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1,500 | https://www.mspb.gov/decisions/nonprecedential/Hartzler_Tammy_D_DC-1221-22-0592-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMMY HARTZLER,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-22-0592-W-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tammy D. Hartzler , Nokesville, Virginia, pro se.
David Myers , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action appeal as untimely filed. On petition for
review, the appellant argues, among other things, that her August 8, 2022 appeal
was timely because the March 30, 2022 closure letters from the Office of Special
Counsel went to her “spam” email folder, and she did not discover them until
1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
early June. She also realleges that, once she read the letters, she made multiple
attempts to file her appeal but had difficulty with the Board’s e-Appeal Online
system. 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).
¶2To the extent that the appellant alleges on petition for review that the
agency and the administrative judge engaged in improper activities that caused
her to receive pleadings and issuances in an untimely manner, PFR File, Tab 1
at 2, the record shows that the appellant was not a registered e-filer at the relevant
time, so the fact that she may have received appeal-related communications by
mail later than the opposing party, which is a registered e -filer, does not
demonstrate impropriety by the administrative judge or the agency. Furthermore,
the appellant has not shown how she was harmed by her later receipt of pleadings
and documents as the administrative judge granted her an extension of time to
2 The agency cites Board initial decisions in its response to the appellant’s petition for
review. Such decisions are of no precedential value and therefore are not binding on
the Board. Harris v. Department of the Navy , 15 M.S.P.R. 464, 467 n.4 (1983). To the
extent that the agency cites nonprecedential Board decisions, such decisions likewise
have no precedential value. 5 C.F.R. § 1201.117(c)(2).2
respond to the show cause order regarding the timeliness of her appeal. Initial
Appeal File, Tab 9.
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 | Hartzler_Tammy_D_DC-1221-22-0592-W-1__Final_Order.pdf | 2024-05-10 | TAMMY HARTZLER v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-22-0592-W-1, May 10, 2024 | DC-1221-22-0592-W-1 | NP |
1,501 | https://www.mspb.gov/decisions/nonprecedential/Bearden_GeorgeDC-0752-19-0393-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE BEARDEN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-19-0393-I-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bobby Devadoss , Esquire, Christopher Forasiepi , and Tyler J. Sroufe ,
Esquire, Dallas, Texas, for the appellant.
Henry J. Brezillac , Irving, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s removal action. On petition for review, the appellant
argues that the administrative judge incorrectly found that he failed to prove his
due process affirmative defense and that the agency’s witnesses were not truthful.
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 (PFR) File, Tab 1 at 6. 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 provide the correct causation standard for the appellant’s disparate
treatment disability discrimination claim, we AFFIRM the initial decision.
The administrative judge correctly found that the agency proved all five of
its charges against the appellant by preponderant evidence, that the appellant
failed to establish his affirmative defenses of an alleged due process violation,
race and disability discrimination, and reprisal for prior equal employment
opportunity activity, and that the agency’s chosen penalty of removal promoted
the efficiency of the service and was reasonable. Initial Appeal File (IAF),
Tab 34, Initial Decision (ID) at 3-53. The appellant’s argument on review that
the administrative judge incorrectly denied his due process claim concerning his
deleted email account is without merit. PFR File, Tab 1 at 6. He has failed to
show that he was denied a meaningful opportunity to respond to the charges, as
he provided the deciding official with a substantive 41-page written response.
IAF, Tab 7 at 58-90. Moreover, it is undisputed that the agency ultimately
provided him with his emails after restoring his account and that he had the2
opportunity to present any evidence disputing the charges to the Board. He failed
to do so.
Additionally, in the initial decision, the administrative judge analyzed the
appellant’s status-based disability discrimination claim as set forth in
Southerland v. Department of Defense, 119 M.S.P.R. 566, ¶ 23 (2013), and found
that the appellant failed to present preponderant evidence that the agency’s action
was “based on discrimination due to a disability.” ID at 43. However, following
the issuance of the initial decision, the Board issued its decision in Pridgen v.
Office of Management and Budget, 2022 MSPB 31, wherein we found that, for an
appellant to establish a status-based disability discrimination claim, he must
prove that his disability was at least a motivating factor in the personnel action.
Id., ¶ 40. We agree with the administrative judge’s assessment of the evidence
below, ID at 43, and further add that the proposing official testified that the
appellant’s disability played no role in his decision to propose the removal action,
nor did he discuss the appellant’s disability with the deciding official. IAF,
Tab 30, Hearing Compact Disc (HCD) Day 1 (testimony of the proposing
official). The deciding official testified similarly, stating that although she was
aware of the appellant’s medical conditions, she believed that his assertion that
his disability was the source of his misconduct was “speculation” and that she did
not consider his disability in issuing her decision. IAF, Tab 31, HCD Day 2
(testimony of the deciding official). Based on the foregoing, we modify the
initial decision to find that the appellant failed to prove that his disability was at
least a motivating factor in his removal.
