in any event, he gave all of his
subordinates in the Imaging Department very high performance ratings for the
2015 performance year in light of the difficult situation that they all were facing.
HCD 2, Track 1 at 4:40, 2:43:50 (testimony of Dr. L). Therefore, after having
considered the appellant’s arguments on review, we agree with the administrative14
judge that the third Carr factor is not significant under the facts of the instant
appeal.
¶29Having found firm support for the administrative judge’s assessment of each
individual factor, we also agree with her conclusion that, weighing the evidence
as a whole, the agency has met its burden to prove by clear and convincing
evidence that it would have made the same hiring decisions notwithstanding the
appellant’s protected disclosures. ID at 18.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you16
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 17
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Van_Thanh_T_DA-1221-18-0264-W-1__Final_Order.pdf | 2024-07-02 | THANH T. VAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-1221-18-0264-W-1, July 2, 2024 | DA-1221-18-0264-W-1 | NP |
1,081 | https://www.mspb.gov/decisions/nonprecedential/Broadus_Donnek_E_PH-0752-20-0321-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNEK E. BROADUS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-20-0321-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donnek E. Broadus , Avondale, Pennsylvania, pro se.
Nelda Davis , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to vacate the administrative judge’s finding that the
appellant’s appointment excluded her from coverage under chapter 75 and clarify
that the appellant has not made a nonfrivolous allegation that she met the
definition of an “employee” with chapter 75 appeal rights, we AFFIRM the initial
decision.
BACKGROUND
Effective May 4, 2020, the agency appointed the appellant to the position
of Nursing Assistant in a time-limited appointment in the excepted service under
38 U.S.C. § 7405(a)(1). Initial Appeal File (IAF), Tab 6 at 7. By letter dated
May 27, 2020, the agency notified the appellant that it was terminating her
appointment “due to unacceptable in-processing, attendance, and failure to adhere
to dress code policy,” effective May 29, 2020. Id. at 8.
The appellant filed an appeal and requested a hearing. IAF, Tab 1 at 2.
She checked the boxes indicating that her Federal employment status was
“temporary” and that she was “serving a probationary, trial, or initial service
period at the time of the action” she was appealing. Id. at 1. The appellant
asserted that the agency was “wrong” because she had never received information
regarding the dress code or attendance policies and that she was “not treated fair.”2
Id. at 4. She filed supplemental pleadings asserting that she was wrongfully
terminated for false reasons and raising personal complaints regarding her brief
employment with the agency. IAF, Tab 5 at 3, Tab 7 at 3.
In the acknowledgment order, the administrative judge informed the
appellant that the Board may not have jurisdiction over her appeal and apprised
her of the regulatory right to appeal for probationers in the competitive service
and the requirements for meeting the definition of an “employee” for purposes of
5 U.S.C. chapter 75 appeal rights. IAF, Tab 2 at 2-5. The agency filed a motion
to dismiss the appeal for lack of jurisdiction, arguing that the appellant did not
meet the definition of an employee under section 7511 and that she had been
serving a temporary appointment without the possibility of conversion to the
competitive service at the time of her termination. IAF, Tab 6 at 4-6. The agency
also argued that the appellant had been employed for less than 1 month prior to
her termination and that she did not provide any evidence that she had 2 years of
current continuous service in the same or similar positions. Id. at 6.
Subsequently, the administrative judge issued an order to show cause,
noting that the Standard Form 50 (SF-50) submitted by the agency into the record
indicated that the appellant received an excepted service appointment, and
therefore the parties should ignore his prior jurisdiction order concerning the
competitive service. IAF, Tab 8 at 2. He advised the appellant that medical
professionals appointed under 38 U.S.C. § 7405(a)(1) lack chapter 75 appeal
rights since their appointments are without regard to civil service laws, rules, or
regulations. Id. at 2-3. The administrative judge also notified the appellant that
the record contained no evidence demonstrating that she met the definition of an
“employee” in the excepted service under 5 U.S.C. § 7511(a)(1)(C) and instructed
her to submit any relevant argument or evidence to the contrary. Id. at 2-3 n. 2.
In the two pleadings she submitted in response to the order to show cause, the
appellant largely repeated her general arguments concerning the merits of her3
termination and did not address the jurisdictional issue. IAF, Tab 9 at 3, Tab 10
at 3.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal because the appellant failed to make a
nonfrivolous allegation that the Board had jurisdiction over her appeal. IAF,
Tab 11, Initial Decision (ID) at 1, 4. He found that, although the SF-50 submitted
by the agency stated that it had appointed the appellant under 38 U.S.C. 7405(a)
(1)(A), the correct appointing authority for the appellant’s Nursing Assistant
position was section 7405(a)(1)(B). ID at 3. The administrative judge found that,
as an appointee to a temporary position under section 7405(a)(1), the appellant
lacked the right to appeal adverse actions to the Board under chapter 75. ID at 3-
4. Finally, he noted that none of the appellant’s submissions on appeal addressed
the issue of jurisdiction. Id.
The appellant has filed a petition for review, in which she repeats her
assertion that she was wrongfully terminated and does not challenge the
administrative judge’s jurisdictional findings. Petition for Review (PFR) File,
Tab 1 at 3, Tab 2 at 3. The agency has filed a response arguing that the appellant
has failed to provide a basis for overturning the initial decision. PFR File, Tab 4
at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant has the burden
of establishing that the Board has jurisdiction over her appeal. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). Generally, individuals appointed under 38 U.S.C.
§ 7405(a)(1) are excluded from “civil service or classification laws, rules, or
regulations.” However, the Board has jurisdiction over disciplinary actions
issued to individuals appointed under 38 U.S.C. § 7405(a)(1)(B) if they meet the4
definition of an employee under 5 U.S.C. § 7511. 38 U.S.C. § 7403(f)(3); see
Carrow v. Merit Systems Protection Board , 564 F.3d 1359, 1364 (Fed. Cir. 2009)
(stating there is a limited exception to that rule for health care professionals who
are appointed to positions listed in section 7401(3)).
The SF-50 submitted into the record by the agency stated that the appellant
had been appointed to a time-limited Nursing Assistant position under the
authority of 38 U.S.C. § 7405(a)(1)(A). IAF, Tab 6 at 7. However, the
administrative judge correctly determined that the position of “nurse assistant” is
listed in 38 U.S.C. § 7401(3), and therefore the proper appointing authority was
section 7405(a)(1)(B). ID at 3; see Scott v. Department of the Air Force ,
113 M.S.P.R. 434, ¶ 8 (2010) (stating that an SF-50 is not a legally operative
document controlling on its face an employee’s status and rights; instead, the
Board looks at the totality of the circumstances in determining the nature of an
appointment). Nonetheless, because the appellant was employed by the agency as
a Nursing Assistant, a position listed in section 7401(3) of title 38, the
administrative judge incorrectly dismissed the appeal on the basis that she was
appointed under section 7405(a)(1). ID at 3-4; see Carrow, 564 F.3d at 1364.
The administrative judge should have assessed whether the appellant had made
nonfrivolous allegations2 that she met the definition of an employee under chapter
75. See 38 U.S.C. § 7403(f)(3); 5 U.S.C. § 7511(b)(10).
A nonpreference-eligible individual in the excepted service is an
“employee” within the meaning of 5 U.S.C. § 7511 only if she: (1) is not serving
a probationary or trial period under an initial appointment pending conversion to
the competitive service; or (2) has completed 2 years of current continuous
service in the same or similar positions in an Executive agency under other than a
temporary appointment limited to 2 years or less. 5 U.S.C. § 7511(a)(1)(C)(i),
(ii); see Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210, ¶ 10
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).5
(2009) (applying this provision to an excepted service appointment made under
38 U.S.C. § 7401(3)). The appellant has not alleged on appeal or on review that
she had 2 years of current continuous service or was serving under an initial
appointment pending conversion to the competitive service. IAF, Tab 1 at 1-5,
Tab 5 at 3, Tab 7 at 3, Tab 9 at 3, Tab 10 at 3; PFR File, Tab 1 at 3, Tab 2 at 3.
The record evidence demonstrates that the appellant was appointed on May 4,
2020, and terminated less than 1 month later, effective May 29, 2020. IAF, Tab 6
at 7-8. In her initial appeal form, the appellant stated that she had zero months of
Government service and that she held a temporary appointment at the time of her
termination. IAF, Tab 1 at 1. Because the appellant failed to nonfrivolously
allege that she met the definition of an “employee” with Board appeal rights
under 5 U.S.C. chapter 75, she was not entitled to a jurisdictional hearing. See
Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994) (stating that an
appellant is entitled to a jurisdictional hearing if she presents nonfrivolous
allegations of Board jurisdiction).
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Broadus_Donnek_E_PH-0752-20-0321-I-1__Final_Order.pdf | 2024-07-02 | DONNEK E. BROADUS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-20-0321-I-1, July 2, 2024 | PH-0752-20-0321-I-1 | NP |
1,082 | https://www.mspb.gov/decisions/nonprecedential/Orozco_MarisaSF-1221-18-0299-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARISA OROZCO,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-18-0299-W-1
DATE: July 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Patrick Bradley , North Hills, California, for the appellant.
Jessica Choi , Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action under 5 U.S.C. § 1221. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge should have
found that her November 1, 2017 disclosure was protected. Petition for Review
File, Tab 1 at 10. She also contends that, in addition to her October 11, 2017
disclosure to the proposing official, the protected disclosures she made to other
individuals on September 17 and October 28, 2017, were also a contributing
factor in the proposed removal. Id. at 10-11. She further argues that, contrary to
the initial decision, the agency did not prove by clear and convincing evidence
that it would have proposed her removal in the absence of her protected
disclosures. Id. at 11-19.
For the reasons explained in the initial decision, we agree with the
administrative judge that the appellant’s November 1, 2017 disclosure did not
evince a reasonable belief that her supervisor engaged in an abuse of authority.
See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (same). We have also considered whether that disclosure might have
evinced a reasonable belief that the supervisor violated a law, rule, or regulation
by placing incorrect information in the workers’ compensation form. However,
we find that the record does not support such a finding. Nevertheless, we agree
with the appellant that she established by a preponderance of the evidence that
her September 17 and October 28, 2017 disclosures were a contributing factor in
her proposed removal.
The term “contributing factor” means any disclosure that affects an
agency’s decision to threaten, propose, take, or not take a personnel action2
regarding the individual making the disclosure. Scoggins v. Department of the
Army, 123 M.S.P.R. 592, ¶ 21 (2016). The most common way of proving the
contributing factor element is the “knowledge/timing test.” Id. Under that test,
an appellant can prove that her disclosure was a contributing factor in a personnel
action through evidence that the responsible agency official knew of the
whistleblowing disclosure and took the personnel action within a period of time
such that a reasonable person could conclude that a disclosure was a contributing
factor in a personnel action. Id.
An appellant may satisfy the knowledge prong of the knowledge/timing test
by proving that the official taking the action had constructive knowledge of the
protected disclosure, even if the official lacked actual knowledge. Nasuti v.
Department of State , 120 M.S.P.R. 588, ¶ 7 (2014). One way of establishing
constructive knowledge is to show that an individual with actual knowledge
influenced the official accused of taking the retaliatory action. Id. In an
individual right of action appeal, such as this one, the party before the Board is
the agency, not its individual officials, and lack of knowledge by a particular
official is not dispositive. Id.
While the record does not establish that the proposing official had actual
knowledge of the appellant’s September 17 and October 28, 2017 disclosures, it
does show that the recipients of these disclosures took actions that influenced the
proposing official’s decision. First, under the absence without leave (AWOL)
charge, the proposal notice lists six dates between October 11 and November 7,
2017, on which the appellant was charged AWOL. Initial Appeal File (IAF),
Tab 9 at 93. The record reflects that it was the recipient of the September 17,
2017 disclosure who marked the appellant as AWOL on at least five of these
dates. IAF, Tab 6 at 4-7. Under the lack of candor charge, the proposal notice
states that, on October 29, 2017, the appellant reported that she had shaved
patient C and entered this information into the patient’s records, and that her
supervisor—the recipient of the October 28, 2017 disclosures—then verified that3
the patient was not shaved and that the information entered into the patient’s
medical record was inaccurate. IAF, Tab 9 at 94. On October 30, 2017, the
recipient of the October 28, 2017 disclosure submitted a report of contact
documenting that incident. IAF, Tab 10 at 38. Additionally on November 9,
2017, the recipient of the September 17, 2017 disclosure completed a report of
contact describing the incident described in the second specification of the charge
of failure to follow instructions. IAF, Tab 9 at 94, 112. Finally, the charge of
inappropriate conduct was based on a November 13, 2017 email, which the
appellant sent to the recipient of the September 17, 2017 disclosure, and which
the recipient forwarded to the proposing official on the following day. Id. at 94,
110.
Accordingly, we conclude that the appellant established by preponderant
evidence that the proposing official had constructive knowledge of the
September 17 and October 28, 2017 disclosures, as well as actual knowledge of
the October 11, 2017 disclosure. Moreover, all three disclosures occurred within
2 months of the November 16, 2017 proposal notice. See Schnell v. Department
of the Army, 114 M.S.P.R. 83, ¶ 22 (2010) (holding that a personnel action taken
as late as 1 to 2 years after the appellant’s disclosures satisfies the timing
component of the knowledge/timing test). Accordingly, we conclude that the
knowledge/timing test is satisfied with all three protected disclosures, and that the
appellant has thereby shown that all three were contributing factors in her
proposed removal.
Having found that the September 17, October 11, and October 28, 2017
disclosures were contributing factors in her proposed removal, we turn to the
question of whether the agency has shown by clear and convincing evidence that
it would have proposed her removal in the absence of those disclosures. See
5 U.S.C. § 1221(e)(2). In determining whether an agency has met its burden, the
Board will consider the following factors: the strength of the agency’s evidence
in support of its action; the existence and strength of any motive to retaliate on4
the part of the agency officials who were involved in the decision; and any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). Our reviewing court has
further clarified that “[e]vidence only clearly and convincingly supports a
conclusion when it does so in the aggregate considering all the pertinent evidence
in the record, and despite the evidence that fairly detracts from that conclusion.”
Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012).
In addressing the second Carr factor, the administrative judge considered
only the strength of the proposing official’s motive to retaliate for the October 11,
2017 disclosure. IAF, Tab 38, Initial Decision at 12-18. However, in
determining whether an agency has proved by clear and convincing evidence that
it would have taken an alleged retaliatory action absent the appellant’s
whistleblowing, the Board will consider not only any retaliatory motive to
retaliate on the part of the agency official who ordered the action, but also any
motive to retaliate on the part of other agency officials who influenced the
decision. McCarthy v. International Boundary and Water Commission ,
116 M.S.P.R. 594, ¶ 62 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). Hence, to
properly assess the extent of any retaliatory motive in this appeal, it is necessary
to consider the existence and extent of any retaliatory motive on the part of the
recipients of the September 17 and October 28, 2017 disclosures, as well as the
proposing official. See Herman v. Department of Justice , 119 M.S.P.R. 642, ¶ 20
(2013); see also Aquino v. Department of Homeland Security , 121 M.S.P.R. 35,
¶ 29 (2014) (agreeing with the administrative judge that the evidence reflected a
motive on the part of the agency to retaliate, especially in light of the appellant’s
supervisor’s role in reporting the appellant’s alleged misconduct).
Generally, the administrative judge is in the best position to conduct the
required analysis, because she is the one who heard the live testimony and made
credibility determinations. Shibuya v. Department of Agriculture , 119 M.S.P.R.5
537, ¶ 37 (2013). In this case, the administrative judge who conducted the
hearing is no longer employed by the Board. In addition, neither the parties nor
the administrative judge elicited testimony from the recipients of the protected
disclosures—who were also the alleged wrongdoers in those disclosures—
concerning the existence and strength of their motive to retaliate against the
appellant. Under these circumstances, we find it appropriate to remand the case
for a new administrative judge to conduct further development of the record,
including a supplemental hearing if the appellant desires one, concerning the
second Carr factor. The new administrative judge should then conduct a new
analysis of the Carr factors, taking into account all three protected disclosures.
See id., ¶¶ 37-38; see also Herman , 119 M.S.P.R. 642, ¶¶ 20-21. The new
administrative judge may adopt the findings of the original administrative judge
as to the first and third Carr factors.2
2 The Board has held that, when there is conflicting testimony on a material issue, and a
new administrative judge will decide the case, the testimony should be heard again to
permit her to make credibility determinations based on witness demeanor. Lin v.
Department of the Air Force , 2023 MSPB 2, ¶ 24. A factual dispute is “material” if, in
light of the governing law, its resolution could affect the outcome. Id. Because the
existing record does not contain conflicting testimony material to the first and third
Carr factors, it is unnecessary for the new administrative judge to rehear the testimony
regarding those factors. 6
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. In the remand
initial decision, the administrative judge may adopt prior findings as appropriate,
consistent with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Orozco_MarisaSF-1221-18-0299-W-1__Remand_Order.pdf | 2024-07-02 | MARISA OROZCO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-18-0299-W-1, July 2, 2024 | SF-1221-18-0299-W-1 | NP |
1,083 | https://www.mspb.gov/decisions/nonprecedential/Baylor_Thomas_J_DC-1221-19-0493-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS J. BAYLOR,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-1221-19-0493-W-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas J. Baylor , Hampton, Virginia, pro se.
Amanda E. Shaw , Roanoke, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis regarding whether the appellant
nonfrivolously alleged that the single disclosure he exhausted with the Office of
Special Counsel (OSC) was a contributing factor in his termination, and to
VACATE the administrative judge’s alternative findings that the appellant failed
to nonfrivolously allege that he was perceived as a whistleblower and that such
perception was a contributing factor in his termination, we AFFIRM the initial
decision.
BACKGROUND
¶2The appellant was a WG-02 Housekeeping Aid with the agency. Initial
Appeal File (IAF), Tab 5 at 10. Effective December 15, 2018, the agency
terminated him during his probationary period. Id. at 10-13. The appellant filed
a complaint with OSC on January 8, 2019. IAF, Tab 1 at 12-25. In his OSC
complaint, the appellant alleged that he made a disclosure to the Executive
Assistant to the Associate Director (EAAD) on December 6, 2018, about his
first-line supervisor’s abuse of power and abusive conduct toward staff. Id. at 19.
He also indicated in his OSC complaint that he asked the Environmental
Management Services (EMS) Chief to move him to the day shift, but that this2
request was denied. Id. On April 25, 2019, OSC closed its investigation into the
appellant’s complaint. Id. at 31.
¶3This appeal followed. IAF, Tab 1. In her order on jurisdiction and proof
requirements, the administrative judge informed the appellant of how to establish
the Board’s jurisdiction over his IRA appeal, including how to establish
jurisdiction over his appeal based on a claim that the agency perceived him to be
a whistleblower. IAF, Tab 3. In response, the appellant alleged the following,
among other things: (1) his first-line supervisor’s mistreatment of female staff
rose to the level of sexual harassment; (2) in November 2018, when he requested
that the EMS Chief move him to the day shift, he also told him about his
supervisor’s abusive behavior, and the conversation therefore constituted a
protected disclosure; and (3) even if his disclosures to the EAAD and EMS Chief
were not protected, he was perceived as a whistleblower. IAF, Tab 8 at 6-7.
¶4Thereafter, the administrative judge issued an initial decision dismissing the
IRA appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision (ID). The
administrative judge found that the appellant exhausted his administrative
remedies regarding his disclosure to the EAAD, but that he failed to establish
exhaustion regarding both making a disclosure to the EMS Chief and being
perceived as a whistleblower. ID at 4-5. The administrative judge further found
that the appellant failed to nonfrivolously allege that his disclosure to the EAAD
was protected because the appellant’s allegations regarding his first-line
supervisor’s alleged abuse of power and abusive behavior were conclusory,
vague, and unsupported. ID at 5-6. The administrative judge also noted that
allegations of sex discrimination and sexual harassment are not protected
disclosures. ID at 6.
¶5The administrative judge alternatively found that, because the appellant
failed to nonfrivolously allege that the officials involved in his termination were
aware of his disclosure or otherwise perceived him to be a whistleblower, the
appellant failed to nonfrivolously allege that he was perceived as a whistleblower3
and that, if such perception existed, it was a contributing factor in his
termination. ID at 7. Moreover, the administrative judge found that the appellant
failed to nonfrivolously allege that his disclosure to the EAAD was a contributing
factor in the agency’s decision to remove him. ID at 7-8. Accordingly, the
administrative judge dismissed the appellant’s IRA appeal for lack of jurisdiction.
ID at 9.
¶6The appellant timely filed a petition for review, in which he merely asserts
that he was retaliated against. Petition for Review (PFR) File, Tab 1. The agency
has filed a response opposing the petition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7Generally, the Board has jurisdiction over an IRA appeal if the appellant
has exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that (1) he made a protected disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)
(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). Under
certain circumstances, however, an appellant can establish jurisdiction over an
IRA appeal without making a nonfrivolous allegation that he made a protected
disclosure. King v. Department of the Army , 116 M.S.P.R. 689, ¶ 6 (2011).