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
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
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 particular4
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 . 5
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 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 | Bearden_GeorgeDC-0752-19-0393-I-1__Final_Order.pdf | 2024-05-10 | GEORGE BEARDEN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-19-0393-I-1, May 10, 2024 | DC-0752-19-0393-I-1 | NP |
1,502 | https://www.mspb.gov/decisions/nonprecedential/Wolfe_DezaraAT-0351-19-0283-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEZARA WOLFE,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
AT-0351-19-0283-I-1
DATE: May 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Kim Carpenter , Esquire, Sylva, North Carolina, for the appellant.
Julie A. Sammons , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as untimely filed her appeal of her separation through reduction in
force (RIF) procedures. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, FIND the 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).
was timely filed, and REMAND the appeal to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
Effective December 13, 2018, the agency separated the appellant from her
Diagnostic Radiologic Technologist position with the Indian Health Service
through RIF procedures. Initial Appeal File (IAF), Tab 1 at 11-13. On
February 17, 2019, the appellant filed her appeal and requested a hearing. Id.
at 1-2. The administrative judge subsequently issued a timeliness order informing
the appellant that her appeal appeared to be untimely and directed her to file
evidence and argument to prove either that her appeal was timely filed or that
good cause existed for her untimely filing. IAF, Tab 11. The appellant did not
respond to the timeliness order. In an initial decision, the administrative judge
dismissed the appeal as untimely filed. IAF, Tab 14, Initial Decision (ID) at 1, 3.
The administrative judge found that the appellant had not presented any reason
for her delay in filing and that she had failed to exercise due diligence.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, an appeal must be filed with the Board no later than 30 days
after the effective date of the agency’s action, or 30 days after the date of the
appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b)(1). An appellant bears the burden of proof by a preponderance of
the evidence on the issue of timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B). Under
the Board’s regulations, the appellant was required to file her RIF appeal on or
before January 14, 2019, or 30 days after the effective date of her RIF.2
2 Because the filing deadline fell on January 12, 2019, a Saturday, it is extended until
January 14, 2019. 5 C.F.R. § 1201.23. The administrative judge improperly stated that
the appellant was required to file her appeal by January 12, 2019. ID at 2. 2
At midnight on December 22, 2018, the Board ceased all operations due to
a partial Government shutdown. PFR File, Tab 1 at 5-6.3 The Board issued a
press release that notified the public that all filing and processing deadlines
would be extended by the number of calendar days that the Board was shut down.
Id. On January 26, 2019, the Board resumed operations after being shut down for
35 days.4 Thus, the appellant’s January 14, 2019 filing deadline was extended
35 days to February 18, 2019.
On review, the appellant argues that her appeal was timely filed in
accordance with the instructions in the Board’s press release concerning the
partial shutdown. Id. at 1-2, 5-6. Although the appellant incorrectly asserts,
without explanation, that her “new deadline” was March 5, 2019, id. at 2, we
agree that she timely filed her appeal. The administrative judge acknowledged
that the appellant’s filing deadline “fell during the [F]ederal [G]overnment
shutdown and the Board was closed during this time,” but she did not address the
extension of filing deadlines. ID at 2; PFR File, Tab 1 at 5-6. The appellant filed
her February 17, 2019 appeal 1 day prior to the extended filing deadline.
Therefore, the appeal was timely filed.
The agency argues that the appellant’s failure to respond to the timeliness
order or provide any reason for her alleged filing delay demonstrates a lack of
due diligence. PFR File, Tab 3 at 8-10. The record is clear that the appellant
timely filed her appeal. To dismiss this timely filed appeal because the appellant
did not respond to the timeliness order would amount to a dismissal for failure to
prosecute. We find that such a severe sanction is not justified under the
3 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), available
at https://www.mspb.gov/publicaffairs/press_releases/Status_of_the_MSPB_During_a_
Partial_Government_Shutdown_1580906.pdf (last visited May 10, 2024).
4 The Effects of the Partial Shutdown Ending in January 2019 , Congressional Budget
Office, https://www.cbo.gov/system/files/2019-01/54937-PartialShutdownEffects.pdf
(last visited May 10, 2024).3
circumstances. See Burnett v. Department of the Navy , 71 M.S.P.R. 34, 37-38
(1996).