Specifically, an individual who is perceived as a whistleblower is still entitled to
the protections of the Whistleblower Protection Act, as amended by the
Whistleblower Protection Enhancement Act of 2012 (WPEA), even if he has not
made protected disclosures or engaged in protected activity. Id.; Corthell v.
Department of Homeland Security , 123 M.S.P.R. 417, ¶¶ 12-13 (2016), overruled
on other grounds by Requena v. Department of Homeland Security , 2022 MSPB
39. To establish the Board’s jurisdiction over a claim of retaliation for being4
perceived as a whistleblower, the appellant must show that he exhausted his
administrative remedies with OSC and make nonfrivolous allegations that (1) the
agency perceived him as making or intending to make a whistleblowing
disclosure, or engaging in or intending to engage in a protected activity, and
(2) the agency’s perception was a contributing factor in its decision to take or not
take the personnel action at issue. See Corthell, 123 M.S.P.R. 417, ¶¶ 12-13;
Rumsey v. Department of Justice , 120 M.S.P.R. 259, ¶ 8 (2013).
The appellant exhausted his administrative remedies regarding his disclosure to
the EAAD, but he failed to exhaust his remedies regarding his disclosure to the
EMS Chief and his claim of being perceived as a whistleblower.
¶8Under 5 U.S.C. § 1214(a)(3), an appellant is required to “seek corrective
action from [OSC] before seeking corrective action from the Board” through an
IRA appeal. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10.
To satisfy this requirement, an appellant must provide to OSC a sufficient basis to
pursue an investigation that might lead to corrective action. Id. The purpose of
the exhaustion requirement is to give OSC “the opportunity to take corrective
action before involving the Board in the case.” Ward v. Merit Systems Protection
Board, 981 F.2d 521, 526 (Fed. Cir. 1992).
¶9In his OSC complaint, the appellant alleged that he met with the EAAD on
December 6, 2018, to initiate a complaint against his first-line supervisor for
abuse of power, abusive behavior toward male staff, and inappropriate and
offensive conduct with female staff. IAF, Tab 1 at 19. The appellant stated that
he also wanted to report the harassment and bullying that he personally
experienced from the supervisor. Id. The administrative judge found that the
appellant sufficiently exhausted this disclosure with OSC. ID at 4-5. We see no
reason to disturb that well-reasoned finding. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 105-06 (1997) (finding that the Board will not disturb an
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences from the evidence, and made reasoned conclusions).5
¶10The appellant also stated in his OSC complaint that he requested that the
EMS Chief move him to the day shift so that he could work under a different
supervisor, but that this request was denied. IAF, Tab 1 at 19. Although before
the Board the appellant stated that he also made a disclosure to the EMS Chief
about his first-line supervisor’s abusive behavior, IAF, Tab 8 at 6-7, such
information was absent from his OSC complaint, IAF, Tab 1 at 13-25. OSC’s
close-out letter does not indicate that OSC was aware of any such disclosure by
the appellant to the EMS Chief. Id. at 31. Nor is there any other correspondence
in the record between the appellant and OSC through which such information
might have been conveyed. We therefore discern no basis for disturbing the
administrative judge’s well-reasoned finding that the appellant failed to exhaust
this disclosure with OSC. ID at 4-5.
¶11Nowhere in his OSC complaint does the appellant reference being perceived
as a whistleblower, and OSC’s close-out letter does not indicate that OSC
understood him as raising such a claim. IAF, Tab 1 at 13-25, 31. As previously
noted, the administrative judge provided the appellant with notice on how to
establish jurisdiction over his IRA appeal based on a claim that he was perceived
as a whistleblower. IAF, Tab 3 at 5-8. Accordingly, we agree with the
administrative judge’s finding that the appellant failed to exhaust this claim with
OSC. ID at 4-5; see El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 12
(2015) (finding that the appellant failed to exhaust with OSC his claim that he
may have been perceived as a whistleblower), aff’d, 663 F. App’x 921 (Fed. Cir.
2016).
The appellant failed to nonfrivolously allege that his disclosure to the EAAD
about his supervisor was protected.
¶12A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno,6
123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidenced a violation of law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Id. The disclosures must be specific and detailed, not
vague allegations of wrongdoing. Id.
¶13Regarding the appellant’s allegation that he disclosed to the EAAD that his
first-line supervisor was abusing his power and engaging in abusive behavior, the
appellant has provided virtually no details in support of this contention. In his
OSC complaint, he stated that his supervisor abused his power, was abusive
toward male subordinate staff, and that his supervisor’s conduct toward female
subordinate staff was inappropriate and offensive. IAF, Tab 1 at 19. The
appellant also stated that the harassment “included threats of getting rid of us
(employees)” and “being written up” based on untrue allegations. Id. He
reasserted these same vague claims before the Board, and, as previously noted,
added that he believed his supervisor’s conduct toward female staff rose to the
level of sexual harassment. IAF, Tab 8 at 6. However, the appellant failed to
provide even a single, specific example of his supervisor’s alleged abuse of
power or harassment. Accordingly, the administrative judge found that the
appellant failed to nonfrivolously allege that he made a protected disclosure to
the EAAD about his supervisor’s conduct. ID at 5-6. We see no reason to disturb
that finding. Crosby, 74 M.S.P.R. at 105-06.
¶14Regarding the appellant’s vague allegation of his supervisor sexually
harassing female employees, the administrative judge correctly noted that
disclosures regarding allegations of sex discrimination and sexual harassment are
not protected disclosures under 5 U.S.C. § 2302(b)(8). ID at 6; see Edwards v.
Department of Labor , 2022 MSPB 9, ¶ 22, aff’d, No. 2022-1967, 2023 WL7
4398002 (Fed. Cir. July 7, 2023). Although the administrative judge relied on
cases that predated the enactment of the WPEA in reaching this finding, the
Board has recently clarified that the WPEA does not alter the long-standing
administrative and judicial interpretation that Title VII-related claims are
excluded from protection under the whistleblower protection statutes. Edwards,
2022 MSPB 9, ¶ 22.
The appellant failed to nonfrivolously allege that his disclosure to the EAAD was
a contributing factor in his termination.
¶15To satisfy the contributing factor criterion at the jurisdictional stage of an
IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact
or the content of the protected disclosure was one factor that tended to affect the
personnel action in any way. Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547, ¶ 13 (2016). One way to establish this criterion is the
knowledge/timing test, under which an employee may nonfrivolously allege that
the disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the disclosure and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id.
¶16Here, the appellant’s purported disclosure to the EAAD occurred 1 day
before he received the notice that he was to be terminated. As the administrative
judge found, this satisfies the timing component of the knowledge/timing test. ID
at 8; see Ontivero v. Department of Homeland Security , 117 M.S.P.R. 600, ¶ 23
(2012) (finding that a personnel action taken within approximately 1 to 2 years of
the appellant’s disclosures satisfies the timing component of the
knowledge/timing test). The administrative judge nevertheless found that the
appellant failed to nonfrivolously allege that the disclosure was a contributing
factor in his termination because he failed to allege that the officials involved in
his termination—namely, the EMS Chief as the proposing official and the Human8
Resources (HR) Chief as the deciding official—were aware of the disclosure. ID
at 7-8. We discern no basis for disturbing the administrative judge’s finding that
the appellant failed to nonfrivolously allege that the proposing and deciding
officials were aware of his disclosure.2
¶17However, the Board has held that, if an administrative judge determines that
an appellant has failed to satisfy the knowledge/timing test, she shall consider
other evidence, such as evidence pertaining to the strength or weakness of the
agency’s reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding officials, and whether these
individuals had a desire or motive to retaliate against the appellant. Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). Here, the administrative
judge did not consider evidence other than that pertaining to the
knowledge/timing test in relation to the contributing factor issue. Nevertheless,
she did provide the appellant with notice of how he could meet the contributing
factor element of his appeal based on evidence other than that related to the
knowledge/timing test. IAF, Tab 3 at 4-5.
¶18Concerning the strength of the agency’s evidence in support of its action,
the agency terminated the appellant due to his alleged excessive and unauthorized
absences, insubordination, and disrespectful behavior toward employees and
patients. IAF, Tab 6 at 11. These allegations against the appellant are supported
by numerous contemporaneous reports and memoranda from the appellant’s
first-line supervisor and others, dated between September 30, 2018, and
November 9, 2018, documenting the appellant’s alleged misconduct, unauthorized
absences, and excessive leave. Id. at 14-46. Other than to assert in conclusory
fashion that he was terminated because of his disclosures and that the agency’s
allegations are unsubstantiated, the appellant did not dispute any of the agency’s
specific allegations against him. IAF, Tab 1 at 6, 19, 25.
2 Additionally, there is no information in the record to indicate that anyone aware of the
appellant’s alleged protected disclosures influenced the individuals who took the
personnel action involved.9
¶19Regarding the issue of whether the disclosures were directed at the
proposing or deciding officials, the appellant’s disclosure to the EAAD was
personally directed against his first-line supervisor, who did not serve as either
the proposing or deciding official in this matter. Moreover, we discern no
evidence indicating that the proposing and deciding officials had a desire or
motive to retaliate against the appellant. Accordingly, we find that the appellant
failed to nonfrivolously allege that his protected disclosure was a contributing
factor in the agency’s decision to terminate him.
We vacate the administrative judge’s findings that the appellant failed to
nonfrivolously allege that he was perceived as a whistleblower and that such
perception was a contributing factor in his termination.
¶20In the case of a perceived whistleblower, the focus is on the agency’s
perception, i.e., whether the agency officials involved in the personnel actions at
issue believed that the appellant made or intended to make disclosures that
evidenced the type of wrongdoing listed under 5 U.S.C. § 2302(b)(8). King,
116 M.S.P.R. 689, ¶ 8. The issue of whether the appellant actually made
protected disclosures is immaterial; the issue of whether the agency perceived the
appellant as a whistleblower will essentially stand in for that portion of the
Board’s analysis in both the jurisdictional and merits stages of the appeal. Id.
¶21The administrative judge found that the appellant failed to nonfrivolously
allege that he was perceived as a whistleblower by the responsible agency
officials or that such a perception, if it existed, was a contributing factor in his
termination, because he never alleged that the EMS Chief or HR Chief knew of
his disclosure to the EAAD or otherwise viewed him as a whistleblower. ID at 7.
As stated above, we agree with the administrative judge that the appellant failed
to exhaust with OSC his claim regarding being perceived as a whistleblower. ID
at 5. We therefore find it unnecessary to consider this claim further and vacate
the administrative judge’s alternative finding that the appellant failed to10
nonfrivolously allege that he was perceived as a whistleblower and that any such
perception was a contributing factor in his termination.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. §1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on12
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or13
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Baylor_Thomas_J_DC-1221-19-0493-W-1__Final_Order.pdf | 2024-07-02 | THOMAS J. BAYLOR v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-1221-19-0493-W-1, July 2, 2024 | DC-1221-19-0493-W-1 | NP |
1,084 | https://www.mspb.gov/decisions/nonprecedential/Valdez_LauraDA-0752-22-0370-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURA VALDEZ,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-0752-22-0370-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ellen Sprovach , Esquire, Houston, Texas, for the appellant.
Bridgette Gibson , Esquire, and Michael L Salyards , Esquire, Dallas, Texas,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
found that the agency failed to prove its charge and reversed the appellant’s
removal. On petition for review, the agency argues that the administrative judge
erred in weighing the evidence and, more specifically, in finding that a hearsay
statement was entitled to no weight. Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
ORDER
¶2We ORDER the agency to cancel the removal and to restore the appellant
effective June 21, 2022. See Kerr v. National Endowment for the Arts , 726 F.2d
730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
¶3We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision. 2
¶4We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶5No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶6For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.3
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).9
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. 10 | Valdez_LauraDA-0752-22-0370-I-1__Final_Order.pdf | 2024-07-02 | LAURA VALDEZ v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-0752-22-0370-I-1, July 2, 2024 | DA-0752-22-0370-I-1 | NP |
1,085 | https://www.mspb.gov/decisions/nonprecedential/McWhorter_StaceyAT-0752-20-0250-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACEY MCWHORTER,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-20-0250-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stacey McWhorter , McDonough, Georgia, pro se.
Jeanelle L. Graham , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her alleged constructive removal appeal for lack of jurisdiction. On
petition for review, the appellant recounts her allegations of intolerable working
conditions as set forth in her various prior equal employment opportunity
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
complaints and argues that she was forced to resign for health reasons when the
agency denied her request for reasonable accommodation. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | McWhorter_StaceyAT-0752-20-0250-I-1__Final_Order.pdf | 2024-07-02 | STACEY MCWHORTER v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-20-0250-I-1, July 2, 2024 | AT-0752-20-0250-I-1 | NP |
1,086 | https://www.mspb.gov/decisions/nonprecedential/Jenkins_Duane_E_DC-1221-20-0415-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DUANE E. JENKINS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-20-0415-W-1
DATE: July 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Nicholas Woodfield , Esquire, Washington, D.C., for the appellant.
Benjamin Owen , Esquire, and Daniel Piccaluga , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is a GS-15 Supervisory Emergency Management Specialist
for the agency’s Federal Emergency Management Agency (FEMA), National
Preparedness Directorate, Technological Hazards Division. Initial Appeal File
(IAF), Tab 1 at 1, Tab 9 at 26.
The appellant stated below that one of the Technological Hazards
Division’s key programs is the Radiological Emergency Preparedness Program.
IAF, Tab 1 at 8. Through this program, FEMA provides executable training,
planning, and exercise guidance to state, local, and tribal governments. Id. The
appellant is responsible for managing the program’s funds, including its exercise
support system, which is an information technology infrastructure that stores
budget, cost, and performance data collected during radiological emergency
drills. Id. In 2014, FEMA decided to consolidate its exercise support system into
a single software platform, and the Associate Administrator for the National
Preparedness Directorate tasked various officials, including the appellant, with
assessing the agency’s options. Id. at 8-9. It appears that the two primary
contenders were Liferay (which was the current platform) and Salesforce. Id. at
9. After analyzing the options, the appellant and the Technological Hazards
Division recommended Salesforce, but in September 2015, the Associate
Administrator decided to use Liferay instead. Id. at 9-10. According to the
appellant, this was the wrong decision because the Salesforce platform is faster,
less expensive, and more secure. Id. Furthermore, the Associate Administrator
had already directed the Technological Hazards Division to build out its own
exercise system using Salesforce, so the division was forced to decommission this
support system that it had just built and migrate back to Liferay. Id. at 11-12. 2
The appellant filed a whistleblower complaint with the Office of Special
Counsel (OSC). Id. at 22-23. On January 30, 2020, OSC closed the appellant’s
file without taking corrective action. Id. On February 28, 2020, the appellant
filed an IRA appeal and requested a hearing, claiming that the agency took
several personnel actions against him in retaliation for various protected
activities. Id. at 2, 6-15. Specifically, the appellant alleged the following six
personnel actions: (1) a hostile work environment in early 2017, (2) a
“continued” hostile work environment from 2017 through 2019, (3) a
performance improvement plan (PIP) in December 2016, (4) a February 10, 2017
letter of reprimand, (5) lowered performance evaluations in February 2018 and
February 2019, and (6) denial of reasonable accommodation in 2017 and 2018.2
Id. at 12-16. He alleged that the agency took these actions in retaliation for the
following activities: (1) a September 2016 disclosure to OSC alleging a gross
mismanagement, abuse of authority, and a gross waste of funds in connection
with the agency’s selection of a software platform for its exercise system; (2) a
July 26, 2016 complaint regarding the same matter to FEMA’s Office of Fraud
and Investigations and a related Inspector General (IG) interview later that fall;
(3) a whistleblower retaliation complaint to OSC on an unspecified date; (4) a
hostile work environment complaint to the agency’s human resources department;
and (5) a February 11, 2019 complaint to the FEMA Administrator alleging
whistleblower retaliation. Id. at 11-16.
The administrative judge issued the standard acknowledgment order for an
IRA appeal, notifying the appellant of his jurisdictional burden and instructing
him to file evidence and argument on the issue. IAF, Tab 3. After the parties
responded, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). She found that
the appellant exhausted some but not all of his claims before OSC, and that he
2 In March 2017, the appellant was diagnosed with multiple sclerosis. IAF, Tab 5 at 4,
167.3
failed, variously, to make nonfrivolous allegations that his disclosures were
protected or that they were contributing factors in a personnel action. ID at 5-13.
The appellant has filed a petition for review, disputing the administrative
judge’s jurisdictional analysis. Petition for Review (PFR) File, Tab 1. The
agency has responded to the petition for review, and the appellant has filed a
reply to the agency’s response. PFR File, Tabs 3-4.
ANALYSIS
To establish Board jurisdiction over an IRA appeal, an appellant must show
by preponderant evidence that he exhausted his remedies before OSC and make
nonfrivolous allegations that (1) he made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in a protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a) . Linder v. Department of
Justice, 122 M.S.P.R. 14, ¶ 6 (2014); 5 C.F.R. § 1201.57(a)(1), (b), (c)(1).
“[T]he question of whether the appellant has non-frivolously alleged protected
disclosures that contributed in a personnel action must be determined based on
whether the employee alleged sufficient factual matter, accepted as true, to state a
claim that is plausible on its face.” Hessami v. Merit Systems Protection Board ,
979 F.3d 1362, 1369 (Fed. Cir. 2020); see 5 C.F.R. § 1201.4(s) (reflecting that a
nonfrivolous allegation is an assertion that, if proven, could establish jurisdiction
over the matter at issue).
The appellant exhausted his administrative remedies with OSC as to some of his
claims.
The appellant did not file a copy of his original OSC complaint or OSC’s
substantive determination letter. IAF, Tab 1 at 22-23. Accordingly, the only
evidence of exhaustion in the record is contained in the appellant’s declaration, a4
subsequent letter from the appellant to OSC,3 and the OSC close-out letter. IAF,
Tab 1 at 22-23, Tab 5 at 167-68, Tab 10 at 7-9.
As an initial matter, we must discuss the evidentiary value of the
appellant’s declaration. In his response to the jurisdictional order, the appellant
submitted an unsigned copy of the declaration. IAF, Tab 5 at 27-29. However,
after the agency pointed out this error in its jurisdictional response, IAF, Tab 9
at 10, 14, the appellant supplemented the record, with the agency’s consent, by
submitting a signed copy of the declaration, IAF, Tab 10. The administrative
judge, however, found that the declaration was entitled to “very little weight”
because only after the agency’s jurisdictional response did the appellant submit “a
newly signed version of the unsigned declaration he previously submitted.” ID
at 8. We disagree. The declaration was not newly signed in response to the
agency’s jurisdictional pleading. Rather, as the appellant stated below and
confirmed on review by submitting a copy of an email exchange, he signed the
declaration 3 days prior to submitting the jurisdictional response, but his
representative inadvertently submitted an unsigned copy. IAF, Tab 5 at 27-29,
Tab 10; PFR File, Tab 1 at 29-30. Once the agency pointed out this mistake, the
appellant acted promptly to cure it. We do not find it appropriate to discount the
value of the appellant’s declaration under these circumstances as something
inherently untrustworthy or concocted after the fact. See Parbs v. U.S. Postal
Service, 107 M.S.P.R. 559, ¶ 18 (2007) (“Generally, a statement signed under
penalty of perjury and not rebutted is competent evidence of the assertions
contained therein.”), aff’d per curiam , 301 F. App’x 923 (Fed. Cir. 2008).
Although she did not credit the allegations in the appellant’s declaration,
the administrative judge found sufficient evidence in OSC’s close-out letter to
3 The administrative judge declined to consider the appellant’s subsequent letter to
OSC, finding insufficient evidence that OSC ever actually received or considered this
letter. ID at 6-7; IAF, Tab 5 at 167-68. However, as explained in paragraph 8 below,
we credit the appellant’s declaration and find it sufficient to show that he sent this letter
to OSC as an amendment to his original complaint. IAF, Tab 10 at 7. 5
show that he alleged before OSC that the agency retaliated against him by placing
him on a PIP, issuing him a letter of reprimand, changing his duties, lowering his
performance ratings, and creating a hostile work environment. ID at 6. The
agency does not dispute these findings on review, and we find that they are
supported by the record. IAF, Tab 1 at 29-30. The administrative judge also
found that there was no evidence to show that the appellant exhausted his
administrative remedies with respect to a denial of reasonable accommodation.
ID at 6. However, based on the appellant’s declaration, which we find to be
competent evidence of the assertions contained therein, we find that the appellant
did raise this matter before OSC. IAF, 5 at 167-68, Tab 10 at 8. We therefore
find preponderant evidence that the appellant exhausted his administrative
remedies with respect to each of the five personnel actions listed below.