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.4 | Wolfe_DezaraAT-0351-19-0283-I-1__Remand_Order.pdf | 2024-05-10 | DEZARA WOLFE v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. AT-0351-19-0283-I-1, May 10, 2024 | AT-0351-19-0283-I-1 | NP |
1,503 | https://www.mspb.gov/decisions/nonprecedential/Burks_Aric_E_DC-0752-22-0458-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARIC EDLIN BURKS,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-22-0458-I-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edith Morrow Lee , Durham, North Carolina, for the appellant.
Andrew Ruskin , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed his constructive removal 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a GS-13 Human Resources Specialist with the agency
until he retired in February 2020. Initial Appeal File (IAF), Tab 1 at 4, 6,
Tab 10 at 9. The appellant has made the following allegations. Shortly after
he began employment with the agency in or around 2014, the appellant’s
then-supervisor approved a reasonable accommodation based on the appellant’s
disabilities of anxiety, depression, sleep disturbances, and appetite disturbances.
IAF, Tab 1 at 6, Tab 9 at 19. The reasonable accommodation was that the
appellant could “telework at his discretion,” and he was only required to go into
the office “if, and only when, top leadership [ ] wanted a face-to-face meeting.”
IAF, Tab 1 at 6. The appellant alleges that he was instructed by his former
supervisor not to submit “paperwork,” and he was “instructed to manage [his]
own” reasonable accommodation request. IAF, Tab 9 at 19. The appellant
alleges that his reasonable accommodation of full-time telework was endorsed by
several subsequent supervisors. Id.
In April 2019, L.B. became the appellant’s supervisor. IAF, Tab 10 at 13.
The appellant alleges he told L.B. that a reasonable accommodation was in place2
for his “mental health and physical issues.” IAF, Tab 9 at 6. In December 2019,
L.B. denied the appellant’s request to telework and ordered him to work from the
office. Id. at 19. L.B. instructed the appellant to coordinate his reasonable
accommodation request through the Office of Equity, Diversity, and Inclusion,
but the appellant did not submit a formal accommodation request to that office.
Id. It appears that the appellant reported to the office after December 2019.
IAF, Tab 11 at 16.
The appellant alleges that, on or around February 3, 2020, L.B. issued him
an unjustified memorandum of expectations, which notified him that L.B.
believed his performance was unacceptable, and a negative and unjustified
performance evaluation. IAF, Tab 9 at 4-5. The appellant asserts that L.B.’s
actions violated the agency’s policies on coaching and performance and were
intended to coerce him into retiring. Id. at 5. According to the appellant, due to
the “expiration” of his request for leave under the Family and Medical Leave Act,
he had no choice but to resign from Federal service, effective February 24, 2020.
IAF, Tab 1 at 6, Tab 9 at 8. The appellant alleges that he told L.B. numerous
times that if his reasonable accommodation was revoked, he would have no
choice but to resign. IAF, Tab 9 at 6. He generally asserts that being forced to
work in the agency’s offices exacerbated his conditions. Id. at 6-7.
After the appellant retired, he filed an equal employment opportunity
(EEO) complaint alleging that the agency discriminated against him based on his
sex, age, national origin, and disability, and retaliated against him for prior EEO
activity, when, in relevant part, it denied him a reasonable accommodation and
he was forced to retire from Federal service. IAF, Tab 10 at 5-7. On
June 7, 2022, the agency issued a final agency decision. Id. at 37. Thereafter,
the appellant filed a timely Board appeal. IAF, Tab 1. The administrative judge
issued a jurisdictional order, which notified the appellant that the Board may lack
jurisdiction over his appeal and instructed him to file evidence and argument in
support of jurisdiction. IAF, Tab 5. The appellant and the agency responded.3
IAF, Tabs 9, 11. Without holding a hearing, the administrative judge dismissed
the appeal for lack of jurisdiction, finding that the appellant failed to
nonfrivolously allege that his retirement was involuntary. IAF, Tab 15,
Initial Decision (ID) at 3-6. The appellant has filed a petition for review, and the
agency has filed a response in opposition. Petition for Review (PFR) File,
Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board lacks jurisdiction over appeals of employees’ voluntary actions.
O’Clery v. U.S. Postal Service , 67 M.S.P.R. 300, 302 (1995), aff’d, 95 F.3d 1166
(Fed. Cir. 1996) (Table); 5 C.F.R. § 752.401(b)(9). However, the Board has
recognized that employee-initiated actions that appear voluntary on their face are
not always so. Spiegel v. Department of the Army , 2 M.S.P.R. 140, 141 (1980).
The Board may have jurisdiction over such actions under 5 U.S.C. chapter 75 as
“constructive” adverse actions. To establish Board jurisdiction over a
constructive adverse action claim, the appellant must show (1) that he lacked a
meaningful choice in the matter and (2) it was the agency’s wrongful actions that
deprived him of that choice. See Bean v. U.S. Postal Service , 120 M.S.P.R. 397,
¶ 8 (2013). If the appellant makes a nonfrivolous allegation of fact establishing
Board jurisdiction, he is entitled to a hearing at which he must prove jurisdiction
by preponderant evidence. Garcia v. Department of Homeland Security , 437 F.3d
1322, 1344 (Fed. Cir. 2006) (en banc); Thomas v. Department of the Navy ,
123 M.S.P.R. 628, ¶ 11 (2016).
In dismissing this appeal for lack of jurisdiction, the administrative judge
found that, even assuming the agency violated its policies on counseling and
coaching prior to issuing the appellant a negative performance evaluation, the
appellant could have disputed or grieved the performance evaluation instead of
retiring. ID at 5. For the reasons set forth in the initial decision, we agree with
this finding. ID at 5-6 (citing Axsom v. Department of Veterans Affairs ,4
110 M.S.P.R. 605, ¶ 17 (2009) (holding that the appellant failed to establish
jurisdiction over a constructive removal claim, in part, because the appellant had
the option to challenge the alleged discriminatory conduct through the appropriate
channels, such as filing an EEO complaint, rather than resigning)).
Regarding the appellant’s claim that he was forced to retire because the
agency allegedly rescinded his reasonable accommodation of full-time telework,
the administrative judge found that, even assuming that the agency’s rescission or
denial of the appellant’s reasonable accommodation was wrongful, the appellant
failed to allege that he had no choice but to resign. ID at 6. We agree.
The appellant testified at a deposition that he did not submit a request for a
reasonable accommodation through the Office of Equity, Diversity, and Inclusion,
as instructed by his supervisor, and, instead, he resigned from Federal service.
IAF, Tab 11 at 16. He has not alleged that he took any steps to challenge the
alleged rescission of his reasonable accommodation before he resigned. Although
the appellant argues on review that he should not have been required to submit
medical evidence because his accommodation request had already been approved
years earlier, PFR File, Tab 1 at 6, he has not explained why he could not submit
the requested documentation or alleged that providing it would have been futile.
See Axsom, 110 M.S.P.R. 605, ¶ 17 (finding that the appellant failed to make a
nonfrivolous allegation that he was subjected to a constructive adverse action,
in part, because he failed to show that utilizing the agency’s EEO process would
have been futile).
The appellant’s remaining arguments on review do not provide a basis to
disturb the administrative judge’s findings. PFR File, Tab 1 at 4-8.
The appellant has not established that the documents attached to his petition for
review constitute new evidence that was unavailable before the close of the
record before the administrative judge, and thus, we have not considered them.
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980) (stating that,
under 5 C.F.R. § 1201.115, the Board generally will not consider evidence5
submitted for the first time with a petition for review absent a showing that it was
unavailable before the record was closed before the administrative judge despite
the party’s due diligence). Accordingly, we deny the appellant’s petition for
review and affirm the initial decision dismissing this appeal for lack of
jurisdiction.
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).
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.6
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 on7
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) or8
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.
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
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. 9
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 | Burks_Aric_E_DC-0752-22-0458-I-1__Final_Order.pdf | 2024-05-10 | ARIC EDLIN BURKS v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0752-22-0458-I-1, May 10, 2024 | DC-0752-22-0458-I-1 | NP |
1,504 | https://www.mspb.gov/decisions/nonprecedential/Mulligan_RobertPH-1221-22-0154-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT MULLIGAN, JR.,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-1221-22-0154-W-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel P. Meyer , Esquire, Kaya C. Massey , Esquire, Washington, D.C., for
the appellant.
Allen Brooks , Esquire, Quantico, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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;
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).
2
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 nonfrivolous allegation standard and address the appellant’s arguments
of adjudicatory error, we AFFIRM the initial decision.
BACKGROUND
The appellant worked as a GS-7 Security Guard at the agency’s Defense
Counterintelligence and Security Agency (DCSA) from August 2020, until the
agency removed him in April 2021, prior to the completion of his 2-year trial
period. Initial Appeal File (IAF), Tab 1 at 1. The agency’s stated reason for
removing the appellant was “inappropriate behavior, failure to follow supervisor
instruction, and absence without leave.” IAF, Tab 6 at 48-50.
The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging that the agency retaliated against him based on his protected disclosures,
among other alleged prohibited personnel practices. IAF, Tab 1 at 4.
Specifically, he alleged that, between August and October 2020, he repeatedly
informed his supervisors and human resources officials that the agency violated
various laws by failing to issue him a firearm. IAF, Tab 5 at 24. The appellant
also sent a letter to U.S. Senator Patrick Toomey regarding the same. Id.