As explained above, the appellant identified five different disclosures that
he alleges were contributing factors in these personnel actions. However, we find
that the appellant’s first claimed disclosure is better analyzed as two separate
disclosures. The appellant’s description of this disclosure differs somewhat
between his initial appeal filing and his response to the administrative judge’s
jurisdictional order; in the former, he describes it as a 2016 disclosure to OSC,
but in the latter, he describes it as including previous disclosures to agency
management as well. IAF, Tab 1 at 11-12, Tab 5 at 5-6. In her initial decision,
the administrative judge analyzed this disclosure according to the narrower
characterization in the initial appeal filing, but we find it more appropriate to
consider the broader claim that the appellant articulated in his jurisdictional
pleading. ID at 7. Because these disclosures were made to different people and
are subject to coverage by different provisions of 5 U.S.C. § 2302(b), we consider
them separately as alleged 2015 disclosures to agency management protected
under 5 U.S.C. § 2302(b)(8)(A) and an alleged 2016 disclosure to OSC protected
under 5 U.S.C. § 2302(b)(9)(C).6
In her initial decision, the administrative judge found sufficient evidence in
OSC’s close-out letter to show that the appellant alleged before OSC that these
personnel actions were in retaliation for reporting various types of wrongdoing in
connection with the agency’s selection and implementation of the Liferay
exercise platform. ID at 6. We find that the evidence is sufficient to show that
the appellant exhausted his administrative remedies with respect to his alleged
disclosure, made several times to various agency officials in 2015, that, among
other things, the agency wasted Government funds when it paid Liferay to
develop a system that it had already paid another vendor to develop. IAF, Tab 1
at 11, Tab 5 at 36, Tab 10 at 7-8. The record also shows that the appellant
exhausted his administrative remedies with respect to his internal complaint to
FEMA’s Office of Fraud and Investigation, which was subsequently referred to
the agency’s IG. IAF, Tab 1 at 22, Tab 10 at 8. However, we do not find any
evidence that the appellant exhausted his administrative remedies with respect to
his other alleged protected activities, i.e., his 2016 OSC disclosure, the OSC
whistleblower retaliation complaint itself, emails he sent to an agency human
resources official, and a February 11, 2019 email to the FEMA Administrator.
IAF, Tab 1 at 11-12, 15-16. Therefore, we find preponderant evidence that the
appellant exhausted his administrative remedies with respect to two of his alleged
protected activities: his 2015 disclosures to various agency officials and his
July 26, 2016 internal complaint to FEMA’s Office of Fraud and Investigations,
followed by his cooperation with an IG investigation.
The appellant made a nonfrivolous allegation that his two exhausted disclosures
were protected.
Regarding his first exhausted disclosure, the record shows that, several
times in 2015, the appellant disclosed to the Director, the Associate
Administrator, and several other officials that, among other things, “spending
funds to develop a system in Liferay after we just paid several million dollars to
develop a system in Salesforce is a waste of government funds.” IAF, Tab 57
at 36. According to the appellant, for reasons discussed in his 2014-2015
analysis, the agency’s choice of Liferay over Salesforce would be “without any
benefit.” Id. at 10. Based on these facts, as presented by the appellant, we find
that he made a nonfrivolous allegation that his 2015 disclosures were protected
under 5 U.S.C. § 2302(b)(8)(A) because he reasonably believed that they
evidenced a gross waste of funds.4 See Hessami, 979 F.3d at 1369-70 (concluding
that a petitioner nonfrivolously alleged that a reasonable person in her position
could conclude that the prescription of a medical regimen that allegedly cost the
agency hundreds of thousands of dollars more than less costly alternatives was a
gross waste of funds). The administrative judge found that the appellant lacked a
reasonable belief that his disclosure evidenced any category of wrongdoing, based
on his statements in a November 30, 2015 email that “I do not and will not make
any appearances of disputing or countermanding [the Associate Administrator’s]
decision,” the incompleteness of the report upon which the Associate
Administrator relied was a “disservice” to her, and “if I were in her position and
not known any better, I would make the same decision.” ID at 10-11; IAF, Tab 5
at 32-33. We disagree with the administrative judge. The reasonableness of an
appellant’s belief that his disclosure was protected is determined from the
perspective of a reasonable person in his position. Mudd v. Department of
Veterans Affairs , 120 M.S.P.R. 365, ¶¶ 8-9 (2013). These conciliatory statements
in the appellant’s email about the quality of information provided to the Associate
Administrator do not defeat his claim.
The appellant alleges that his second exhausted disclosure was a July 26,
2016 internal complaint to FEMA’s Office of Fraud and Investigations. IAF,
4 In light of this finding, we decline to reach the issue of whether the appellant made a
nonfrivolous allegation that this disclosure also evidenced gross mismanagement or an
abuse of authority, as he asserts. IAF, Tab 5 at 16; see Bump v. Department of the
Interior, 69 M.S.P.R. 354, 361-62 & n.* (1996) (finding it unnecessary to determine
whether an appellant established jurisdiction over his disclosures as evidencing gross
mismanagement in light of the finding that the Board had jurisdiction over the same
disclosures as evidencing a perceived regulatory violation).8
Tab 5 at 6. The appellant included a copy of this complaint for the appeal file.
Id. at 38-63. This disclosure contains, among other things, substantially the same
allegations regarding a gross waste of funds as discussed above in connection
with the appellant’s first disclosure. Id. at 38-45. We therefore find that the
appellant has also made a nonfrivolous allegation that this disclosure was
protected under 5 U.S.C. § 2302(b)(8)(A).5 The appellant also alleges that, in
September 2016, the Office of Fraud and Investigations forwarded this complaint
to the IG, which interviewed the appellant and the Associate Administrator. Id.
at 6. We therefore find that the appellant has made a nonfrivolous allegation that,
at this point, his activity also became protected under 5 U.S.C. § 2302(b)(9)(C).
That provision identifies “cooperating with or disclosing information to” the IG
as a protected activity.
In sum, we find that the appellant has made nonfrivolous allegations that
his two exhausted disclosures were protected. Those disclosures are (1)
disclosures in 2015 to the Director, the Associate Administrator, and several other
agency officials evidencing a gross waste of funds under 5 U.S.C. § 2302(b)(8)
(A), and (2) a July 26, 2016 internal complaint to FEMA’s Office of Fraud and
Investigations evidencing a gross waste of funds under § 2302(b)(8)(A),6
5 This activity would clearly be protected under 5 U.S.C. § 2302(b)(9)(C) as currently
enacted, as a disclosure to an agency “component responsible for internal investigation
or review.” However, at the time the appellant made this disclosure, coverage under
5 U.S.C. § 2302(b)(9)(C) was limited to communications with OSC or an IG of an
agency. 5 U.S.C. § 2302(b)(9)(C) (2015) (amended in relevant part by the National
Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 1097(c)(1)(A),
131 Stat. 1283, 1618 (2017)). The subsequent amendments to this statute are not
retroactive. Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 29-33.
6 We do not make a determination here as to whether the appellant made either of his
disclosures in the normal course of his duties. See Williams v. Department of Defense ,
2023 MSPB 23, ¶¶ 9-12 (finding that a determination of whether a disclosure was made
in the normal course of an appellant’s duties should be made as part of an appellant’s
prima facie case after full development of the record, rather than at the jurisdictional
stage of an IRA appeal).9
followed by cooperation with the IG, protected under § 2302(b)(9)(C), about the
same disclosure.
The appellant has made a nonfrivolous allegation that the agency took or
threatened to take five personnel actions against him.
As stated above, the appellant has claimed six distinct personnel actions in
this IRA appeal. However, we find it appropriate to consider the appellant’s two
hostile work environment claims together with his denial of reasonable
accommodation claim as part of a single alleged personnel action. The Board has
recognized that, under 5 U.S.C. § 2302(a)(2)(A)(xii), a hostile work environment
may constitute a personnel action to the extent that it amounts to a significant
change in duties, responsibilities, or working conditions. Savage v. Department
of the Army, 122 M.S.P.R. 612, ¶ 23 (2015), overruled in part on other grounds
by Pridgen v. Office of Personnel Management , 2022 MSPB 31, ¶¶ 23-25. Only
agency actions that, individually or collectively, have practical and significant
effects on the overall nature and quality of an employee’s working conditions,
duties, or responsibilities will rise to the level of a personnel action under
§ 2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs , 2022 MSPB 17,
¶ 16. It is not clear to us why the appellant has attempted to separate his
allegations of a hostile work environment into two distinct personnel actions,
especially considering that the claimed periods of hostile work environment are
continuous, and such claims, by their very nature, involve repeated conduct, a
single incident of which may not be actionable on its own. Hamley v. Department
of the Interior, 122 M.S.P.R. 290, ¶ 7 (2015). We therefore find it appropriate to
consider the appellant’s hostile work environment claims together as a single
allegation of significant change in duties, responsibilities, and working
conditions.
Regarding the claimed denial of reasonable accommodation, such an action
is not separately enumerated under 5 U.S.C. § 2302(a)(2)(A), and the appellant
has not otherwise explained why he believes that it fits the definition of10
“personnel action” under that subparagraph. See Reid v. Merit Systems Protection
Board, 508 F.3d 674, 679 (Fed. Cir. 2007) (declining to consider a conclusory
allegation of a denial of reasonable accommodation for a disability as a
“personnel action”). Nevertheless, we find it appropriate to consider this matter
as part of the appellant’s allegations of a significant change in duties,
responsibilities, and working conditions. See Covarrubias v. Social Security
Administration, 113 M.S.P.R. 583, ¶ 15 n.4 (2010) (finding a nonfrivolous
allegation of a significant change in working conditions based, in part, on
disability discrimination), overruled on other grounds by Colbert v. Department
of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 n.5 (2014).
Turning to the substance of the appellant’s allegations, we find that some
of them are too vague and conclusory to rise to the level of nonfrivolous
allegations that would merit a finding of Board jurisdiction. See Lewis v.
Department of Defense , 123 M.S.P.R. 255, ¶ 12 (2016) (finding that an
appellant’s allegations regarding a hostile environment and mismanagement were
too vague and conclusory to rise to the level of nonfrivolous allegations that
would merit a finding of the Board's jurisdiction). For instance, the appellant
states that, in February 2018, Director 1 issued a memorandum outlining which of
the appellant’s requested accommodations had been granted, which had been
denied, and which were still being considered, and that some of the contents of
the memorandum were inaccurate.7 Id. at 10. However, the appellant does not
state which of his requested accommodations were denied or explain what was
inaccurate about Director 1’s memorandum. Id.
We find that some of the appellant’s other allegations are more than
conclusory and are sufficiently detailed to rise to the level of nonfrivolous. In
7 The appellant’s first- and second-line supervisors are the Deputy Division Director
and Division Director, respectively. IAF, Tab 5 at 39. At some point (the record does
not reveal exactly when), both of these positions changed hands. We refer to the
incumbents of these positions as Deputy Directors 1 and 2 and Directors 1 and 2, in
order of their tenure.11
particular, the appellant alleges that the agency reorganized his department to
remove two components from his supervision, thereby depriving him of human
resources and administrative support staff. IAF, Tab 5 at 7; see McDonnell v.
Department of Agriculture , 108 M.S.P.R. 443, ¶ 23 (2008) (finding that the
appellant made a nonfrivolous allegation of a significant change in duties,
responsibilities, or working conditions in connection with an alleged undermining
of her supervisory authority). The appellant also alleges that “he was excluded
from performing several of his previous work duties,” including the Division’s
budget responsibilities. IAF, Tab 5 at 7, 167; see Askew v. Department of the
Army, 88 M.S.P.R. 674, ¶ 24 (2001) (finding that the removal of significant duties
is a personnel action). Considering these matters in conjunction with the
appellant’s other specific allegations, including that the agency began denying
him routine travel requests and Director 1 and Deputy Director 1 became
confrontational towards him during routine work meetings, we find that the
appellant has made a nonfrivolous allegation that, in the aggregate, the agency
subjected him to a significant change in duties, responsibilities, or working
conditions.8 IAF, Tab 5 at 18-19, 21, 167-68.
The appellant’s remaining claimed personnel actions clearly fall under
5 U.S.C. § 2302(a)(2)(A). The Board has found that placement on a PIP, by
definition, involves a threatened personnel action, such as a reduction in grade or
a removal, and is therefore within the Board’s IRA jurisdiction. Gonzales v.
Department of Housing & Urban Development , 64 M.S.P.R. 314, 319 (1994). In
addition, a letter of reprimand is a “disciplinary or corrective action” under
5 U.S.C. § 2302(a)(2)(A)(iii). Gonzales, 64 M.S.P.R. at 319. Furthermore,
5 U.S.C. § 2302(a)(2)(A)(viii) specifically includes a performance evaluation
under the definition of “personnel action.” Gonzales, 64 M.S.P.R. at 319.
Although the appellant lists his February 2018 and February 2019 performance
8 In considering the appellant’s alleged hostile work environment on the merits, the
administrative judge must consider the agency’s actions both individually and
collectively. Skarada, 2022 MSPB 17, ¶ 16.12
evaluations as a single personnel action, we find that they are separate personnel
actions taken at different times by different officials and that they should be
analyzed as such. For these reasons, we find that the appellant has made
nonfrivolous allegations that the agency imposed the following personnel actions
or threatened personnel actions upon him: (1) A significant change in duties,
responsibilities, and working conditions beginning in 2017, (2) a December 2,
2016 PIP, (3) a February 10, 2017 letter of reprimand, (4) an unfavorable
performance evaluation in February 2018, and (5) an unfavorable performance
evaluation in February 2019.
The appellant made a nonfrivolous allegation that his protected activity was a
contributing factor in some of the personnel actions.
The most common way of proving the contributing factor element of a
whistleblower claim is the knowledge/timing test. Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285, ¶ 27 (2013). Under that test, an appellant
can prove that his disclosure was a contributing factor in a personnel action
through evidence that the official taking the personnel action knew of the
protected disclosure or activity and took the personnel action within a period of
time such that a reasonable person could conclude that the disclosure or activity
was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); Chavez,
120 M.S.P.R. 285, ¶ 27. However, even if the knowledge/timing test is not
satisfied, an appellant can still prove contributing factor by alternative means. In
that case, the Board will consider other evidence, such as that pertaining to the
strength or weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing was personally directed at the proposing or deciding
officials, and whether those individuals had a desire or motive to retaliate against
the appellant. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012).
As the first step of our contributing factor analysis, we will identify the
officials who were involved in the alleged personnel actions at issue. The
appellant alleged that the hostile work environment (significant change in duties,13
responsibilities, and working conditions) was perpetrated by Director 1 and
Deputy Director 1. IAF, Tab 5 at 18-21. The appellant did not provide a copy of
the PIP notice, and he did not specifically identify the official who decided to
place him on a PIP. However, we take notice that a PIP would normally be
implemented by an employee’s direct supervisor, and it would be very unusual for
PIP proceedings to begin without a supervisor’s input. We therefore infer that
Deputy Director 1, Director 1, or both were involved in the decision to place the
appellant on a PIP in December 2016. See Cahill v. Merit Systems Protection
Board, 821 F.3d 1370, 1374-75 (Fed. Cir. 2016) (finding a nonfrivolous
allegation of contributing factor by drawing likely inferences appropriate to the
context of the appellant’s allegations).
The record shows that the February 10, 2017 letter of reprimand was issued
by Deputy Director 1. IAF, Tab 5 at 163-66. The appellant alleges that his
February 2018 performance evaluation was issued by Deputy Director 1 and
Director 1, his first- and second -line supervisors, as would be expected. Id. at 9.
Finally, the appellant alleges that his February 2019 performance evaluation was
issued by Deputy Director 2 and Director 2. Id. It therefore appears that, with
the exception of the February 2019 performance evaluation, Director 1 and
Deputy Director 1 were the officials responsible for taking all of these claimed
personnel actions. In addition, the appellant alleges that the Associate
Administrator was partially responsible for the significant change in duties,
responsibilities, and working conditions because she was involved in denying
some of his travel requests. IAF, Tab 1 at 7-8.
We next determine whether the appellant has made a nonfrivolous
allegation that his first disclosures in 2015 were a contributing factor in any of
these personnel actions. The appellant specifically alleged that he made these
disclosures to Director 1, Deputy Director 1, the Associate Administrator, and
various other agency officials. IAF, Tab 5 at 5, 16. This allegation is supported
by evidence in the form of copies of emails between the appellant and Deputy14
Director 1, dated late November and early December 2015. Id. at 31-37. We find
that, under the knowledge/timing test, the appellant has made a nonfrivolous
allegation that his 2015 disclosures were a contributing factor in the December 2,
2016 PIP, the February 10, 2017 letter of reprimand, and those aspects of the
significant change in duties, responsibilities, and working conditions that
occurred through the end of 2017. See Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 21 (2015) (finding that a personnel action taken within
approximately 1 to 2 years of the appellant’s disclosures satisfies the
knowledge/timing test).
As for the February 2018 performance evaluation and subsequent changes
in duties, responsibilities, and working conditions, considered in isolation, these
would likely be too remote to draw an inference of contributing factor under the
knowledge/timing test. See Salinas v. Department of the Army , 94 M.S.P.R. 54,
¶ 10 (2003) (finding that a period of more than 2 years between an alleged
disclosure and the alleged personnel actions was too remote to satisfy the
knowledge/timing test). However, to the extent that these personnel actions can
be viewed as a continuation of the earlier personnel actions, the appellant could
satisfy the contributing factor element. See Agoranos v. Department of Justice ,
119 M.S.P.R. 498, ¶¶ 22-23 (2013) (finding that personnel actions taken more
than 2 years after the protected disclosure satisfied the knowledge/timing test
when they were part of a continuum of related performance-based personnel
actions, the first of which occurred within 2 years of the disclosure). Resolving
all doubts and drawing reasonable inferences in the appellant’s favor at this
jurisdictional stage, we find that he has made a nonfrivolous allegation that his
2015 disclosures were a contributing factor in these later actions as well.
As for the February 2019 performance evaluation, the appellant alleged that
Director 2 and Deputy Director 2 were aware, “either directly or institutionally,”
of his disclosures. IAF, Tab 1 at 19. He offers no explanation of how these two
officials might have come to know of his disclosures or why he thinks that they15
did. We find that this conclusory allegation does not satisfy the nonfrivolous
standard of 5 C.F.R. § 1201.4(s). Nor has the appellant alleged that Director 2 or
Deputy Director 2 were influenced in their decision by anyone with actual
knowledge of his disclosures. Cf. Aquino v. Department of Homeland Security ,
121 M.S.P.R. 35, ¶ 19 (2014) (finding that an appellant may establish an
official’s constructive knowledge of a protected disclosure by demonstrating that
an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action).
Because the appellant has not satisfied the knowledge element of the
knowledge/timing test with respect to his February 2019 performance evaluation,
we will consider other evidence to determine whether the appellant has made a
nonfrivolous allegation of contributing factor. See Dorney, 117 M.S.P.R. 480,
¶ 15. However, the appellant has presented no evidence or allegations to cast
doubt on the strength of the agency’s reasons for his February 2019 performance
evaluation; he has not even submitted a copy of that evaluation for the record.
Nor is there any indication that Director 2 or Deputy Director 2 were personally
implicated in the appellant’s 2015 disclosures. In fact, there is no evidence that
these two officials had any involvement with FEMA whatsoever until they were
appointed to their new positions years later. Finally, in the absence of any
indication that these officials had knowledge, or were influenced by individuals
with knowledge, of the appellant’s disclosures, there can be no inference of
retaliatory motive on their part. See Geyer v. Department of Justice , 70 M.S.P.R.
682, 693 (1996) (observing that disclosures of which a deciding official has
neither knowledge nor constructive knowledge cannot contribute toward any
retaliatory motive on his part), aff’d per curiam , 116 F.3d 1497 (Fed. Cir. 1997)
(Table). For these reasons, we find that the appellant has made a nonfrivolous
allegation that his 2015 disclosures were a contributing factor in all the personnel
actions at issue except for his February 2019 performance evaluation.16
We now turn to the contributing factor element with respect to the
appellant’s July 26, 2016 complaint to FEMA’s Office of Fraud and
Investigations. The appellant alleges that the Associate Administrator was aware
of this disclosure because the IG interviewed her about it later that year. IAF,
Tab 5 at 6. The administrative judge, however, found that the appellant failed to
make a nonfrivolous allegation of contributing factor with respect to this
personnel action. ID at 9-10. Specifically, she found a lack of any evidence as to
what information the Associate Administrator may have communicated to any
manager responsible for taking a covered personnel action against the appellant.
ID at 9.