In December 2020, the appellant disclosed to his first-level supervisor concerns
related to COVID-19 quarantine and safety protocols. Id. at 25. Finally, in
3
March 2021, he reported safety concerns to his first-level supervisor, apparently
because he had not been issued a firearm. Id. at 26. OSC closed its investigation
and informed the appellant of his appeal rights with the Board. IAF, Tab 1 at 4-5.
The appellant timely filed this IRA appeal alleging that the agency
retaliated against him for reporting violations of law, rule, or regulation and a
substantial and specific danger to public health and safety. IAF, Tab 5 at 61-62.
The administrative judge did not inform the appellant of his burden to establish
Board jurisdiction over his IRA appeal but ordered him to produce additional
information so as “to properly assess [the appellant’s] Whistleblower claims.”
IAF, Tab 4 at 2. In response, the appellant submitted a narrative statement and a
copy of his complaint to OSC with attachments, which included a declaration and
chronology prepared by the appellant. IAF, Tab 5 at 4-110. The administrative
judge issued a second order to the appellant instructing him to identify the exact
law, rule, or regulation he alleged that the agency violated. IAF, Tab 8. The
appellant filed several documents in response to the order. IAF, Tabs 12-13.
The agency filed a motion to dismiss. IAF, Tab 14. The next day, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 16, Initial Decision (ID) at 1, 10. He found that the
appellant exhausted his administrative remedies with OSC, but that his
disclosures were not protected under 5 U.S.C. § 2302(b)(8). ID at 6-10.
Specifically, he found that the appellant failed to establish that he reasonably
believed that the agency violated a law, rule, or regulation when it failed to arm
him while on duty, that the appellant never made a disclosure concerning the
alleged violation of COVID -19 protocols, and that the report of unsafe working
conditions did not amount to a substantial and specific danger to public health or
safety. ID at 8-10.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. On review, the appellant disagrees with the
administrative judge’s findings and argues that the administrative judge violated
4
the appellant’s due process rights by issuing the initial decision 1 day after the
agency filed its motion to dismiss and dismissing the appeal before the appellant
had the opportunity to complete discovery. PFR File, Tab 1 at 8. The agency has
filed a response, and the appellant has filed a reply. PFR File, Tabs 3, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish Board jurisdiction over an IRA appeal, an appellant must show
that he exhausted his administrative remedies before OSC2 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 in 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). 5 U.S.C. §§ 1214(a)(3), 1221(a)
(1), (e)(1); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
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. 5 U.S.C. § 2302(b)(8); Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 52.
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, the administrative judge’s
orders did not provide the appellant with proper Burgess notice. IAF, Tabs 4, 8.
However, the agency’s narrative statement in its response to this appeal cured this
error by identifying what the appellant needed to allege to establish jurisdiction
over an IRA appeal. IAF, Tab 6 at 5-6; see Harris v. U.S. Postal Service ,
112 M.S.P.R. 186, ¶ 9 (2009) (stating that an administrative judge’s failure to
2 The administrative judge determined that the appellant exhausted all of his alleged
protected disclosures. ID at 6. The parties do not dispute this finding and we discern
no basis to disturb it.
5
provide an appellant with proper Burgess notice can be cured if the agency’s
pleadings or the initial decision contain the notice that was otherwise lacking).
The initial decision also advised the appellant of his jurisdictional burden.
ID at 5-6. But it contained errors. Specifically, the administrative judge
suggested that if the appellant made nonfrivolous allegations of jurisdiction,
he would be entitled to a hearing, at which he would have the burden of proving
jurisdiction by preponderant evidence. Id. The administrative judge also
indicated that the Board could consider the agency’s uncontradicted documentary
submissions to the extent they pertain to jurisdiction. ID at 6.
An appellant meets his jurisdictional burden in an IRA appeal and is
entitled to a hearing on the merits if, after exhausting his remedy with OSC,
he makes nonfrivolous allegations that he engaged in protected activity that was a
contributing factor in a personnel action. Graves v. Department of Veterans
Affairs, 123 M.S.P.R. 434, ¶ 22 (2016). An appellant is not entitled to a
jurisdictional hearing in an IRA appeal; he is only entitled to a hearing once
jurisdiction is established, and that hearing is on the merits. Id. In deciding
whether an appellant has made nonfrivolous allegations sufficient to establish
jurisdiction, the Board may not “credit[] the agency’s interpretation of the
evidence.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1369
(Fed. Cir. 2020). To the extent that the administrative judge suggested that the
appellant was required to prove jurisdiction by preponderant evidence, was
entitled to a hearing on jurisdiction, or had to counter the agency’s evidence
concerning jurisdiction with evidence of his own, as opposed to making
nonfrivolous allegations, these statements of the law were incorrect.