As an initial matter, we find that the appellant has made a nonfrivolous
allegation of contributing factor with respect to his significant change in duties,
responsibilities, and working conditions to the extent that the Associate
Administrator herself contributed to these by denying the appellant’s travel
requests. IAF, Tab 1 at 7-8. Furthermore, the administrative judge did not
consider whether the appellant might have made a nonfrivolous allegation of
contributing factor with respect to the Directors and Deputy Directors even absent
a nonfrivolous allegation that they had knowledge of his July 26, 2016 disclosure.
In this regard, we find little reason to doubt the agency’s reasons for the actions it
took. Neither the PIP notice nor the performance evaluations are contained in the
record, and it is otherwise impossible for us to ascertain the agency’s reasons for
these actions. The letter of reprimand is contained in the record, but having
reviewed it, we do not detect any impropriety. IAF, Tab 5 at 163-66. Deputy
Director 1 quoted back to the appellant excerpts from several recent emails that
the appellant had sent, characterizing them as “sarcastic, unprofessional, and
inappropriate.” Id. at 163-64. The appellant seems to contend that it was not
inappropriate for him to call his supervisor “tone deaf,” but even if we were to
agree with the appellant (which we do not), he has not addressed the other seven17
email excerpts underlying the reprimand, which appears to be generally
well-founded on its face. IAF, Tab 5 at 8, 163-64.
As to the significant changes in duties, responsibilities, and working
conditions, there is some reason to question the agency’s sudden curtailment of
the appellant’s travel. In particular, the appellant asserts that the agency justified
its denial of one travel request by calling the denial a reasonable accommodation.
IAF, Tab 5 at 7-8, 10. However, the agency’s stated reasons for its various other
actions, such as removing the appellant’s budgeting duties and reorganizing the
Technological Hazards Division, are absent from the record. Without even
knowing what the agency’s stated reasons for these actions were, we cannot draw
an inference that the reasons might have been pretextual.9 Nevertheless, other
evidence weighs in favor of finding contributing factor. Specifically, both
Director 1 and Deputy Director 1 were directly implicated in the appellant’s
July 26, 2016 disclosure. The appellant named them and criticized them harshly
for misrepresenting the truth and “playing active and complicit roles in covering
up” the matters he was reporting. Id. at 38, 44-46. The lack of any evidence or
specific allegation that these officials knew about this disclosure prevents us from
inferring retaliatory motive, but we note that the agency informed the appellant of
its first personnel action, the impending PIP, in the fall of 2016, right around the
time that the IG allegedly interviewed the Associate Administrator. IAF, Tab 5 at
6, 8. Resolving any doubts about this matter in the appellant’s favor, we find that
the circumstantial evidence is sufficient to raise an inference that the appellant’s
July 26, 2016 disclosure was a contributing factor in the alleged significant
changes in duties, responsibilities, and working conditions, the PIP, the letter of
9 Nothing in this order should be taken as a finding relevant to “the strength of the
agency’s evidence in support of its action” for purposes of assessing the agency’s
affirmative defense under Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999). Not only might some additional evidence on this matter come to light
as the appeal progresses, but the burden on the affirmative defense lies with the agency
rather than the appellant. 5 U.S.C. § 1221(e)(2); Siler v. Environmental Protection
Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018); 5 C.F.R. § 1209.7(b). 18
reprimand, and the February 2018 performance evaluation. However, because
neither Director 2 nor Deputy Director 2 were directly implicated in this
disclosure, and the personnel action that they took was relatively remote in time,
we do not find a nonfrivolous allegation of contributing factor with respect to the
February 2019 performance evaluation.
This appeal is remanded for adjudication of the merits.
Because the appellant proved that he exhausted his administrative remedies
as set forth above, and made nonfrivolous allegations that he made protected
disclosures that were a contributing factor in several personnel actions, he has
established jurisdiction over his appeal and is entitled to the merits hearing that
he requested. IAF, Tab 1 at 2; see Herman v. Department of Justice ,
115 M.S.P.R. 386, ¶¶ 6-8 (2011). On remand, the administrative judge shall
afford the appellant an opportunity to prove by preponderant evidence that his
2015 disclosures and July 26, 2016 disclosures were a contributing factor in the
PIP, the letter of reprimand, the February 2018 performance evaluation, and a
significant change in duties, responsibilities, and working conditions. See
Runstrom v. Department of Veterans Affairs , 123 M.S.P.R. 169, ¶ 12 (2016). If
the administrative judge finds that the appellant proved his case in chief, she must
determine whether the agency has proved by clear and convincing evidence that it
would have taken these same personnel actions even in the absence of the
appellant’s disclosures. See id.19
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20 | Jenkins_Duane_E_DC-1221-20-0415-W-1_Remand_Order.pdf | 2024-07-02 | DUANE E. JENKINS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-20-0415-W-1, July 2, 2024 | DC-1221-20-0415-W-1 | NP |
1,087 | https://www.mspb.gov/decisions/nonprecedential/Munoz_TracyDE-1221-20-0106-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY MUNOZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DE-1221-20-0106-W-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracy Munoz , Phoenix, Arizona, pro se.
Carolyn Jones , Williston, Vermont, for the agency.
John B. Barkley , Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
2 The appellant submits numerous documents on review. Petition for Review (PFR)
File, Tab 1. Many of the documents that the appellant provides on review were part of
the record before the administrative judge; thus, they do not constitute new evidence.
See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (explaining that
evidence that is already a part of the record is not new). Moreover, none of the
documents contain information material to the outcome of the jurisdictional issue. See
Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (explaining that the
Board generally will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that of the
initial decision).
In its response, the agency asserts that many of the documents that the appellant
provides on review contain personally identifiable information (PII), to include law
enforcement information. PFR File, Tab 5 at 4. Accordingly, on May 5, 2020, the
Acting Clerk of the Board issued an order sealing the petition for review. PFR File,
Tab 6 at 1-2. Insofar as many of the documents that the appellant provided with her
initial appeal form also contained PII, we hereby sua sponte seal Tab 1 of the initial
appeal file.2
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).3
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
3 Although not addressed by either party, the appellant’s filings suggest that she elected
to file a grievance regarding her performance appraisal through a negotiated grievance
procedure prior to filing her complaint with the Office of Special Counsel (OSC).
Initial Appeal File, Tab 1 at 4, 7-9, 54. An individual who is covered by a collective
bargaining agreement and who believes that she has suffered reprisal for making
protected disclosures may elect not more than one of three remedies: (1) an appeal to
the Board under 5 U.S.C. § 7701; (2) a grievance filed pursuant to the provisions of the
negotiated grievance procedure; or (3) the procedures for seeking corrective action from
OSC. 5 U.S.C. § 7121(g). Thus, the Board may also lack jurisdiction over the subject
personnel action on this basis. See Sherman v. Department of Homeland Security ,
122 M.S.P.R. 644, ¶¶ 12-13 (2015) (concluding that, under 5 U.S.C. § 7121(g), the
appellant’s timely filing of a grievance of his performance evaluation through a
negotiated grievance procedure prior to filing an OSC complaint foreclosed the Board’s
jurisdiction over that personnel action). However, because we find that the appellant
failed to show by preponderant evidence that she exhausted her remedies before OSC
and failed to make a nonfrivolous allegation that her protected disclosure was a
contributing factor in the agency’s personnel action, we need not decide this issue.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Munoz_TracyDE-1221-20-0106-W-1__Final_Order.pdf | 2024-07-02 | TRACY MUNOZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-1221-20-0106-W-1, July 2, 2024 | DE-1221-20-0106-W-1 | NP |
1,088 | https://www.mspb.gov/decisions/nonprecedential/Cortese_Anthony_CH-0752-19-0308-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY CORTESE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CH-0752-19-0308-I-1
DATE: July 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.
Derek Kollars , Seattle, Washington, for the agency.
Amanda M. D’Angelo , Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for misconduct. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 On petition for review, the appellant’s chief dispute is with the administrative judge’s
penalty analysis. He contends that the administrative judge took an overly restrictive
approach to the comparator evidence, which the appellant says shows that the agency
declined to remove other individuals who engaged in misconduct at least as serious as
the misconduct at issue here. Petition for Review File, Tab 3 at 27-30. However, the
Board’s penalty analysis should not include an attempt to weigh the relative seriousness
of offenses to determine whether two employees who committed different acts of
misconduct were treated differently. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 17.
Rather, the Board’s analysis will be limited to comparison with penalties imposed upon
other employees for the same or similar offenses. Because none of the appellant’s
proffered comparators were charged with lack of candor or anything like it, we agree
with the administrative judge that there is no basis to conclude that consistency of the
penalty is a mitigating factor in this appeal.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Cortese_Anthony_CH-0752-19-0308-I-1__Final_Order.pdf | 2024-07-02 | ANTHONY CORTESE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CH-0752-19-0308-I-1, July 2, 2024 | CH-0752-19-0308-I-1 | NP |
1,089 | https://www.mspb.gov/decisions/nonprecedential/Kornegay_Karla_M_DC-4324-20-0454-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARLA M. KORNEGAY,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-4324-20-0454-I-1
DATE: July 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Karla M. Kornegay , Waldorf, Maryland, pro se.
Heather Herbert , Esquire, and Jack W. Rickert , Esquire, Springfield,
Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal from her placement in an absent
without leave (AWOL) status. For the reasons discussed below, we GRANT the
appellant’s petition for review. We AFFIRM the administrative judge’s decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
to dismiss the appellant’s Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA) claim for lack of jurisdiction. We MODIFY the
initial decision to find that the Board also lacks jurisdiction over any claims
brought by the appellant under the Whistleblower Protection Act (WPA). We
REMAND the case to the Washington Regional Office for further adjudication of
the appellant’s potential claims under 5 U.S.C. chapter 75 and the Veterans
Employment Opportunities Act of 1998 (VEOA), in accordance with this Remand
Order.
BACKGROUND
The appellant is a preference-eligible veteran who was appointed to an
excepted-service position with the agency’s National Geospatial-Intelligence
Agency (NGA) on April 28, 2019. Initial Appeal File (IAF), Tab 1 at 1, 5, 9. On
March 10, 2020, the appellant informed the agency that she would be unable to
report for work because of her own ongoing health issues and the cancelation of
classes at the university her daughter was attending “due to the Coronavirus
issue.” Id. at 7, 10, 13-16. She requested that she be placed in a leave without
pay (LWOP) status. Id. at 13-16. In its response, the agency indicated that the
appellant would be placed in an AWOL status beginning on March 11, 2020. Id.
at 14.
This appeal followed on March 12, 2020. IAF, Tab 1. Although the
appellant did not identify the nature of the action she was appealing, she provided
evidence reflecting the above facts and made references to USERRA. Id.
The administrative judge informed the appellant of her burden of
establishing the Board’s jurisdiction under USERRA and ordered her to file a
statement on jurisdiction. IAF, Tab 3. The appellant argued that the agency
violated USERRA and other laws when it refused to grant her LWOP for medical2
treatment and recuperation, and refused to reinstate her after she recovered
sufficiently to return to work.2 IAF, Tab 9 at 3.
In his initial decision, the administrative judge dismissed the appeal for
lack of jurisdiction. IAF, Tab 29, Initial Decision (ID) at 5-8. He found that the
Board has no authority to consider a USERRA complaint filed against the NGA
and that, in any event, the appellant’s assertions of USERRA violations were too
vague to support a finding that she was entitled to relief or protection under
USERRA. ID at 5-7. He alternatively determined that the appellant failed to
respond to his jurisdictional order to indicate whether she elected to file a
USERRA complaint with the Department of Labor (DOL) and exhausted any such
claim. ID at 7. He concluded that, absent an otherwise appealable action, the
Board has no jurisdiction to consider the appellant’s allegations that the agency
violated her rights under Executive Order (EO) 5396, discriminated against her in
violation of Title VII, or retaliated against her for her equal employment
opportunity activity. ID at 7 n.5.
The appellant has filed a petition for review, reiterating that she was placed
in an AWOL status after requesting LWOP, and averring that the administrative
judge should have considered whether she was protected by other laws and
authorities in addition to USERRA. Petition for Review (PFR) File, Tab 1. The
agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly determined that the Board lacks jurisdiction
over the appellant’s USERRA claim.
The Board’s jurisdiction over USERRA cases is based on 38 U.S.C.
§ 4324(b) and (c). Erlendson v. Department of Justice , 121 M.S.P.R. 441, ¶ 5
(2014). Section 4324(b) provides, in relevant part, that “[a] person may submit a
[USERRA] complaint against a Federal executive agency . . . directly to the Merit
2 Other than the appellant’s assertion that the agency has refused to “reinstate” her, the
record does not reflect whether the appellant remains in a leave status, has since
returned to work, or has separated from the agency.3
Systems Protection Board” provided that she did not first file a USERRA
complaint with the Secretary of Labor. 38 U.S.C. § 4324(b)(1); Erlendson,
121 M.S.P.R. 441, ¶ 5. For purposes of the statute, the term “Federal executive
agency” is defined, in relevant part, as “any Executive agency (as that term is
defined in section 105 of title 5) other than an agency referred to in § 2302(a)(2)
(C)(ii) of title 5.” 38 U.S.C. § 4303(5); see 5 C.F.R. § 353.102(2) (similarly
defining the term “executive agency” for purposes of the Office of Personnel
Management’s regulations implementing USERRA provisions concerning
restoration rights). The NGA is among the agencies specifically listed in
5 U.S.C. § 2302(a)(2)(C)(ii), and is thus excluded from the definition of “Federal
executive agency” for purposes of filing a USERRA appeal with the Board under
38 U.S.C. § 4324(b) and (c). Accordingly, the Board lacks jurisdiction to hear a
USERRA complaint brought against the NGA. See Erlendson, 121 M.S.P.R. 441,
¶ 6 (finding that the Board lacks jurisdiction to hear a USERRA complaint
brought against the Federal Bureau of Investigation, another agency listed in
subsection 2302(a)(2)(C)(ii)).
On review, the appellant reasserts USERRA as a possible basis for Board
jurisdiction over her appeal, but she does not specifically contest the
administrative judge’s analysis.3 PFR File, Tab 1 at 10. For the reasons stated
above, we affirm the administrative judge’s finding.
Additionally, in a USERRA appeal, if an appellant first files a USERRA
complaint with the Secretary of Labor under 38 U.S.C. 4322(a), she may not file
a USERRA appeal with the Board until the Secretary notifies the appellant that he
was unable to resolve the complaint. Gossage v. Department of Labor ,
118 M.S.P.R. 455, ¶ 8 (2012). The Board does not acquire jurisdiction over an
3 On review, the appellant also refers to the Vietnam Era Veterans’ Readjustment
Assistance Act of 1974 (VEVRAA). PFR File, Tab 1 at 5. The Board has the authority
to decide a claim for a violation of VEVRAA, which is the predecessor statute to
USERRA, based on events that pre-date USERRA’s enactment. Wible v. Department of
the Army, 120 M.S.P.R. 333, ¶ 12 (2013 ). Because the relevant events of this appeal
post-date USERRA’s enactment, VEVRAA is inapplicable. 4
appellant’s USERRA claim until the appellant receives the required notification
from the Secretary. 38 U.S.C. §§ 4322(e), 4324(b)(2); Gossage, 118 M.S.P.R.
455, ¶ 8. An appellant must prove exhaustion of this administrative remedy, if
she elects to pursue it, by preponderant evidence. 5 C.F.R. § 1201.57(a)(3), (c)
(1) (providing that, when exhaustion is preliminary to a Board appeal, an
appellant has the burden of proving exhaustion by preponderant evidence). The
administrative judge found that, because the appellant failed to comply with his
order to state whether she had filed a USERRA complaint with DOL, he was
“unable to determine whether the Board might be precluded from considering her
USERRA claim at this time and her appeal must also be dismissed on this basis.”
ID at 7; IAF, Tab 3 at 4-5, 7. On review, the appellant states that she did not
“reference anything from the [administrative judge] regarding addressing
USERRA related issues to [DOL].” PFR File, Tab 1 at 14. Given the vagueness
of the appellant’s statement on review, and the lack of any other indication of
whether she filed a USERRA complaint with DOL, we affirm the administrative
judge’s finding on this issue.
We supplement the initial decision to address the appellant’s potential claims
under the WPA and other authorities.
The Board lacks jurisdiction over this appeal under the WPA.
Below and on review, the appellant asserted that the agency’s Deputy
Inspector General failed to assist her after she raised concerns about her situation.
IAF, Tab 18 at 10; PFR File, Tab 1 at 14. To the extent that the appellant was
attempting to assert Board jurisdiction over an individual right of action (IRA)
appeal under the WPA, the administrative judge did not address her claim. See
Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir.
1985) (holding that an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue).
Nevertheless, even assuming that the administrative judge should have
notified the appellant of her jurisdictional burden in an IRA appeal, we find that5
the appellant’s substantive rights were not prejudiced. See Karapinka v.
Department of Energy , 6 M.S.P.R. 124, 127 (1981). The record clearly shows
that the Board would lack jurisdiction over such a claim. See Hudson v. Office of
Personnel Management , 114 M.S.P.R. 669, ¶ 11 (2010). Specifically, for
purposes of an IRA appeal, an appealable “personnel action” is limited to certain
actions taken “with respect to an employee in . . . a covered position in an
agency.” 5 U.S.C. § 2302(a)(2). The NGA is specifically excluded from the term
“agency” as it is used in that section, and for that reason, the Board would lack
jurisdiction over any IRA appeal filed by the appellant.4 5 U.S.C. § 2302(a)(2)
(C)(ii); see Matthews v. U.S. Postal Service , 93 M.S.P.R. 109, ¶ 13 (2002)
(holding that Postal Service employees may not file IRA appeals because they are
excluded from coverage under 5 U.S.C. § 2302(a)(2)(C)).
The Family and Medical Leave Act of 1993, among other authorities
referenced by the appellant, is not an independent source of
jurisdiction.
On review, the appellant references numerous laws and other authorities—
including laws and authorities concerning the Family and Medical Leave Act of
1993 (FMLA) and disability discrimination—and argues that the administrative
judge should have considered such laws and authorities in adjudicating her
appeal. PFR File, Tab 1 at 4-14. However, we agree with the administrative
judge that the appellant’s disability discrimination claim does not provide an
independent basis of Board jurisdiction. ID at 7 n.5; see Penna v. U.S. Postal
Service, 118 M.S.P.R. 355, ¶ 13 (2012). Likewise, the Board lacks jurisdiction to
adjudicate FMLA disputes absent an otherwise appealable action. See 5 C.F.R.
§§ 1201.1-1201.3 (identifying the subject matters over which the Board has
4 We do not reach the issue of whether the appellant would be able to raise
whistleblower reprisal as an affirmative defense in a chapter 75 appeal. See generally
Mack v. U.S. Postal Service , 48 M.S.P.R. 617, 620-21 (1991 ) (finding that an employee
of the Postal Service, which is not an agency under 5 U.S.C. § 2302(a)(2)(C), may raise
a claim of whistleblower reprisal as an affirmative defense to an otherwise appealable
action).6
jurisdiction); see also Lua v. U.S. Postal Service , 87 M.S.P.R. 647, ¶ 12 (2001)
(determining that no further action was required on an appellant’s FMLA claim
because the Board lacked jurisdiction over the underlying alleged disciplinary
actions).
We remand this appeal for further adjudication of the appellant’s potential
Veterans Employment Opportunities Act of 1998 and chapter 75 claims.
Veterans Employment Opportunities Act of 1998.
In her initial appeal file, the appellant indicated that she is entitled to
veterans’ preference. IAF, Tab 1 at 1. In another pleading below, she also stated
that she is “covered under,” inter alia, the Veterans’ Preference Act of 1944
(VPA). IAF, Tab 18 at 5. On review, the appellant again invokes the VPA,
arguing that the administrative judge should have also adjudicated her appeal
under this law, among other authorities. PFR File, Tab 1 at 4. The administrative
judge did not address the appellant’s claims regarding veterans’ preference.
The Board has jurisdiction over veterans’ preference claims, including
those arising under the VPA, to the extent allowed for under VEOA. See
Burroughs v. Department of the Army , 116 M.S.P.R. 292, ¶ 11-12 (2011)
(explaining that the VPA does not itself vest jurisdiction with the Board; rather,
the Board’s authority to adjudicate veterans’ preference claims in general arises
from VEOA). To establish Board jurisdiction over a veterans’ preference appeal
brought under VEOA, an appellant must (1) show that she exhausted her remedy
with DOL; and (2) make nonfrivolous allegations that (i) she is a preference
eligible within the meaning of the VEOA, and (ii) the agency violated her rights
under a statute or regulation relating to veterans’ preference.5 5 U.S.C. § 3330a;
Davis v. Department of Defense , 2022 MSPB 20, ¶ 5. A VEOA claim should be
5 The appellant alleges that the agency violated EO 5396. PFR File, Tab 1 at 4.
EO 5396 entitles disabled veterans in the executive branch to annual leave, sick leave,
or LWOP to obtain necessary medical treatment, provided that the employee gives prior
notice and provides appropriate medical documentation. Davison v. Department of
Veterans Affairs, 115 M.S.P.R. 640, ¶ 8 (2011 ). We express no opinion at this time as
to whether violation of EO 5396 is a basis for relief under VEOA. 7
liberally construed and an allegation, in general terms, that an appellant’s
veterans’ preference rights were violated is sufficient to meet the requirement of a
nonfrivolous allegation establishing Board jurisdiction. Loggins v. U.S. Postal
Service, 112 M.S.P.R. 471, ¶ 14 (2009).