We find that the administrative judge’s errors do not warrant reversal in
this instance. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984) (determining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision). The
appellant was not prejudiced by the error, because both the agency’s narrative
6
response and the initial decision contained the core information he needed. That
information was the requirement that he make nonfrivolous allegations that he
made a protected disclosure that was a contributing factor in a personnel action.
IAF, Tab 6 at 5; ID at 6. Further, we have reviewed the administrative judge’s
determinations and, applying the proper standards, we agree that the appellant
failed to establish jurisdiction, as further discussed below.
The appellant failed to nonfrivolously allege that the agency violated a law, rule,
or regulation by failing to issue him a firearm.
The administrative judge found that the appellant failed to nonfrivolously
allege that he reasonably believed that the agency violated a law, rule, or
regulation when it failed to provide him with a firearm on duty. ID at 8. The
administrative judge reasoned that there was no law, rule, or regulation requiring
the arming of agency Security Guards. Id. Although the appellant disputes this
determination, we are not persuaded. PFR File, Tab 1 at 9-10.
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 listed in 5 U.S.C. § 2302(b)
(8). Pridgen, 2022 MSPB 31, ¶ 52. In support of his allegation that he
reasonably believed that the agency was required to arm him, the appellant
referenced Department of Defense Instruction (DODI) 5525.15, his position
description, and a Security Guard vacancy announcement. IAF, Tab 5 at 62, 77,
Tab 10. Because it was not clear that DODI 5525.15 created such a requirement,
the administrative judge ordered the appellant to identify the exact provisions
stating that a Security Guard must be equipped with a weapon while on duty.
IAF, Tab 8 at 1-2. The appellant did not respond to that portion of the
administrative judge’s order. IAF, Tab 12 at 4-5. The administrative judge found
that the appellant failed to identify any provision within DODI 5525.15, his
7
position description, or the vacancy announcement that required agency Security
Guards to be armed. ID at 8. Rather, he reasoned that they merely required that
incumbents be qualified to carry and use firearms. Id. The appellant has not
challenged these findings on review, and we see no reason to disturb them.
The appellant also quoted Army Regulation 190-56, Section 6-14(a) to
support his reasonable belief concerning this disclosure. IAF, Tab 12 at 4, 31;
PFR File, Tab 1 at 8. That regulation states, in relevant part, that
“security guards will be provided with the weapons, ammunition and security
equipment needed to perform their assigned duties.” IAF, Tab 12 at 4, 31;
PFR File, Tab 1 at 8. The administrative judge found that a disinterested
observer would not have reasonably concluded that the agency violated this
regulation by not supplying a firearm. ID at 8. He explained that the regulation
applied only to the Department of the Army, and not to the Department of
Defense. Id. On review, the appellant argues that he reasonably believed that the
Army regulation applied to him because the patch worn on his uniform, and worn
generally by agency staff, said “Department of the Army.” PFR File, Tab 1 at 9.
He has submitted copies of what he represents were his uniform patches. Id. at 9,
14-15. Even considering this new argument for jurisdictional purposes, we still
find that the appellant failed to nonfrivolously allege that he reasonably believed
that Security Guards were required to carry firearms.3
The appellant’s reading of the Army Regulation is not reasonable. The
vacancy announcement and position description identified the DCSA as the
employing agency. IAF, Tab 5 at 33, Tab 10 at 5. The position description
explicitly describes DCSA as “a separate Agency of the Department of Defense
(DoD) under the direction, authority, and control of the Under Secretary of
Defense for Intelligence.” IAF, Tab 5 at 3. Further, Executive Order 13869,
3 The appellant did not raise this argument or submit this evidence below. We have
considered the appellant’s new argument and evidence to the extent they implicate the
Board’s jurisdiction, because jurisdiction may be raised at any time during Board
proceedings. See Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016).
8
which established the DCSA, makes clear that the agency is “[s]ubject to the
authority, direction, and control of the Secretary of Defense.” Exec. Order No.
13869, § 2(c)(i), 84 Fed. Reg. 18125, 18125-26 (2019). No reasonable person in
the appellant’s position, having available such unambiguous information that he
was employed by the DCSA, could believe that the fact that he wore a
Department of the Army badge changed his employing agency. So, we agree with
the administrative judge that the appellant failed to nonfrivolously allege a
reasonable belief that Army Regulation 190-56, Section 6-4(a), applied to him.