Because the appellant indicated an entitlement to veterans’ preference and
invoked the VPA, we conclude that she was entitled to notice of how to establish
the Board’s jurisdiction under VEOA. We therefore remand the appeal for
adjudication of this issue. See id., ¶ 15 (remanding an appeal when an appellant
claimed she was preference eligible, alleged that the agency violated veterans’
preference laws, and completed the VEOA section of her appeal form). On
remand, the administrative judge must provide the appellant with appropriate
jurisdictional notice regarding her potential VEOA claim and the opportunity to
submit evidence and argument to establish the Board’s jurisdiction under VEOA.
Chapter 75.
Below and on review, the appellant asserted that she was improperly placed
in an AWOL status. IAF, Tab 18 at 5; PFR File, Tab 1 at 4. She also averred
below that the agency refused to “reinstate” her after she “recovered sufficiently
to return to work.” IAF, Tab 9 at 3. Accordingly, it appears she may have
intended to allege that she was subjected to an adverse action within the Board’s
chapter 75 jurisdiction, such as a removal or a suspension or constructive
suspension of more than 14 days. See, e.g., Abbott v. U.S. Postal Service ,
121 M.S.P.R. 294, ¶¶ 6, 10 (2014) (providing that an agency’s placement of an
employee on leave against her will for more than 14 days constitutes an
appealable suspension); see also Bean v. U.S. Postal Service , 120 M.S.P.R. 397,
¶¶ 8, 11 (2013) (observing that when an employee is forced to absent himself
because of his agency’s wrongful actions, his absence may be appealable as a
constructive suspension).
We observe that neither the administrative judge nor the agency apprised
the appellant of how to establish the Board’s jurisdiction under 5 U.S.C.8
chapter 75. See Burgess, 758 F.2d at 643-44. The record reflects that the Board
likely lacks jurisdiction over any such claims. Generally, employees of the NGA
do not have chapter 75 appeal rights. Clarke v. Department of Defense ,
102 M.S.P.R. 559, ¶ 9 (2006); see 5 U.S.C. § 7511(b)(8); 10 U.S.C. § 1614(2)(C).
An exception exists for NGA employees who had adverse action appeal rights
under chapter 75 with the NGA’s predecessor agencies, the Defense Mapping
Agency and National Imagery and Mapping Agency, prior to October 1996, and
have continued to serve in the same position since then without a break in service.
10 U.S.C. § 1612(b); Clarke, 102 M.S.P.R. 559, ¶¶ 4, 9-10; see Department of
Defense Civilian Intelligence Personnel Policy Act of 1996, Pub. L. No. 104-201,
tit. XVI, subtit. B, §§ 1632, 1635, 110 Stat. 2422, 2750, 2752 (reflecting that the
relevant provision preserving the appeal rights of these employees, 10 U.S.C.
§ 1612(b), was effective October 1, 1996).
Because the appellant served in active duty in the U.S. Air Force from 1994
to 2006, and was appointed to her current position in April 2019, it appears
unlikely she has been an employee with the agency continuously since prior to
1996. IAF, Tab 1 at 8-9. Nonetheless, on remand, the administrative judge
should provide the appellant with an opportunity to make nonfrivolous allegations
that she has been continuously employed by the NGA and its predecessors since
prior to October 1, 1996, and as to the remaining jurisdictional elements of a
chapter 75 appeal. If the appellant does so, she is entitled to her requested
hearing, at which she must prove jurisdiction by preponderant evidence. IAF,
Tab 1 at 2; see Thomas v. Department of the Navy , 123 M.S.P.R. 628, ¶ 11 (2016)
(observing that, in a constructive adverse action appeal, if an appellant makes a
nonfrivolous allegation of fact establishing Board jurisdiction, she is entitled to a
hearing at which she must prove jurisdiction by preponderant evidence).9
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Kornegay_Karla_M_DC-4324-20-0454-I-1__Remand_Order.pdf | 2024-07-02 | KARLA M. KORNEGAY v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-4324-20-0454-I-1, July 2, 2024 | DC-4324-20-0454-I-1 | NP |
1,090 | https://www.mspb.gov/decisions/nonprecedential/Schoo_JulieDC-0752-21-0001-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIE SCHOO,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-0752-21-0001-I-1
DATE: July 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Anthony Bullock , Esquire, Atlanta, Georgia, for the appellant.
Bradly Siskind , Esquire, Riverdale, Maryland, for the agency.
Lori A. Ittner , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant retired from her Program Assistant position effective
August 31, 2020. Initial Appeal File (IAF), Tab 1 at 6, Tab 7 at 20, 23. She filed
a Board appeal alleging that her retirement was involuntary due to coercion based
on her employing agency denying her request for a reasonable accommodation
and threatening adverse action.2 IAF, Tab 1 at 5-6. She requested a hearing. Id.
at 2. The administrative judge found that the appellant failed to nonfrivolously
allege that her retirement was involuntary. IAF, Tab 10, Initial Decision (ID)
at 8-9. Without holding her requested hearing, the administrative judge held that
the appellant’s position required travel as an essential element and function of her
position and that the agency was not required to accommodate her by exempting
her from travel. Id. The appellant has effectively argued that travel was not an
essential element of her position and that she had no choice but to retire because
the agency denied her request to accommodate her health problems. IAF, Tab 6
at 5-6; Petition for Review (PFR) File, Tab 1 at 4-6.
An employee-initiated action, such as a retirement, is presumed to be
voluntary and thus outside the Board’s jurisdiction. Carey v. Department of
Health & Human Services , 112 M.S.P.R. 106, ¶ 5 (2009). An involuntary
retirement resulting from an agency’s improper actions, however, is equivalent to
a forced removal and therefore within the Board’s jurisdiction. Id. To overcome
the presumption that a retirement is voluntary, an employee must show that it was
the result of the agency’s misinformation or deception or was coerced by the
agency. Id. To establish involuntariness on the basis of coercion, the appellant
must establish that the agency imposed the terms of the retirement, the appellant
2 Although the appellant filed an application for disability retirement, she appears to
have withdrawn that application prior to the effective date of her retirement. IAF,
Tab 8 at 20. 2
had no realistic alternative but to retire, and the retirement was the result of
improper actions by the agency. Id. If the employee claims that her retirement
was coerced by the agency’s creating intolerable working conditions, she must
show that a reasonable employee in her position would have found the working
conditions so oppressive that she would have felt compelled to retire. Id.
Ultimately, all constructive adverse action claims have the following in common:
(1) the employee lacked a meaningful choice in the matter; and (2) it was the
agency’s wrongful actions that deprived the employee of that choice. Bean v.
U.S. Postal Service , 120 M.S.P.R. 397, ¶¶ 8, 11 (2013). When an appellant raises
an allegation of discrimination in connection with a claim of involuntariness, the
allegation may be addressed only insofar as it related to the issue of jurisdiction
and not whether it would establish discrimination as an affirmative defense.
Carey, 112 M.S.P.R. 106, ¶ 5.
The appellant has the burden of proving the Board’s jurisdiction by a
preponderance of the evidence.3 Id.; 5 C.F.R. § 1201.56(b)(2)(i)(A). However,
once the appellant presents nonfrivolous allegations of Board jurisdiction, she is
entitled to a hearing at which she must prove jurisdiction by a preponderance of
the evidence.4 Carey, 112 M.S.P.R. 106, ¶ 6. In assessing whether an appellant
has made nonfrivolous allegations entitling her to a hearing, an administrative
judge may not weigh evidence and resolve conflicting assertions, and the
agency’s evidence may not be dispositive. Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325, 329 (1994).
The agency here concluded that the appellant submitted sufficient medical
documentation to determine that she has a qualifying disability and was therefore
3 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation is generally nonfrivolous when it is more
than conclusory, is plausible on its face, and is material to the legal issues in the appeal.
Id. 3
eligible for a reasonable accommodation. IAF, Tab 8 at 26. It further concluded
that traveling was among the limitations requiring reasonable accommodation.
Id. The agency nonetheless denied her request to be exempt from travel, finding
that it was an essential element of her job.5 IAF, Tab 7 at 35, Tab 8 at 21. The
appellant appealed this decision, and the agency subsequently affirmed. IAF,
Tab 7 at 32-34. The agency informed her that she could either return to full duty
without the travel exemption or resign, and if she chose neither, the agency might
propose disciplinary action to remove her. Id. at 33. The appellant submitted her
application for retirement 2 days later. Id. at 23-25.
She asserted before the Board that the agency previously accommodated
her request for a travel exemption, which allowed her to complete her duties.
IAF, Tab 6 at 5-6. She additionally claimed that she had no desire to retire but
that her physicians recommended she work from home as much as possible and
avoid traveling. Id. Thus, she alleged that her retirement was induced by the
agency’s refusal to accommodate her disability and the threat of removal. Id.
The Board has held that an appellant’s allegation that her retirement was
involuntary because the agency denied her request for an accommodation that,
according to her doctors, would have permitted her to continue to work despite
her medical conditions suffices as a nonfrivolous allegation of the Board’s
jurisdiction. Carey, 112 M.S.P.R. 106, ¶ 7. Accordingly, under the particular
circumstances of this case, we find that the appellant has made a nonfrivolous
allegation of the Board’s jurisdiction. See id.; see also Garcia v. Department of
Homeland Security , 437 F.3d 1322, 1324, 1326, 1344-45 (Fed. Cir. 2006) (en
banc) (holding that the agency’s failure to renovate the appellant’s workspace to
accommodate her medical condition may have forced her to accept a demotion).
In finding that the appellant failed to nonfrivolously allege jurisdiction, the
administrative judge held that her position required her to travel and provide
5 Although it denied the appellant’s request to be exempt from travel, the agency
granted her request to telework 4 days a week. IAF, Tab 7 at 35. 4
program support for the staff in both the Raleigh, North Carolina and Riverdale,
Maryland locations. ID at 2, 8. The appellant disputes this assertion. IAF, Tab 6
at 5-6; PFR File, Tab 1 at 4-6. In reaching her conclusion, the administrative
judge cited to the appellant’s position description and performance plan, as
submitted by the agency, neither of which explicitly states that travel to the two
locations is an essential element of the position. ID at 2, 8; IAF, Tab 8 at 4-7,
Tab 9 at 4-11. The administrative judge’s conclusion and reliance on the
agency’s assertions was erroneous, as an administrative judge may not weigh
evidence or resolve conflicting assertions regarding disputed facts material to the
question of jurisdiction without affording the appellant the opportunity for a
hearing. See Carey, 112 M.S.P.R. 106, ¶ 8; Ferdon, 60 M.S.P.R. at 329-30 .
ORDER
For the reasons discussed above, we vacate the initial decision and remand
this case to the Washington Regional Office for a hearing on the issue of whether
the appellant’s retirement was the result of coercion based on intolerable working
conditions and therefore a constructive removal within the Board’s jurisdiction.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Schoo_JulieDC-0752-21-0001-I-1__Remand_Order.pdf | 2024-07-02 | JULIE SCHOO v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-21-0001-I-1, July 2, 2024 | DC-0752-21-0001-I-1 | NP |
1,091 | https://www.mspb.gov/decisions/nonprecedential/Blake_Thomas_N_PH-315H-19-0291-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS NATHANIEL BLAKE, SR,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
PH-315H-19-0291-I-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas Nathaniel Blake, Sr. , Indian Head, Maryland, pro se.
Dora Malykin , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On December 9, 2018, the appellant received a term appointment in the
competitive service, not to exceed December 8, 2019, to a GS-12 Auditor
position. Initial Appeal File (IAF), Tab 1 at 7. This appointment was subject to a
1-year probationary period. Id. at 6-7. Effective April 26, 2019, before the end
of his probationary period, the agency terminated the appellant based on
post-appointment conduct-related issues. IAF, Tab 4 at 8-11. The appellant filed
this appeal of his termination to the Board, requesting a hearing. IAF, Tab 1.
The administrative judge issued an acknowledgment order, informing the
appellant that the Board may not have jurisdiction over his appeal and advising
him of his jurisdictional burden. IAF, Tab 2 at 2-5. The administrative judge
advised the appellant that he was entitled to the hearing that he requested if he
made a nonfrivolous allegation that he was an “employee” within the meaning of
chapter 75 or that his termination was based on partisan political reasons or
marital status. Id. The appellant did not respond. The agency filed a motion to
dismiss. IAF, Tab 4 at 4-5.2
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID) at 1, 4. He observed
that the appellant did not argue that his termination was based on partisan
political reasons or marital status. ID at 3-4. He found that, as a probationary
employee, the appellant has neither a statutory nor a regulatory right of appeal to
the Board. ID at 4.
In his petition for review, the appellant asserts that he did not respond to
the jurisdictional order and motion to dismiss because he was unable to access the
Board’s e-Appeal system. Petition for Review (PFR) File, Tab 2 at 1. He argues
that he was discriminated against because he was unmarried, African American,
and male, and retaliated against for equal employment opportunity (EEO) activity
and based on a short-term medical condition. Id. at 2-4. He also argues the
merits of his termination. Id. at 2-3.2 The agency has responded to the
appellant’s petition, PFR File, Tab 4, and the appellant has replied to the
response, PFR File, Tab 6.
ANALYSIS
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule or regulation. Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden of proving
Board jurisdiction by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). A
probationary employee in the competitive service who has not completed 1 year
of current continuous service has no statutory right of appeal to the Board. See
2 The appellant attaches a number of documents to his petition for review, including
copies of many certificates of completion for courses related to his position, PFR File,
Tab 2 at 6-30, a copy of the agency’s desk review program, id. at 31-35, medical
evidence including evidence that he was under a doctor’s care from March 14, 2019,
through April 9, 2019, id. at 36-39, his performance evaluation and performance
standards, id. at 40-53, a designation of his tour of duty, id. at 54, an e-mail denying an
allegation that he was sleeping on duty, id. at 55-56, and his résumé, id. at 57-62. As
explained below, none of these submissions are relevant to the dispositive issue of the
Board’s jurisdiction over this appeal. 3
5 U.S.C. § 7511(a)(1)(A); Marynowski v. Department of the Navy , 118 M.S.P.R.
321, ¶ 4 (2012). However, a probationary employee in the competitive service
may appeal a termination if he alleges that it was based on partisan political
reasons or marital status. Id.; 5 C.F.R. § 315.806(b).
The appellant’s assertion for the first time on review that he was
discriminated against because he is unmarried appears to be an assertion that he
was discriminated against based on his marital status. PFR File, Tab 1 at 2. We
have considered this argument even though it was not raised below because it
implicates the Board’s jurisdiction, an issue that is always before the Board and
may be raised by any party or sua sponte by the Board at any time during a Board
proceeding. See Lovoy v. Department of Health and Human Services ,
94 M.S.P.R. 571, ¶ 30 (2003).
In determining whether an appellant has established jurisdiction under
5 C.F.R. § 315.806(b) because of marital status discrimination, the Board follows
a two-step process. Marynowski. 118 M.S.P.R. 321, ¶ 5. First, the appellant must
make nonfrivolous claims of jurisdiction, i.e., factual allegations that, if proven,
would establish that his termination was based on marital status. Id. An
appellant who makes such nonfrivolous claims is entitled to a jurisdictional
hearing at which he must then prove the basis for jurisdiction, i.e., that his
termination was based on marital status, by a preponderance of the evidence. Id.
The appellant has failed to establish step one in that process. To make a
nonfrivolous allegation of marital status discrimination, an appellant must allege
facts which, taken as true, would show he was treated differently because of his
marital status or facts that go to the essence of his status as married, single, or
divorced. Id. Here, the appellant infers discriminatory intent from his status as
“the sole male, black, single auditor in a primary white, female, married
personnel group.” PFR File, Tab 2 at 2. He does not claim he was terminated
because he was single. Rather, he alleges that because he was, as relevant here,
single, he was “terminated . . . without notice (oral or written) or cause.” Id.4
Thus, he alleges no facts that, if true, would suggest his termination resulted from
his unmarried status or go to the essence of that status.
To the extent that the appellant’s allegations that he was discriminated
against based on being African American, male, and having a short-term medical
condition constitute allegations of discrimination on the bases of race, sex, and
disability, or reprisal for EEO activity, the allegations provide no basis for
jurisdiction over his appeal absent an otherwise appealable issue. The appellant’s
discrimination and EEO reprisal claims are not an independent source of Board
jurisdiction. Pridgen v. Office of Management and Budget , 117 M.S.P.R. 665,
¶ 7 (2012). Finally, to the extent that the appellant is arguing that the agency’s
termination action was improper on the merits, the Board is precluded from
reviewing the merits of the agency’s action in the appeal of the termination of a
probationary employee. 5 C.F.R. § 315.806(a).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Blake_Thomas_N_PH-315H-19-0291-I-1__Final_Order.pdf | 2024-07-01 | null | PH-315H-19-0291-I-1 | NP |
1,092 | https://www.mspb.gov/decisions/nonprecedential/Brown_Robin_E_AT-0752-18-0660-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBIN E. BROWN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-18-0660-I-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Christopher D. Brown , Nashville, Tennessee, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The appellant was separated from her dual status military technician
position for failure to maintain membership in the National Guard, as required by
32 U.S.C. § 709(b)(2) and (f)(1)(A), after the Tennessee National Guard denied
her reenlistment. Initial Appeal File (IAF), Tab 4 at 23, 25-26. In an initial
decision, the administrative judge dismissed the appellant’s termination appeal
for lack of jurisdiction. IAF, Tab 17, Initial Decision. The appellant has filed a
petition for review of the initial decision, and the agency has filed a response.
Petition for Review (PFR) File, Tabs 1, 3. After the close of the record on
review, the appellant submitted two motions for leave to file additional evidence
that she claims is new and material. PFR File, Tabs 5, 9. The agency has filed
responses to the appellant’s motions. PFR File, Tabs 7, 11.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden2
of establishing jurisdiction over her appeal by a preponderance of the evidence.
5 C.F.R. § 1201.56(b)(2)(i)(A). On review, the appellant makes the following
arguments in support of her contention that the Board has jurisdiction over her
appeal: (1) there is no evidence in the record that her appeal concerns either
activity occurring while she was in a military pay status or her fitness for duty;
(2) the administrative judge impermissibly expanded the meaning of
“military-unique service requirements” to include requirements other than those
strictly related to physical fitness; and (3) the agency violated her due process
rights. PFR File, Tab 1 at 4-10. For the following reasons, we agree with the
administrative judge that the Board lacks jurisdiction over the appeal.
While this appeal was pending on review, the U.S. Court of Appeals for the
Federal Circuit issued Dyer v. Department of the Air Force , 971 F.3d 1377 (Fed.
Cir. 2020), which governs the outcome in this matter, even though the events in
this matter predate the issuance of the Dyer decision. See Porter v. Department
of Defense, 98 M.S.P.R. 461, ¶¶ 11-14 (2005) (explaining that judicial decisions
are given retroactive effect to all pending cases, whether or not those cases
involve predecision events); see also Fairall v. Veterans Administration ,
33 M.S.P.R. 33, 39 (stating that decisions of the U.S. Court of Appeals for the
Federal Circuit are controlling authority for the Board in adverse action appeals),
aff’d per curiam , 844 F.2d 775 (Fed. Cir. 1987). We briefly discuss the relevant
facts of Dyer here.
Mr. Dyer enlisted in the West Virginia Air National Guard (WVANG), and
he was later appointed in his civilian capacity to a dual status position as a
military technician. Dyer, 971 F.3d at 1378. Pursuant to 32 U.S.C. § 709(b)(2)
and (f)(1)(A), and as a requirement to maintain his dual status position, Mr. Dyer
was required to continue his membership with the WVANG. Dyer, 971 F.3d
at 1378. He was eventually separated from the WVANG, and, on that basis, the
WVANG Adjutant General terminated his dual status employment. Id.
at 1378-79. Mr. Dyer filed a Board appeal, and the administrative judge found3
that the Board had jurisdiction over the appeal and that Mr. Dyer was provided
with due process. Id. at 1379. The initial decision became the Board’s final
decision, and Mr. Dyer petitioned the court for review. Id.
The court found that the Board lacked jurisdiction over Mr. Dyer’s appeal.
Id. at 1379, 1384. In pertinent part, the court noted that, “[t]o be employed as a
dual-status technician, among other requirements, the civilian must be a military
member of the National Guard.” Id. at 1380 (citing 32 U.S.C. § 709(b)(2)). The
court described as “clear” the statutory language in 32 U.S.C. § 709(f)(1)(A),
which states that the Adjutant General must “‘promptly separate[] from military
technician (dual status) employment’ any dual status technician who has been
separated from the National Guard.” Id. (quoting 32 U.S.C. § 709(f)(1)(A)).
Noting that National Guard membership is a “fundamental military-specific
requirement attendant to a dual-status employee’s military service,” and that the
statute does not give the Adjutant General any discretion with respect to the
termination of a dual status employee who has been separated from the National
Guard, the court concluded that Mr. Dyer’s termination from dual status
employment as a result of his separation from the National Guard concerned
fitness for duty in the reserve components. Id. at 1381-84. The court further held
that, pursuant to section 709(f)(4), the termination fell within an exception that
precludes a right of appeal to the Board “ when the appeal concerns . . . fitness for
duty in the reserve components ,” and the Board therefore lacked jurisdiction over
Mr. Dyer’s appeal.2 Id. at 1381, 1384 (quoting 32 U.S.C. § 709(f)(4)) (emphasis
in original).
Similarly, here, the appellant’s termination based on her separation from
the National Guard concerned her fitness for duty in the reserve components.
Pursuant to 32 U.S.C. § 709(f)(4), her only avenue for appeal is with the Adjutant
2 The Office of Personnel Management regulations implementing this statutory language
recognize the exception to Board jurisdiction in 32 U.S.C. § 709(f)(4). 5 C.F.R.
§ 432.102(b)(16), 752.401(b)(17); see Probation on Initial Appointment to a
Competitive Position, 87 Fed. Reg. 67765, 67769, 67779, 67782-83 (Nov. 10, 2022).4
General, and the Board lacks jurisdiction over her appeal. Accordingly, we do
not address any arguments related to due process. See Smith v. Department of
Defense, 106 M.S.P.R. 228, ¶ 13 (2007) (recognizing that the Board has no
jurisdiction to review constitutional claims that are not coupled with an
independently appealable action) (citation omitted).
Finally, we address the appellant’s motions for leave to file additional
evidence. PFR File, Tabs 5, 9. The appellant states that the additional evidence
pertains to the underlying decision by the Tennessee National Guard to deny her
reenlistment. Id. Because the Board lacks jurisdiction over her appeal, it lacks
authority to review arguments concerning the merits of the denial of her
reenlistment. Accordingly, we find that the additional evidence she seeks to
submit is immaterial, and we deny the motions. 5 C.F.R. § 1201.114(a)(5), (k).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Brown_Robin_E_AT-0752-18-0660-I-1__Final_Order.pdf | 2024-07-01 | ROBIN E. BROWN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-18-0660-I-1, July 1, 2024 | AT-0752-18-0660-I-1 | NP |
1,093 | https://www.mspb.gov/decisions/nonprecedential/Ford_NancyDE-1221-20-0154-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NANCY FORD,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-1221-20-0154-W-1
DATE: July 1, 2024
THIS ORDER IS NONPRECEDENTIAL1
Peter C. Rombold , Esquire, Junction City, Kansas, for the appellant.
Eric L. Carter , Fort Riley, Kansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
applied collateral estoppel to dismiss her individual right of action (IRA) appeal
for lack of jurisdiction. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
case to the field office for further adjudication in accordance with this Remand
Order.
BACKGROUND
In July 2017, the agency proposed the appellant’s removal, alleging that
she falsely claimed leave to care for her husband under the Family and Medical
Leave Act of 1993 (FMLA). Ford v. Department of the Army , MSPB Docket
No. DE-1221-20-0154-W-1, Initial Appeal File (IAF), Tab 5 at 4-11. After
considering the appellant’s written and oral replies to the proposal notice, the
agency decided to remove her in September 2017. Id. at 13-16.
On October 3, 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC). Id. at 18-26. In her complaint, she averred that her use
of FMLA leave was proper and that the agency violated the law when it removed
her for using FMLA leave. Id. at 22-24.
In April 2018, the appellant filed a removal appeal with the Board in which
she referenced, and to which she attached, her OSC complaint. Ford v.
Department of the Army , MSPB Docket No. DE-1221-18-0258-W-1, Initial
Appeal File (0258 IAF), Tab 1 at 4-5, 22-30. The field office docketed her appeal
as two appeals, one as an IRA appeal and the other as a chapter 75 appeal, both of
which were dismissed.2 Ford v. Department of the Army , MSPB Docket No. DE-
1221-18-0258-W-1, Initial Decision (0258 ID) (May 25, 2018); Ford v.
Department of the Army , MSPB Docket No. DE-0752-18-0257-I-1, Initial
Decision (0257 ID) (May 25, 2018). The administrative judge issued an initial
decision dismissing the IRA appeal for lack of jurisdiction after the appellant
stated during a conference call that she was not alleging whistleblower reprisal in
2 The appellant filed the same stay request in both appeals, which the field office
separately docketed. Ford v. Department of the Army , MSPB Docket No. DE-0752-18-
0257-S-1, Initial Decision (May 25, 2018) (0257-S-1 ID); Ford v. Department of the
Army, MSPB Docket No. DE-1221-18-0257-I-1, Initial Appeal File, Tab 4 at 7;
0258 IAF, Tab 4 at 7. The administrative judge issued an initial decision denying the
stay request. 0257-S-1 ID. Neither party filed a petition for review; therefore, the
initial decision became final in June 2018. 0257-S-1 ID at 2.2
connection with her removal. 0258 ID at 1-3. In a separate initial decision, the
administrative judge dismissed the chapter 75 appeal as untimely filed without
good cause shown. 0257 ID at 1-4. No petitions for review were filed in either
appeal, and the initial decisions became final in June 2018. 0258 ID at 3;
0257 ID at 4.
In December 2019, OSC issued the appellant a close-out letter regarding
her October 2017 OSC complaint. IAF, Tab 5 at 28. This IRA appeal followed,
again regarding the appellant’s removal. IAF, Tab 1.
The administrative judge informed the appellant of her burden to establish
the Board’s jurisdiction over her IRA appeal.3 IAF, Tab 3. In response, the
appellant, through her representative, indicated that she had made disclosures in
her written and oral replies to the proposal notice that she and her supervisors
lacked FMLA training and that her supervisors had directed her to use FMLA
leave. IAF, Tab 6 at 5-8. She asserted that those disclosures were a contributing
factor in her removal. Id. at 6-8.
The administrative judge also ordered the appellant to show cause as to
why her IRA appeal should not be dismissed on the basis of collateral estoppel.
IAF, Tab 8. The appellant argued that collateral estoppel was inapplicable
because the issue of the Board’s jurisdiction over her whistleblower reprisal claim
was not actually litigated in her prior IRA appeal. IAF, Tab 11 at 5-7.
In his initial decision, the administrative judge dismissed the appellant’s
IRA appeal for lack of jurisdiction, finding that she was collaterally estopped
from re-litigating the jurisdictional issue. IAF, Tab 12, Initial Decision (ID) at 1,
5. He found that the issues presented in the instant IRA appeal and the prior IRA
appeal were identical in that they both involved the same alleged protected
disclosure, personnel action, and OSC complaint. ID at 4. He additionally found
3 The instant IRA appeal was adjudicated by a different administrative judge than the
one who adjudicated the appellant’s 2018 appeals and stay request.3
that the issue of jurisdiction was actually litigated in the prior IRA appeal and
was necessary to the resulting judgment. Id.
The appellant has filed a petition for review, arguing that the administrative
judge erred in applying collateral estoppel to the jurisdictional determination in
her prior IRA appeal because the issue of reprisal for making protected
disclosures was not litigated in that appeal. Petition for Review (PFR) File,
Tab 3. The agency has filed a response to the petition for review. PFR File,
Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
We vacate the administrative judge’s determination that collateral estoppel barred
the appellant from litigating jurisdiction over her IRA appeal.
The administrative judge applied the doctrine of collateral estoppel to give
preclusive effect to the jurisdictional finding in the appellant’s prior IRA appeal.
ID at 4-5. The appellant disputes this determination, arguing that she did not
raise a whistleblower reprisal claim in her first IRA appeal. PFR File, Tab 3
at 5-7. We agree.
The doctrine of collateral estoppel may preclude a second action in the
same forum that dismissed a prior appeal for lack of jurisdiction. Johnson v.
Department of the Air Force , 92 M.S.P.R. 370, ¶ 13 (2002). Collateral estoppel
is appropriate when, as relevant here, the issue was actually litigated in the prior
action. Id. The “actually litigated” element is satisfied when the issue was
“properly raised by the pleadings, was submitted for determination, and was
determined.” Id. (quoting Banner v. United States , 238 F.3d 1348, 1354 (Fed.
Cir. 2001)).
The Board has found that the underlying jurisdictional issue of whether an
appellant made protected disclosures was not previously litigated when an
appellant withdrew a prior appeal to cure a failure to exhaust. Serrao v.
Department of Commerce , 69 M.S.P.R. 475, 477-78 (1996). In addition, the
Board held that dismissal for lack of jurisdiction of a prior IRA appeal does not4
bar a subsequent IRA appeal based on different alleged disclosures or protected
activities. Id. at 478-79. The Board also declined to give collateral estoppel
effect to a jurisdictional dismissal for failure to exhaust when the appellant had
since exhausted and the jurisdictional issue in the second appeal was whether the
appellant’s alleged disclosures were protected. El v. Department of Commerce ,
123 M.S.P.R. 76, ¶¶ 6-7 & n.7 (2015), aff’d per curiam , 663 F. App’x 921 (Fed.
Cir. 2016). In these instances, the Board reasoned, as relevant here, that the same
jurisdictional issue was not actually litigated in a prior appeal. Id., ¶ 7 n.7; see
Serrao, 69 M.S.P.R. at 477-79 (concluding further that the issues were not
identical in the first and second appeals, as necessary to apply the doctrine of
collateral estoppel).
Here, the issue of the Board’s jurisdiction over claims the appellant raised
for the first time in the instant appeal was not, and could not be, actually litigated
in her prior appeal. The appellant clarified in response to the field office’s
docketing of her prior IRA appeal that she was not raising a claim of
whistleblower reprisal. 0258 ID at 2. As a result, the administrative judge found
that she failed to meet her jurisdictional burden. Id. We find that the prior
dismissal based on the appellant’s failure to raise a whistleblower reprisal claim
does not bar the appellant’s specific claim here that the agency removed her in
reprisal for her FMLA disclosures. Therefore, we vacate the administrative
judge’s finding that collateral estoppel precluded the appellant from asserting
jurisdiction over the instant appeal.
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her remedies before OSC and makes nonfrivolous allegations that
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 5.5
Although the administrative judge did not make findings on these issues, he
developed the record on jurisdiction. IAF, Tab 3 at 2-6, Tabs 5-6, Tab 7 at 10.
We find that the record is sufficient to determine that appellant has established
jurisdiction over her appeal, as described below. See Carson v. Department of
Energy, 109 M.S.P.R. 213, ¶¶ 33-34 (2008) (determining that an appellant
established jurisdiction over his IRA appeal in the first instance on review when
the record was sufficiently developed for the Board to make the necessary
findings), aff’d per curiam , 357 F. App’x 293 (Fed. Cir. 2009).
The appellant exhausted her alleged disclosure and personnel action with OSC.
The Board, in Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The
requirements are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. The Board’s jurisdiction is limited to those issues that
were previously raised with OSC. However, appellants may give a more detailed
account of their whistleblowing activities before the Board than they did to OSC.
Id. Appellants may demonstrate exhaustion through their initial OSC complaint;
evidence that they amended the original complaint, including but not limited to
OSC’s determination letter and other letters from OSC referencing any amended
allegations; and their written responses to OSC referencing the amended
allegations. Id. Appellants also may establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
they raised with OSC the substance of the facts in the Board appeal. Id.
As previously noted, the appellant alleged that in her written and oral
replies to the proposal notice she made disclosures that she and her supervisors
lacked FMLA training and that her supervisors had directed her to use
FMLA-protected leave. IAF, Tab 6 at 5-8. In her 2017 OSC complaint, the
appellant described how she “requested and got approved” to use FMLA leave to
care for her husband following his cancer diagnosis. IAF, Tab 5 at 22. She
explained that the timekeeper sent her an email on how to invoke and code FMLA6
and that her supervisor “informed [her] to add FMLA . . . on an annual leave
request.” Id. The appellant alleged to OSC that none of her supervisors
requested additional documentation from her and that the agency’s subsequent
actions violated regulations concerning leave entitlement and the FMLA. Id.
at 23. The appellant further alleged to OSC that her removal constituted
whistleblower reprisal. Id. at 28. Under the circumstances, we find that the
appellant provided OSC with a sufficient basis to pursue an investigation, and she
therefore met the exhaustion requirement. See Chambers, 2022 MSPB 8,
¶¶ 10-11.
The appellant nonfrivolously alleged that she made a protected disclosure under
5 U.S.C. § 2302(b)(8) and that she was subjected to a personnel action.
As set forth above, the appellant asserted that in her written and oral replies
to the proposal notice she made disclosures that she and her supervisors lacked
FMLA training and that her supervisors had directed her to use the FMLA leave
underlying her removal. IAF, Tab 6 at 5-8. We find that the appellant has made
a nonfrivolous allegation that these disclosures were protected.
A protected disclosure is one that an appellant reasonably believes
evidences any violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8); Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for determining
whether an employee had a reasonable belief that her disclosures were protected
is whether a disinterested observer in her position with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the actions evidenced any of the conditions set forth in 5 U.S.C.
§ 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶ 5. Any doubt or ambiguity as to
whether an appellant raised a nonfrivolous allegation of a reasonable belief
should be resolved in favor of a finding that jurisdiction exists. Id., ¶ 8. 7
In the notice of proposed removal, the agency alleged, among other things,
that the appellant falsified approximately 25 FMLA-protected leave requests,
between February 22, 2016, through February 3, 2017, by claiming that she was
caring for her husband with cancer when she was not. IAF, Tab 5 at 4-5. The
appellant did not submit copies of her written and oral replies to the proposal
notice; however, she alleged that in those replies she disclosed to the deciding
official and other management officials that her supervisors had directed her to
apply for FMLA -protected leave, they had approved her FMLA-protected leave,
and neither she nor her supervisors had received training on the process for
obtaining and requesting FMLA-protected leave. IAF, Tab 6 at 5. She claims she
also disclosed that when she submitted an annual or sick leave request, her
supervisor “directed her to ascribe her leave request to the FMLA, because an
application for FMLA leave did not require these supervisors to first check her
annual or sick leave balances before approving Appellant’s application for leave.”
Id.
Agencies are responsible for properly administering FMLA, “including . . .
informing employees of their entitlements and obligations.” 5 C.F.R.
§ 630.1201(c). Regulations implementing FMLA reserve the right to invoke
FMLA to the employee rather than the agency. 5 C.F.R.
§ 630.1203(b), (h). “An employee may request to use annual leave or sick leave
without invoking family and medical leave.” 5 C.F.R. § 630.1206(e)(4). The
appellant submitted an email dated July 20, 2017, which shows that her direct
supervisor, who also proposed her removal, instructed her to revise her timecard
for the pay period beginning on May 28, 2017 and “add the FMLA code for any
of the dates [she] had annual leave.”4 IAF, Tab 6 at 12. She also submitted
sworn statements from two of her supervisors, including the proposing official,
acknowledging that they had not received any formal training on the FMLA
4 Although this email is dated after the notice of proposed removal had been issued on
July 17, 2017, we find it is relevant to the extent that it evidences the agency’s practices
prior to that date.8
program or process. Id. at 13, 22. One supervisor also stated that she had never
counseled the appellant regarding the use of FMLA-protected leave. Id. at 22.
We find that the appellant has nonfrivolously alleged that a reasonable person in
her position, with knowledge of the facts known to her, could have reasonably
concluded that the agency failed to properly administer FMLA by failing to
inform her of her obligations under FMLA and that an agency official improperly
required the appellant to invoke FMLA protections for annual leave in violation
of FMLA regulations. Moreover, a removal is a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii). Thus, we find that the appellant nonfrivolously alleged that
she made a protected disclosure under 5 U.S.C. § 2302(b)(8) and that she was
subjected to a personnel action.
The appellant nonfrivolously alleged that her protected disclosure was a
contributing factor in her removal.
Next, we consider whether the appellant nonfrivolously alleged that her
disclosures were a contributing factor in her removal. We find that she did.
An appellant’s protected disclosure is a contributing factor if it in any way
affects an agency’s decision to take a personnel action. Dorney v. Department of
the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way an appellant may establish
the contributing factor criterion is the knowledge/timing test, under which she
submits evidence showing that the official taking the personnel action knew of
the disclosure or activity and that the personnel action occurred within a period of
time such that a reasonable person could conclude that the disclosure or activity
was a contributing factor in the personnel action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 63. The Board has held that a
personnel action taken within approximately 1 to 2 years of an appellant’s
disclosures or activity satisfies the timing portion of the knowledge/timing test.
Id.
The appellant alleged that her July 26 and 31, 2017 disclosures, delivered
in her written and oral replies to her proposed removal, resulted in her9
September 5, 2017 removal. IAF, Tab 6 at 5. Therefore, the appellant’s
allegations are sufficient to meet her jurisdictional burden as to the timing prong
of the knowledge/timing test.
We also conclude that the appellant nonfrivolously alleged that the official
who decided to remove the appellant had direct knowledge of the appellant’s
disclosures. Specifically, in the notice of decision on the proposed removal, the
deciding official acknowledges that she received the appellant’s written response
on July 26 and met with the appellant and received the oral reply on July 31,
2017. IAF, Tab 5 at 13. Thus, the appellant has made nonfrivolous allegations
regarding the knowledge prong of the knowledge/timing test for purposes of
establishing the Board’s IRA jurisdiction. Accordingly, we remand this appeal
for further development of the record on the merits, including holding the
appellant’s requested hearing. IAF, Tab 1 at 3; see Rusin v. Department of the
Treasury, 92 M.S.P.R. 298, ¶ 20 (2002) (stating that, when the test for
establishing the Board’s IRA jurisdiction has been met, the appellant is entitled to
a hearing on the merits of his claim).
ORDER
For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Ford_NancyDE-1221-20-0154-W-1__Remand_Order.pdf | 2024-07-01 | NANCY FORD v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-1221-20-0154-W-1, July 1, 2024 | DE-1221-20-0154-W-1 | NP |
1,094 | https://www.mspb.gov/decisions/nonprecedential/Sandine_Aaron_F_DE-0752-15-0113-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AARON F. SANDINE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-15-0113-I-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Raymond R. Aranza , Esquire, Omaha, Nebraska, for the appellant.
Thomas J. Ingram, IV , Esquire, Omaha, Nebraska, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his demotion. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On July 29, 2014, the appellant’s second -level supervisor proposed to
suspend him from his GS-11 Realty Specialist position for 14 days on the basis of
false statements, attendance -related offenses, and failure to follow regulations
related to his unauthorized use of the fitness center during duty hours. Initial
Appeal File (IAF), Tab 7 at 74-85. On August 18, 2014, the appellant submitted
a written response to the Deputy Commander, asserting, among other things, that
he had been authorized to use the fitness center and alleging that his second-level
supervisor had misrepresented his statements, threatened to fire him, and warned
him against talking to human resources (HR) or the equal employment
opportunity (EEO) office. Id. at 68-70. On August 29, 2014, the Deputy
Commander issued a decision sustaining the charges and imposing the 14 -day
suspension. Id. at 64-67.
On September 5, 2014, the appellant’s second-level supervisor proposed his
removal based on one charge of false statements and/or deliberate
misrepresentations with five underlying specifications, each of which identified
an allegedly false statement from the appellant’s August 18, 2014 written
response to the proposed 14 -day suspension. Id. at 48-51. The appellant
provided an oral reply to the proposed removal, during which he denied that he2
made any false statements in his response to the proposed suspension and stated
that, although he regretted the tone of the response, he stood by those statements.
Id. at 24-45. On November 21, 2014, the District Commander (deciding official)
issued a decision letter finding that the appellant made deliberate false statements
with the intent to avoid or mitigate potential disciplinary actions and attempted to
deceive the Deputy Commander in the suspension action and to malign his
second-level supervisor. Id. at 21. He also noted that the appellant was afforded
ample opportunity to correct any false statements, but failed to do so, during his
response to the proposed removal, a one-on-one meeting with the deciding
official, and a mediation conducted by the deciding official between the appellant
and his second-level supervisor. Id. Nonetheless, the deciding official
determined that the appellant “deserve[d] a chance to correct [his] behavior and
lack of integrity” and mitigated the removal penalty to a demotion. Id. Effective
November 30, 2014, the agency demoted the appellant to a GS-7 Administrative
Support Assistant position. Id. at 19.