The appellant failed to nonfrivolously allege that his supervisor violated a law,
rule, or regulation when she initially informed the appellant that “he could not
quarantine [after a secondary exposure to COVID-19] for staffing reasons.”
The appellant argued below and on review that the agency violated
COVID-19 safety protocols when it initially denied his request to quarantine for
14 days after he worked with a coworker who had been exposed to COVID-19,
even though the coworker had not tested positive for the virus. IAF, Tab 5 at 6;
PFR File, Tab 1 at 7. In support of this belief that quarantining was required, the
appellant pointed to the Centers for Disease Control (CDC) guidance, which
“recommends a quarantine period of 14 days” following contact with persons
“infected” with COVID-19. IAF, Tab 12 at 4-5, 54-55. The administrative judge
found that the CDC guidelines were not mandatory, that they only concerned
exposure to someone who had tested positive for COVID-19, and that the
appellant was never forced to report to work during the 14-day quarantine
period.4 ID at 9. The appellant does not dispute these findings and we see no
reason to disturb them.
Further, the administrative judge correctly found that the appellant never
made a disclosure concerning the alleged violation of COVID-19 protocols.
4 Although the initial decision cited the reasonable belief test to determine whether the
appellant made a protected disclosure, the administrative judge does not appear to have
applied the test to this disclosure. ID at 7-9. We therefore modify the initial decision
to clarify the administrative judge’s findings according to this standard.
9
ID at 8. He reasoned that the appellant merely asked his supervisor “to contact
her supervisor for further direction” on whether he should quarantine after
working with the coworker. ID at 8-9. The appellant does not dispute the
administrative judge’s findings in this regard, and we discern no reason to disturb
them. PFR File, Tab 1 at 10, Tab 4 at 7-8. Moreover, when, as here, a disclosure
concerns a potential violation of law, as opposed to an event that has already
taken place, an appellant must prove that he reasonably believed the potential
wrongdoing was real and immediate. Covington v. Department of the Interior ,
2023 MSPB 5, ¶ 38. The appellant has not alleged that, at the time he asked his
supervisor for further direction, he reasonably believed that his supervisor would
continue to insist he work despite his potential exposure.
Instead, the appellant argues that his supervisor’s response, i.e., that the
appellant “could not quarantine for staffing reasons,” was itself a violation and
that the supervisor’s retraction of that statement did not invalidate his disclosure.
PFR File, Tab 1 at 10. Again, the appellant has not alleged that he made any
disclosure regarding the COVID -19 protocols, and he has not alleged that
he disclosed that his supervisor’s statement violated the law. Therefore, we agree
that the appellant failed to nonfrivolously allege that he made a protected
disclosure regarding the COVID-19 protocols.
The appellant failed to nonfrivolously allege that the agency’s failure to provide
him with a firearm amounted to a substantial and specific danger to public health
or safety.
The appellant alleged below that he expressed to his supervisor that his
working conditions were unsafe because the agency failed to equip him with a
firearm. IAF, Tab 5 at 7, 25, 77. The administrative judge found that the
appellant did not disclose a substantial and specific danger to public health or
safety based on his concerns of a potential future incident in which he might be
unable to sufficiently protect agency employees from bad actors. ID at 9-10.
10
In support of this finding, the administrative judge reasoned that the likelihood of
harm was speculative rather than substantial and specific. ID at 10.
The Board has explained that disclosures regarding danger to the public
must be both substantial and specific to be protected. Schoenig v. Department of
Justice, 120 M.S.P.R. 318, ¶ 10 (2013). Factors to be considered in determining
whether a disclosed danger is sufficiently substantial and specific to be protected
include the likelihood of harm, when the alleged harm may occur, and the
potential consequences of the harm. Id. Disclosure of an imminent event is
protected, but disclosure of a speculative danger is not. Id.
On review, the appellant argues that shootings on various military bases in
2009, 2013, and 2014 give rise to a likelihood of impending harm. PFR File,
Tab 1 at 10-11. In Mogyorossy v. Department of the Air Force , 96 M.S.P.R. 652,
¶ 16 (2004), the Board found that an appellant’s disclosure did not identify a
substantial and specific danger in similar circumstances. Specifically,
the appellant alleged that, due to the security threat after September 11, 2001,
Security Guards’ lives and the lives of those they protected could have been in
danger if they were attacked because their weapons were not fully loaded. Id.
The Board reasoned that the appellant’s disclosure involved speculation that there
could possibly be danger at some point in the future, which was insufficient.
Id., ¶ 17. Here, we find that the appellant’s concern of unsafe working conditions
is indistinguishable from Mogyorossy and, therefore, too speculative to be
protected. Id. We are not persuaded by the appellant’s argument that, because
shootings occurred on military bases in 2009, 2013, and 2014, he reasonably
believed that there was an imminent risk of violence in 2021 that could be
lessened by giving him a firearm. Thus, we agree with the administrative judge
that the appellant failed to nonfrivolously allege that he disclosed a substantial
and specific danger to public health or safety.