The appellant timely appealed his demotion to the Board, arguing that he
did not make any false statements with the intent to deceive or to malign his
second-level supervisor, that the punishment was excessive, that the deciding
official violated his due process rights by improperly considering the contents of
the mediation session, and that his demotion was the product of reprisal for EEO
activity. IAF, Tab 1 at 9. After holding the requested hearing, the administrative
judge issued an initial decision finding that the agency proved the charge, nexus,
and the reasonableness of the penalty, and denying the appellant’s due process
and reprisal affirmative defenses. IAF, Tab 23, Initial Decision (ID).
Accordingly, the administrative judge affirmed the appellant’s demotion. ID
at 25.
The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
On review, the appellant argues that the agency improperly disciplined him twice3
for the same misconduct and challenges the administrative judge’s findings
regarding his affirmative defenses, nexus, and the reasonableness of the penalty.2
PFR File, Tab 1 at 7-16.
ANALYSIS
The agency did not discipline the appellant twice for the same misconduct.
The appellant argues on review, as he did below, that his 14-day suspension
and his proposed removal, later mitigated to a demotion, were premised on the
same underlying misconduct, i.e., his unauthorized use of the fitness center
during core duty hours and alleged false statements related to that misconduct.3
PFR File, Tab 1 at 10-11. It is well settled that an agency may not discipline an
employee twice for the same misconduct. Frederick v. Department of Homeland
Security, 122 M.S.P.R. 401, ¶ 6 (2015); Westbrook v. Department of the Air
Force, 77 M.S.P.R. 149, 155 (1997). Therefore, an agency cannot rely upon
employee misconduct that formed the basis of a prior disciplinary or adverse
action when imposing a subsequent disciplinary or adverse action. Frederick,
122 M.S.P.R. 401, ¶ 6.
Here, as noted above, the appellant’s second-level supervisor proposed to
suspend him for 14 days on the basis of false statements, attendance-related
offenses, and failure to observe written rules in connection with his unauthorized
2 On review, the appellant does not challenge the administrative judge’s finding that the
agency proved the charge and the five underlying specifications. PFR File, Tab 1. We
find no basis to disturb this well-reasoned finding. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on issues of credibility); Broughton v. Department of Health
& Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
3 Although the appellant argued below that he was improperly disciplined twice for the
same misconduct, e.g., Hearing Transcript at 99 (appellant’s closing statements), the
administrative judge did not address this argument in the initial decision. We find that
this omission did not prejudice the appellant and consider this argument for the first
time on review. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision).4
use of the fitness center during duty hours. IAF, Tab 7 at 74-85. The suspension
proposal notice specified numerous instances in May, June, and July 2014 when
the appellant was in the fitness center for an extended period of time—usually
between 30 and 75 minutes over the course of several visits per day—during his
duty hours while, according to his time cards, he was in a work status. Id.
at 74-79. The suspension proposal notice also indicated that the appellant made
the following statements to his second-level supervisor during meetings on
July 14 and 17, 2014, which his second -level supervisor subsequently determined
to be false: (1) that the former Safety Office Chief told him that he was entitled
to two 15-minute breaks every day and that he never spent more than that amount
of time, i.e., 30 minutes per day, working out in the fitness center, id. at 79-80;
(2) that the former Chief of Real Estate, who retired in 2013, gave him permission
to use the fitness center during his duty hours, id. at 80; and (3) that the majority
of his time in the fitness center was spent performing his assigned duty of
inspecting the fitness center, id. at 80-82.
The notice of proposed removal, on the other hand, charged the appellant
with making the false statements and/or deliberate misrepresentations in his
August 18, 2014 written response to the proposed suspension. Id. at 48-49. The
specifications supporting the charge identified the following statements by the
appellant and explained that each was false: (1) “[My second-level supervisor’s]
claim that I said I was authorized by [the former Chief] to take breaks in the
fitness center [] is a deliberate, false statement”; (2) “During both conversations
[on July 14 and July 17, 2014] [my second -level supervisor] repeatedly
threatened to fire me and make an example of me”; (3) “[O]n both 14 and 17 July
[my second-level supervisor] stated repeatedly that he knew people were taking
these long and frequent breaks and they were not authorized”; (4) “[My
second-level supervisor] told me to keep quiet [and] that he had suspended others
for less and that he might push to fire me if I talked to HR or EEO”; and (5) “[My5
second-level supervisor] also claimed that I said that [the former Safety Office
Chief] said I was entitled to breaks. This is a deliberate, false statement.” Id.
Thus, although related, the two disciplinary actions are based on different
facts and not barred by the prohibition against double punishment. See Williams
v. Defense Logistics Agency , 34 M.S.P.R. 54, 58 (1987) (finding that the agency
did not improperly discipline the appellant twice for the same offense when it
suspended him on the basis of absence without leave and then removed him on
the basis of false statements provided in response to a proposed suspension).
The administrative judge correctly determined that the appellant failed to
establish his due process affirmative defense.
A deciding official violates an employee’s due process rights when he
relies upon new and material ex parte information as a basis for his decision on
the merits of a proposed charge or the penalty to be imposed. See Ward v. U.S.
Postal Service, 634 F.3d 1274, 1279 -80 (Fed. Cir. 2011); Stone v. Federal
Deposit Insurance Corporation , 179 F.3d 1368, 1376 -77 (Fed. Cir. 1999). The
Board has held that an employee’s due process right to notice extends to both
ex parte information provided to a deciding official and information known
personally to the deciding official, if the information was considered in reaching
the decision and not previously disclosed to the appellant. Solis v. Department of
Justice, 117 M.S.P.R. 458, ¶ 7 (2012). However, not all ex parte communications
rise to the level of due process violations; only ex parte communications that
introduce new and material information to the deciding official are
constitutionally infirm. Id., ¶ 8. The following factors are used to determine if
ex parte information is new and material: (1) whether the ex parte information
introduced cumulative, as opposed to new, information; (2) whether the employee
knew of the information and had an opportunity to respond; and (3) whether the
communication was of the type likely to result in undue pressure on the deciding
official to rule in a particular manner. Stone, 179 F.3d at 1377. Ultimately, we
must determine whether the ex parte communication is so substantial and so6
likely to cause prejudice that no employee can fairly be required to be subjected
to a deprivation of property under such circumstances. Id.
In the initial decision, the administrative judge found no merit to the
appellant’s argument that the deciding official violated the appellant’s due
process rights by considering alleged ex parte information, i.e., the appellant’s
standing by his allegedly false statements during the mediation session. ID
at 19-21. In so finding, the administrative judge determined that the appellant
was aware that his subsequent statements may be considered by the deciding
official and that the alleged ex parte information was merely cumulative of
information he already had provided in his responses to the proposed suspension
and the proposed removal. Id.
The appellant challenges this finding on review, arguing again that the
deciding official considered ex parte information from the mediation session in
rendering his decision on the proposed removal. PFR File, Tab 1 at 12-13. In
particular, he alleges that, prior to the mediation, the deciding official believed
that there was only a “miscommunication” between the appellant and his
second-level supervisor but that, after the appellant refused to retract his
allegations against his second -level supervisor during the mediation, the deciding
official concluded that there was a “bigger problem than miscommunication” and
that the two could not work in the same department. Id. Thus, the appellant
concludes that “[b]ut for the mediation session, [the deciding official] would have
likely determined the second charge lacked merit because it was a
miscommunication between the parties [and] would not have issued the penalty of
demotion.” Id.
As the administrative judge correctly explained, the appellant refused in his
oral reply to the proposed removal, as he did during the mediation session, to
retract the allegedly false statements from his written response to the proposed
suspension. ID at 21; IAF, Tab 7 at 28-43. In fact, he expressly stated during his
oral reply that he stood by his response to the proposed suspension and insisted7
that the statements identified in the five specifications were all true. IAF, Tab 7
at 28, 36, 43-44. Accordingly, we agree with the administrative judge’s
determination that the appellant’s statements during the mediation session were
merely cumulative of information already known to the deciding official and were
not new or material information amounting to a violation of the appellant’s due
process rights. See Hornseth v. Department of the Navy , 916 F.3d 1369, 1375-76
(Fed. Cir. 2019) (finding that ex parte communication did not violate due process
because it concerned cumulative or already known information to clarify
arguments that the appellant made in his reply to the proposed action).
On review, the appellant also argues that, because of the agency’s false
assurance that statements during the mediation would not be used against either
party, he discussed matters at the mediation that he otherwise would not have
discussed outside the presence of his attorney. PFR File, Tab 1 at 13. As the
administrative judge correctly determined, however, the absence of the
appellant’s attorney from the mediation due to alleged misinformation by the
agency is subject to harmful error analysis, rather than due process analysis. ID
at 20; see Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985)
(explaining that minimum due process requires only that a tenured Federal
employee receive “oral or written notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity to present his side of
the story”). Under the harmful error doctrine, an agency’s action is reversible
only if the employee proves that the procedural error substantially prejudiced his
rights by possibly affecting the agency’s decision. Tom v. Department of the
Interior, 97 M.S.P.R. 395, ¶ 43 (2004); see Ward, 634 F.3d at 1281. Harmful
error cannot be presumed; the employee must show that the error was likely to
have caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error. Tom, 97 M.S.P.R. 395, ¶ 43.
In the initial decision, the administrative judge found that, because the
appellant stood by his version of events when his attorney was present during the8
oral response and at his Board hearing, there was no basis to believe that he
would have recanted his prior version of events and perhaps avoided discipline if
his attorney had been present at the mediation. ID at 21. Thus, the
administrative judge concluded that any such error on the part of the agency was
not harmful. Id. The appellant’s vague assertion on review that he discussed
matters during the mediation that he otherwise would not have discussed because
of the agency’s alleged error provides no basis to disturb this finding.
The administrative judge correctly found that the appellant failed to prove his
affirmative defense of reprisal.
Here, the administrative judge found that the appellant did not meet his
burden of prevailing on the affirmative defense of EEO reprisal.4 ID at 15-17. In
so finding, he noted that, although the September 5, 2014 proposed removal
closely followed the appellant’s July 29, 2014 EEO activity, he did not fault the
agency for taking prompt action in response to the appellant’s August 18, 2014
written response containing false statements. ID at 16. He found that the
deciding official had no motive to retaliate against the appellant and that,
although the appellant’s second -level supervisor may have had some motive to
retaliate, he did not state, as alleged by the appellant, that he would fire the
appellant if he went to the EEO office. ID at 15-17. The administrative judge
further found no credible evidence that the appellant’s second-level supervisor or
the deciding official made ambiguous statements or exhibited behavior showing
retaliatory animus toward employees who filed EEO complaints, and no evidence
showing that the agency’s stated reason for taking the disciplinary action was
pretextual. ID at 15-16.
On review, the appellant argues that the administrative judge failed to
consider the evidence as a whole. PFR File, Tab 1 at 14-15. In particular, he
4 The record reflects that the appellant initiated contact with an EEO official on
July 29, 2014, alleging that his second-level supervisor proposed his 14-day suspension
and subjected him to a hostile work environment in retaliation for his earlier statement
that he was going to go to the EEO office or HR. IAF, Tab 18 at 25-26. 9
notes that his second -level supervisor conceded that he was “shocked” and
“disgusted” when he read the appellant’s written response to the proposed
suspension and the EEO complaint and that this admission constitutes “direct
evidence” of retaliatory motive. Id.
At the hearing, the appellant’s second-level supervisor testified that, upon
seeing the appellant’s response to the proposed 14 -day suspension, he was
“shocked,” “disgusted,” and “disappointed.” Hearing Transcript (HT) at 27
(testimony of second-level supervisor). He went on to explain that he, the Office
of Counsel, and HR considered the appellant’s allegations and false statements to
be “pretty egregious” and to warrant removal. Id. at 27-28 (testimony of
second-level supervisor). He further testified that, in light of the appellant’s false
statements, he had “no faith in him whatsoever to tell the truth” and “no faith in
his integrity whatsoever.” Id. at 30-31 (testimony of second-level supervisor).
Contrary to the appellant’s assertion on review, these statements do not pertain to
the appellant’s EEO complaint and do not indicate retaliatory motive on the part
of his second-level supervisor.
Moreover, we disagree with the appellant’s argument on review that the
administrative judge failed to consider the record as a whole. To the contrary, the
administrative judge thoroughly discussed the record evidence and the hearing
testimony and concluded that the totality of the evidence did not support a finding
of retaliatory animus. The appellant’s arguments on review provide no basis to
disturb this finding. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106
(1997) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility); Broughton v. Department of
Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same). 10
The administrative judge correctly found that the agency established nexus
between the charge and the efficiency of the service.
In addition to the requirement that the agency prove its charge by
preponderant evidence, the agency also must prove that there is a nexus, i.e., a
clear and direct relationship, between the articulated grounds for the adverse
action and either the appellant’s ability to accomplish his duties satisfactorily or
some other legitimate Government interest. Campbell v. Department of the Army ,
123 M.S.P.R. 674, ¶ 24 (2016). Here, the administrative judge found that the
agency established nexus between the charge of false statements and deliberate
misrepresentations and the efficiency of the service. ID at 22. The appellant
challenges this finding on review. PFR File, Tab 1 at 16.
When, as here, the misconduct occurred at work, there is a presumption of
a nexus. Campbell, 123 M.S.P.R. 674, ¶ 24. Moreover, the appellant’s false
statements and deliberate misrepresentations call into question his reliability,
veracity, trustworthiness, and ethical conduct, and thus directly impact the
efficiency of the service. See Schoeffler v. Department of Agriculture ,
47 M.S.P.R. 80, 86 (finding nexus between charges of falsification and engaging
in dishonest activity and the efficiency of the service), vacated in part on other
grounds, 50 M.S.P.R. 143 (1991). Further, an agency has a right to expect its
workers to be honest, trustworthy, and candid. The appellant’s false statements
and deliberate misrepresentations strike at the very heart of the
employer-employee relationship. See Stein v. U.S. Postal Service , 57 M.S.P.R.
434, 441 (1993). Accordingly, we find no basis to disturb the administrative
judge’s determination that the agency established nexus between the charge and
the efficiency of the service. See Broughton, 33 M.S.P.R. at 359.
The administrative judge correctly found that the penalty of demotion was
reasonable.
The Board will review an agency imposed penalty only to determine if the
agency considered all the relevant factors and exercised management discretion
within tolerable limits of reasonableness. Douglas v. Veterans Administration ,11
5 M.S.P.R. 280, 305 -06 (1981). In making this determination, the Board must
give due weight to the agency’s primary discretion in maintaining employee
discipline and efficiency, recognizing that the Board’s function is not to displace
management’s responsibility, but to ensure that managerial judgment has been
properly exercised. Campbell, 123 M.S.P.R. 674, ¶ 25; Douglas, 5 M.S.P.R.
at 306. It is not the Board’s role to decide what penalty it would impose, but
rather to determine whether the penalty selected by the agency exceeds the
maximum reasonable penalty. Campbell, 123 M.S.P.R. 674, ¶ 25.
Here, the administrative judge found that the deciding official considered
the relevant factors and exercised his discretion within the tolerable limits of
reasonableness in mitigating the proposed removal to a demotion. ID at 24-25.
In finding the demotion to be a reasonable penalty for the sustained charge, the
administrative judge explained that providing false information to an agency is a
serious offense because it implicates the agency’s trust in the employee. ID
at 23. He further found that the seriousness of the appellant’s misconduct was
aggravated by the fact that his misconduct was intentional and involved multiple
sustained specifications and the fact that, by virtue of his earlier discipline for
making false statements, among other things, he was on notice that providing
false statements to the agency might result in discipline. ID at 23-24. The
administrative judge also found that the deciding official gave careful
consideration to the question of whether the appellant could be rehabilitated and
concluded that demotion was an appropriate means of allowing the appellant to
keep his job while “rethinking the importance of integrity.” Id.
On review, the appellant argues that the administrative judge erred in
finding that the penalty was reasonable and failed to consider relevant mitigating
factors, such as the fact that the appellant was not on notice that his use of the
fitness center and “break time” was wrong or that other employees used the
fitness center but were not punished. PFR File, Tab 1 at 15-16. As discussed
above, the appellant’s unauthorized use of the fitness center during duty hours is12
not the subject of the adverse action at issue in this appeal; rather, the agency
proposed his removal on the basis of false statements and deliberate
misrepresentations contained in his response to the proposed suspension. The
appellant additionally argues that the administrative judge failed to consider as
mitigating factors his EEO complaint and retaliation claim against his
second-level supervisor. Id. As also discussed above, however, we find no merit
to the appellant’s EEO reprisal claim and it provides no basis to disturb the initial
decision. Accordingly, we agree with the administrative judge’s well-reasoned
findings that the deciding official considered the relevant factors and that
demotion is not outside the tolerable limits of reasonableness for the sustained
charge. See Crosby, 74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain14
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 15
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Sandine_Aaron_F_DE-0752-15-0113-I-1__Final_Order.pdf | 2024-07-01 | AARON F. SANDINE v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-15-0113-I-1, July 1, 2024 | DE-0752-15-0113-I-1 | NP |
1,095 | https://www.mspb.gov/decisions/nonprecedential/McDaniel_William_C_PH-315H-19-0227-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM CRAIG MCDANIEL,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
PH-315H-19-0227-I-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William Craig McDaniel , Lawrenceburg, Tennessee, pro se.
Alana Beth Kuhn , Esquire, and Kathryn Carroll , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed without good cause shown. On petition for
review, the appellant argues that a medical condition affected his ability to timely
file his appeal. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
In finding that the appellant’s appeal was untimely filed without good
cause shown, the administrative judge addressed the appellant’s claim that he
filed his appeal 15 days after the filing deadline because he confused the 45-day
time limit for filing an equal employment opportunity complaint with the 30-day
time limit for filing a Board appeal. Initial Appeal File (IAF), Tab 20, Initial
Decision (ID) at 2-3. The administrative judge correctly found that the
appellant’s explanation did not establish good cause. ID at 3; Via v. Office of
Personnel Management , 114 M.S.P.R. 632, ¶ 7 (2010) (finding that
misinterpretation or misreading the filing deadline where clear notice is provided
does not show good cause to waive a filing deadline). The administrative judge
did not, however, address the length of the filing delay, 15 days. Our reviewing
court has held that the Board should consider the length of the delay in every
good cause determination . Walls v. Merit Systems Protection Board , 29 F.3d
1578, 1582 (Fed. Cir. 1994). The administrative judge’s error is not a basis to
disturb the initial decision, however, as the Board has held that a 15-day filing2
delay, while not particularly lengthy, is not minimal.2 Beck v. General Services
Administration, 86 M.S.P.R. 489, ¶ 7 (2000).
For the first time on petition for review, the appellant alleges that his
medical condition caused the delay in filing his appeal. Petition for Review
(PFR) File, Tab 1 at 5. Generally, the Board will not consider an argument raised
for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence.
Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). Here, the
appellant’s evidence, a social worker’s report made after the issuance of the
initial decision, is new. However, as discussed below, it is not material because it
is not of sufficient weight to warrant an outcome different from that of the initial
decision. West v. Department of Health & Human Services , 122 M.S.P.R. 434,
¶ 6 n.2 (2015); Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).
The Board will find good cause for a waiver of its filing time limits where
a party shows that he suffered from an illness that affected his ability to file on
time. Braxton v. Department of the Treasury , 119 M.S.P.R. 157, ¶ 7 (2013); Lacy
v. Department of the Navy , 78 M.S.P.R. 434, 437 (1998). To establish that an
untimely filing was the result of an illness, the party must: (1) identify the time
period during which he suffered from the illness; (2) submit medical or other
corroborating evidence showing that he suffered from the alleged illness during
that time period; and (3) explain how the illness prevented him from timely filing
his appeal or requesting an extension of time. Braxton, 119 M.S.P.R. 157, ¶ 7.
The party need not prove incapacitation during the filing period. Id. He need
prove only that his ability to file with the Board was “affected” or “impaired” by
illness. Washington v. Department of the Navy , 101 M.S.P.R. 258, ¶ 13 (2006).
2 In the initial decision, the administrative judge identified April 7, 2019, as the
deadline date for filing the Board appeal. ID at 2. That was incorrect. As the
administrative judge correctly stated in an order affording the appellant an opportunity
to address the timeliness of his appeal, the deadline date for filing a Board appeal was
April 5, 2019. IAF, Tab 19 at 2. This error does not provide a basis to disturb the
initial decision.3
The appellant apparently first sought treatment on July 3, 2019, PFR File,
Tab 1 at 8, after the administrative judge dismissed his appeal as untimely. IAF,
Tab 21. Importantly, the medical evidence does not address how his condition,
diagnosed in July 2019, prevented the appellant from timely filing a petition for
appeal in April 2019. Under the facts of this case, the appellant has not shown
that he suffers from a medical condition that prevented him from meeting the
Board’s filing time limit. See Lacy, 78 M.S.P.R. at 437.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter. 4
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C8 | McDaniel_William_C_PH-315H-19-0227-I-1__Final_Order.pdf | 2024-07-01 | WILLIAM CRAIG MCDANIEL v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. PH-315H-19-0227-I-1, July 1, 2024 | PH-315H-19-0227-I-1 | NP |
1,096 | https://www.mspb.gov/decisions/nonprecedential/Elias_HectorSF-0752-20-0034-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HECTOR ELIAS,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
SF-0752-20-0034-I-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kylee H. Belanger , Esquire, San Diego, California, for the appellant.
Jared S. Gross , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal for falsification and lack of candor. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Elias_HectorSF-0752-20-0034-I-1__Final_Order.pdf | 2024-07-01 | HECTOR ELIAS v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. SF-0752-20-0034-I-1, July 1, 2024 | SF-0752-20-0034-I-1 | NP |
1,097 | https://www.mspb.gov/decisions/nonprecedential/Le_Duc_V_CH-1221-19-0060-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DUC V. LE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-19-0060-W-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lori Liddell , Tomah, Wisconsin, for the appellant.
John Jakubiak , Esquire, Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant exhausted his administrative remedies with the Office of
Special Counsel (OSC) and made a nonfrivolous allegation that he engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(C), we AFFIRM the initial
decision.
BACKGROUND
The appellant, a GS-13 Pharmacist, filed a Board appeal alleging that the
agency retaliated against him for his whistleblowing activities and disclosures.2
Initial Appeal File (IAF), Tab 1 at 5-6, 8. The administrative judge issued an
order providing the appellant with his burden of establishing Board jurisdiction
over an IRA appeal. IAF, Tab 3. The appellant did not respond to the order.
2 The appellant also indicated on his Board appeal form that he was appealing a
negative suitability determination. Initial Appeal File, Tab 1 at 4. Because the nature
of the appellant’s appeal was unclear, the administrative judge docketed a separate
adverse action appeal. The administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. Le v. Department of Veterans Affairs , MSPB Docket
No. CH-3443-19-0061-I-1, Initial Decision (Nov. 28, 2018). The appellant filed a
petition for review and the Board issued a Final Order denying the petition and
affirming the initial decision. Le v. Department of Veterans Affairs , MSPB Docket
No. CH-3443-19-0061-I-1, Final Order (Apr. 8, 2024).2
Thereafter, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID). The
administrative judge found that it appeared that the appellant was alleging that
the agency failed to grant him a reasonable accommodation because he filed a
report with the agency’s Office of Inspector General (OIG) and an equal
employment opportunity (EEO) complaint. ID at 3. The administrative judge
found that the appellant failed to nonfrivolously allege that any of his disclosures
or activities were protected. ID at 4-5. In particular, the administrative judge
found that the Whistleblower Protection Enhancement Act of 2012 (WPEA)3 only
extends protection to an OIG report or EEO complaint if such a report or
complaint was filed with regard to remedying a violation of the disclosures listed
under 5 U.S.C. § 2302(b)(8). ID at 4. The administrative judge found that the
appellant’s EEO complaint and OIG report did not seek to remedy a violation
under this section and, accordingly, were not protected. ID at 4-5. In addition,
the administrative judge found that the appellant failed to exhaust his
administrative remedies with OSC. ID at 6. In relevant part, the administrative
judge found that the appellant did not identify what he reported to the agency’s
OIG or the nature of his EEO complaint. Id.
The appellant timely filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in an IRA appeal, an appellant generally must
show by preponderant evidence that he exhausted his administrative remedies
before OSC and make nonfrivolous allegations that (1) he made a disclosure
3 Pursuant to the WPEA, effective December 27, 2012, Congress expanded the grounds
on which an appellant may file an IRA appeal with the Board. Rebstock Consolidation
v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 5 (2015). Because all of the
material events in this appeal occurred after December 27, 2012, the WPEA applies to
this appeal. The relevant holdings of pre-WPEA case law that we have cited in this
decision have not been affected by the WPEA.3
described under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).
Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016),
overruled on other grounds by Requena v. Department of Homeland Security ,
2022 MSPB 39. A nonfrivolous allegation is an assertion that, if proven, could
establish the matter at issue. 5 C.F.R. § 1201.4(s).
The appellant has proven exhaustion of his OSC remedies by
preponderant evidence.
The Board, in Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The
requirements are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. The Board’s jurisdiction is limited to those issues that
were previously raised with OSC. However, appellants may give a more detailed
account of their whistleblowing activities before the Board than they did to OSC.
Id. Appellants may demonstrate exhaustion through their initial OSC complaint;
evidence that they amended the original complaint, including but not limited to
OSC’s determination letter and other letters from OSC referencing any amended
allegations; and, their written responses to OSC referencing the amended
allegations. Id. Appellants also may establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
they raised with OSC the substance of the facts in the Board appeal. Id.
Here, for the first time on review, the appellant submits his initial OSC
complaint and his email correspondence with OSC. PFR File, Tab 1 at 7-22,
36-38. The issue of the Board’s jurisdiction is always before the Board and may
be raised by either party or sua sponte by the Board at any time during a Board
proceeding. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 5
(2010). Thus, we will consider the appellant’s OSC complaint and his email4
correspondence with OSC as jurisdictional evidence. See id., ¶¶ 5, 9 (remanding
the appellant’s IRA appeal for adjudication based on evidence of OSC exhaustion
submitted for the first time on review).
In his OSC complaint, the appellant alleged that he filed a report with the
OIG on October 29, 2017, and an EEO complaint on October 26, 2017. PFR File,
Tab 1 at 14. He further stated that he reported in his EEO complaint that the
agency failed to follow Office of Diversity and Inclusion guidelines and the
Americans with Disabilities Act. Id. at 15. It appears that, in response to an
email from an OSC attorney requesting further information, id. at 37-38, the
appellant provided the OSC attorney with email correspondence between himself
and an EEO counselor, id. at 20-36, 67-85. In his correspondence regarding his
EEO complaint, the appellant alleged, inter alia, that the agency violated his
privacy, denied his reasonable accommodation requests, and treated him
disparately from his coworkers. Id. at 67.
The appellant contended in his initial OSC complaint that he suffered
personnel actions on June 8 and October 23, 2017. Id. at 15. In response to an
email from an OSC attorney requesting that the appellant describe what took
place on those dates, id. at 37-38, the appellant stated that his
reasonable accommodation requests were denied, id. at 20. He alleged that the
agency also denied his reasonable accommodation requests on January 31,
April 13, August 1, September 1, and November 24, 2017. Id. at 20-21.
Based on the foregoing, we find that the appellant exhausted these claims
with OSC. Although, as noted above, the administrative judge stated that the
appellant did not describe the content of his report to the OIG, it is unnecessary
for us to determine this issue at the jurisdictional stage. ID at 6; Fisher v.
Department of the Interior , 2023 MSPB 11, ¶ 8 & n.1. Under the broadly
worded provision of 5 U.S.C. § 2302(b)(9)(C), disclosures of information to an
agency’s OIG are protected regardless of their content, as long as such
disclosures are made “in accordance with applicable provisions of law.” Fisher,5
2023 MSPB 11, ¶ 8. Accordingly, we find that the appellant exhausted these
claims before OSC and modify the initial decision accordingly.
The appellant has made a nonfrivolous allegation that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C).
Next, we turn to the issue of whether the appellant made a nonfrivolous
allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
See Corthell, 123 M.S.P.R. 417, ¶ 8. The Board has long held that reprisal for
filing an EEO complaint is a matter relating solely to discrimination and is not
protected by 5 U.S.C. § 2302(b)(8). Williams v. Department of Defense ,
46 M.S.P.R. 549, 554 (1991). Despite expanding the scope of whistleblower
protection in other ways, the WPEA has not altered the long -standing
administrative and judicial interpretation that Title VII -related claims are
excluded from protection under the whistleblower statutes. Edwards v.
Department of the Labor , 2022 MSPB 9, ¶ 22, aff’d, No. 22-1967 (Fed. Cir.
July 7, 2023).
Rather, reprisal for exercising an EEO right is a prohibited personnel
practice under 5 U.S.C. § 2302(b)(9). Linder v. Department of Justice ,
122 M.S.P.R. 14, ¶¶ 7, 10 (2014); Williams, 46 M.S.P.R. at 553. As relevant in
this case, under 5 U.S.C. § 2302(b)(9)(A), it is a protected activity to exercise
“any appeal, complaint, or grievance right granted by any law, rule, or regulation
—(i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)]; or (ii) other
than with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” However,
of the two provisions, an employee or applicant for employment may seek
corrective action from the Board only for protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i). 5 U.S.C. § 1221(a); Edwards, 2022 MSPB 9, ¶ 24.
Here, the administrative judge found that the appellant’s EEO complaint
did not seek to remedy alleged whistleblower reprisal under section 2302(b)(8).
ID at 4-5. We have reviewed the appellant’s newly submitted evidence pertaining6
to his EEO complaint and discern no basis for disturbing this finding on review.
Thus, the administrative judge correctly found that the appellant failed to
nonfrivolously allege that he engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i). See Edwards, 2022 MSPB 9, ¶ 25 (finding that the
appellant failed to show that he engaged in protected activity under
section 2302(b)(9)(A)(i) when his complaints to the agency’s EEO office did not
seek to remedy alleged whistleblower reprisal).
However, we find that the appellant engaged in protected activity when he
disclosed information to the agency’s OIG. Under 5 U.S.C. § 2302(b)(9)(C), an
employee engages in protected activity when he cooperates with or discloses
information to an agency’s OIG, in accordance with applicable provisions of law.
Fisher, 2023 MSPB 11, ¶ 8. Contrary to the administrative judge’s statement in
the initial decision, there is no requirement that the appellant’s disclosure to the
OIG seek to remedy whistleblower reprisal. See id.; ID at 6. Here, the appellant
has nonfrivolously alleged that he engaged in protected activity under
section 2302(b)(9)(C) by filing a complaint with the agency’s OIG. Because the
administrative judge found that the appellant failed to make a nonfrivolous
allegation that he engaged in protected activity, we modify the initial decision to
reflect that the appellant nonfrivolously alleged that he engaged in protected
activity under section 2302(b)(9)(C). However, as discussed below, any such
error by the administrative judge did not prejudice the appellant’s substantive
rights because the appellant nonetheless failed to establish jurisdiction over his
IRA appeal. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984) (an adjudicatory error that is not prejudicial to a party's substantive rights
provides no basis for reversal of an initial decision).
The appellant has failed to nonfrivolously allege that his protected activity was a
contributing factor in a personnel action.
As noted above, to establish jurisdiction over an IRA appeal, the appellant
must nonfrivolously allege that he engaged in protected activity that was a7
contributing factor in a personnel action. Corthell, 123 M.S.P.R. 417, ¶ 8. To
satisfy the contributing factor criterion at the jurisdictional stage, an appellant
need only raise a nonfrivolous allegation that his protected activity was one factor
that tended to affect the personnel action in any way. See Mudd v. Department of
Veterans Affairs , 120 M.S.P.R. 365, ¶ 10 (2013). One way to establish this
criterion is the knowledge-timing test, under which an employee may
nonfrivolously allege that the protected activity was a contributing factor in a
personnel action through circumstantial evidence, such as evidence that the
official taking the personnel action knew of the protected activity, and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the protected activity was a contributing factor in the
personnel action. Id. An appellant also may show that the protected activity was
a contributing factor by proving that the official taking the action had
constructive knowledge of the protected activity, even if the official lacked actual
knowledge. See Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 7 (2014).
As set forth above, the appellant alleged that the agency failed to approve
his accommodation requests on January 31, April 13, June 8,
August 1, September 1, October 23, and November 24, 2017. PFR File, Tab 1
at 15, 20-21. The appellant filed his OIG complaint on October 29, 2017. Id.
at 14. Thus, the appellant’s OIG complaint could not have been a contributing
factor in the agency’s failure to approve his reasonable accommodation requests
on January 31, April 13, June 8, August 1, September 1, and October 23, 2017.
See Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 26 (2007) (disclosures
made after the agency has already taken the personnel actions at issue cannot
have been contributing factors in the personnel actions and do not support a
nonfrivolous allegation that the disclosures were contributing factors in the
personnel actions).
Regarding the agency’s alleged denial of his reasonable accommodation
request on November 24, 2017, the appellant has failed to nonfrivolously allege8
that any agency official involved in the denial of his request had actual or
constructive knowledge of his OIG complaint. Thus, the appellant has failed to
nonfrivolously allege that his OIG report was a contributing factor in the
agency’s November 24, 2017 denial of his reasonable accommodation request
under the knowledge-timing test. See Mudd, 120 M.S.P.R. 365, ¶ 10.
However, the knowledge-timing test is not the only way an appellant can
establish that his protected disclosures were a contributing factor in the agency’s
decision to take a personnel action against him. The Board has held that, if an
appellant has failed to satisfy the knowledge-timing test, it shall consider other
evidence, such as evidence pertaining to the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing activity was
personally directed at the officials in question, and whether they had a desire or
motive to retaliate against the appellant. See Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 15 (2012).
We first consider the strength or weakness of the agency’s reasons for
denying the appellant’s November 24, 2017 reasonable accommodation request.
See id. The appellant merely alleges, without supporting evidence or argument,
that, on November 24, 2017, his “reasonable accommodation requests for
5 minute[] breaks as needed was denied by the inappropriate [Designated
Management Official (DMO)].” PFR File, Tab 1 at 20. The appellant’s
unsubstantiated and vague allegations fail to raise a material issue about the
weakness of the agency’s reasons for denying his November 24, 2017 reasonable
accommodation request. See also Dorney , 117 M.S.P.R. 480, ¶ 18 (finding that
the appellant satisfied the contributing factor criterion at the jurisdictional stage
by, among other things, raising a material issue about the strength or weakness of
the agency’s reasons for the personnel action at issue). As previously noted, the
appellant has the burden of establishing jurisdiction over his IRA appeal, which
includes the burden of meeting the contributing factor requirement. See Corthell,9
123 M.S.P.R. 417, ¶ 8 (setting forth the appellant’s burden of establishing
jurisdiction over an IRA appeal).
Next, we turn to the issue of whether the whistleblowing activity was
personally directed at the officials in question. See Dorney, 117 M.S.P.R. 480,
¶ 15. While the appellant does not specify who the DMO was in respect to the
November 24, 2017 denial of his reasonable accommodation request, he refers to
the Medical Center Director as the DMO when describing other denials of his
reasonable accommodation requests. PFR File, Tab 1 at 20. The appellant’s
October 29, 2017 OIG report mentioned the Medical Center Director and alleges
that she had improperly appointed herself as DMO. Id. at 39. Therefore, there is
evidence that the appellant’s whistleblowing activity was directed towards at least
one of agency officials involved in the November 24, 2017 denial of his
reasonable accommodation request.
However, we discern no other evidence that could indicate that the Medical
Center Director had a motive or desire to retaliate against the appellant. There is
no evidence that the Medical Center Director was embarrassed or inconvenienced
by the appellant’s OIG complaint. According to the appellant, the Medical
Center Director had denied at least some of his other reasonable accommodation
requests prior to his OIG complaint. Id. at 20. Thus, we find that, to the extent
the appellant’s OIG complaint created a retaliatory motive for the Medical Center
Director, any such retaliatory motive was slight. Weighing the factors set forth
above, we find that the appellant failed to nonfrivolously allege that his protected
activity was a contributing factor in the November 24, 2017 denial of his
reasonable accommodation request.
The appellant has therefore failed to establish jurisdiction over his IRA
appeal. We therefore affirm the initial decision dismissing the appeal for lack of
jurisdiction, except as modified as set forth above.10
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any12
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s13
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Le_Duc_V_CH-1221-19-0060-W-1__Final_Order.pdf | 2024-07-01 | DUC V. LE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-19-0060-W-1, July 1, 2024 | CH-1221-19-0060-W-1 | NP |
1,098 | https://www.mspb.gov/decisions/nonprecedential/Terry_Dolores_R_SF-0714-18-0619-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOLORES R. TERRY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-18-0619-I-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Barry J. Bennett , Fresno, California, for the appellant.
Camille D. Stroughter , Oakland, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as settled her appeal of her removal pursuant to 38 U.S.C. § 714. On
petition for review, she primarily challenges the agency’s reasons for removing
her and argues that she did not deserve to have her 52 years of working end on a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
negative note. She also argues that, contrary to the administrative judge’s
findings that she did not raise a claim of age discrimination and that it was thus
not necessary to determine whether the settlement agreement complied with the
Older Workers Benefit Protection Act of 1990 (OWBPA), her “attorney did state
that age could be a possible reason for this wrongful termination claim.”2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
2 Before accepting a settlement agreement in an appeal where age discrimination has
been alleged, the Board must first verify that the agency has complied with the
provisions of the OWBPA. Lange v. Department of the Interior, 94 M.S.P.R. 371,
¶¶ 5-7 (2003). Under the OWBPA, a settlement agreement in such an appeal must meet
the requirements of 29 U.S.C. § 626(f)(1)(A)-(E), and the appellant must be
given a reasonable period of time within which to consider the agreement. 29 U.S.C.
§ 626(f)(2); Lange, 94 M.S.P.R. 371, ¶ 7. In the settlement agreement submitted by the
parties in this appeal, the appellant explicitly acknowledged that her appeal did not
raise any claims of age discrimination. Initial Appeal File (IAF), Tab 17 at 4.
Nonetheless, the agreement contained the provisions required by the OWBPA, including
a term allowing the appellant 7 days to revoke her assent to the agreement. Id. at 5-6.
As noted above, in the initial decision dismissing the appeal as settled, the
administrative judge stated that she had not reviewed the agreement for compliance
with the OWBPA because the appellant did not allege age discrimination in the
underlying appeal. IAF, Tab 19. From our review of the record, we find no evidence
that the appellant formally raised age discrimination as an affirmative defense to the
agency’s action. Accordingly, we find no error in the administrative judge’s
determination that it was unnecessary to review the agreement for compliance with the
OWBPA.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Terry_Dolores_R_SF-0714-18-0619-I-1__Final_Order.pdf | 2024-07-01 | DOLORES R. TERRY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-18-0619-I-1, July 1, 2024 | SF-0714-18-0619-I-1 | NP |
1,099 | https://www.mspb.gov/decisions/nonprecedential/Maurice_Lisa_R_SF-3443-19-0577-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA R. (LAURIN) MAURICE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-3443-19-0577-I-1
DATE: July 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lisa R. (Laurin) Maurice , Bonney Lake, Washington, pro se.
Mandeev Singh Brar , Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal alleging that the agency failed to
promote her or denied her a within-grade increase (WIGI).2 On petition for
review, the appellant restates her argument that the agency failed to promote her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and engaged in harassment and retaliation. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
2 To the extent the administrative judge suggested that Board jurisdiction over an appeal
of a denial of a WIGI is dependent on a reconsideration decision issued by the Office of
Personnel Management (OPM), she was in error. Initial Appeal File (IAF), Tab 8,
Initial Decision at 4. Board jurisdiction over the denial of a WIGI requires a
reconsideration decision from the employee’s employing agency, consistent with
OPM’s regulations. See 5 U.S.C. § 5335(c). The administrative judge’s misstatement
is of no consequence, however, as she correctly set forth the jurisdictional requirements
in her jurisdictional order. IAF, Tab 3 at 3. In any event, as identified in the initial
decision, nothing in the record suggests that the appellant was denied a WIGI and
obtained a reconsideration decision from her employing agency.2
review.3 Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 The appellant has included a number of documents with her petition for review.
Petition for Review (PFR) File, Tab 1 at 9-439. The Board generally will not consider
evidence submitted for the first time on review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). We have reviewed
this evidence, and we find that the appellant has not shown that it is either new or
material. See Okello v. Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10
(2009) (concluding that under 5 C.F.R. § 1201.115(d), the Board will not consider
evidence submitted for the first time with a petition for review absent a showing that it
is both new and material). As an initial matter, many of the documents were included
in the record below. Compare PFR File, Tab 1 at 2-66, 82 -105, with IAF, Tab 1
at 6-14; Tab 5 at 5-69; Tab 7 at 4-5. Regarding the remaining documents, all of the
newly submitted documents predate the initial decision, and the appellant does not
assert that any of the documents were first obtained after the initial decision was issued.
PFR File, Tab 1 at 70-439; see Avansino, 3 M.S.P.R. at 214. Further, the appellant has
not explained how these documents, the bulk of which are comprised of medical
records, performance appraisals, and emails and documents related to the appellant’s
disability retirement appeal, are relevant to the dispositive jurisdictional matter at issue
in this appeal. Accordingly, we have not considered them.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Maurice_Lisa_R_SF-3443-19-0577-I-1__Final_Order.pdf | 2024-07-01 | null | SF-3443-19-0577-I-1 | NP |
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