11
The administrative judge did not violate the appellant’s due process rights.
The appellant argues on review that the administrative judge violated his
due process rights by issuing the initial decision 1 day after the agency filed its
motion to dismiss, which was 9 days before the appellant’s response was due.
PFR File, Tab 1 at 8. A party typically has 10 days to object to an opposing
party’s motion. IAF, Tab 2 at 3-4; 5 C.F.R. § 1201.55(b). Here, because the
agency’s motion to dismiss was filed 1 day prior to the issuance of the initial
decision, it is not clear to us that the administrative judge was aware of the
agency’s motion when he dismissed the appeal. He did not reference the
agency’s motion in the initial decision, nor indicate that he was granting any such
motion.
Nonetheless, it is error when, as here, an administrative judge issues
an initial decision without notifying the parties of the date when the record on
jurisdiction will close. IAF, Tab 2 at 2-3, Tabs 4, 7-8; Fidler v. U.S. Postal
Service, 53 M.S.P.R. 440, 442, 444 (1992). An administrative judge’s procedural
error is of no legal consequence unless it is shown to have adversely affected a
party’s substantive rights . Karapinka v. Department of Energy , 6 M.S.P.R. 124,
127 (1981). The appellant had the opportunity to file the instant petition for
review disputing both the initial decision and the agency’s motion to dismiss, and
we have considered all of his arguments and evidence on review. Therefore, the
administrative judge’s error does not provide a basis to reverse the initial
decision.
The appellant also argues that the administrative judge violated his due
process rights by dismissing the appeal before he had the opportunity to complete
discovery. PFR File, Tab 1 at 8. While the appellant asserts that “discovery was
in progress,” he does not indicate whether he made discovery requests to the
agency, or if it owed him responses. He also has not indicated what information
he was seeking, and there is no motion to compel in the record. Therefore,
we cannot discern whether any alleged error by the administrative judge
12
prejudiced the appellant’s rights. See Searcy v. Department of Commerce ,
114 M.S.P.R. 281, ¶ 14 n.* (2010) (concluding that an administrative judge’s
failure to rule on an appellant’s motions regarding discovery was harmless
because the appellant did not indicate how the information contained in the
discovery sought was relevant and material to the dispositive jurisdictional issue).
In the absence of evidence of such prejudice, we discern no reason to reverse the
initial decision.
Accordingly, we affirm the administrative judge’s determination that the
Board lacks jurisdiction over this appeal, as modified above.
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
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 obtain
14
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. | Mulligan_RobertPH-1221-22-0154-W-1__Final_Order.pdf | 2024-05-10 | null | PH-1221-22-0154-W-1 | NP |
1,505 | https://www.mspb.gov/decisions/nonprecedential/Bailey-EL_RaushaanahDC-315H-20-0122-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAUSHAANAH BAILEY-EL,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-315H-20-0122-I-1
DATE: May 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Raushaanah Bailey-EL , Baltimore, Maryland, pro se.
Stephanie Sneed , Esquire, Bethesda, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant submits documents that are not in the record
below and argues the merits of the agency’s decision to terminate his appointment
but fails to provide evidence that the Board has jurisdiction over his matter.
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
clarify that the appellant was subject to a 2 -year probationary period, we
AFFIRM the initial decision.
To the extent that the administrative judge found that the appellant must
have completed a 1 -year probationary period to obtain chapter 75 appeal rights,
that finding was in error. At the time of the appellant’s appointment to his
position, an individual appointed by the Department of Defense to a permanent
competitive service position was not an “employee” with chapter 75 appeal rights
unless he completed a 2 -year probationary period or 2 years of current continuous
service. 5 U.S.C. § 7511(a)(1)(A)(ii) (2016); 10 U.S.C. § 1599e(a), (b)(1)(A), (d)
(repealed 2022); Bryant v. Department of Army , 2022 MSPB 1, ¶¶ 8-9.1
However, because the administrative judge’s error does not affect the outcome in
this case, it is not a basis to grant review. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is
1 On December 27, 2021, President Biden signed into law the National Defense
Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L. No. 117-81, 135 Stat.
1541. The 2022 NDAA repealed the 2-year probationary period for DOD appointments
made on or after December 31, 2022, and replaced it with a 1 -year probationary period.
Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. That change does not affect the
outcome of this appeal.2
not prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
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).
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
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.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
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
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 | Bailey-EL_RaushaanahDC-315H-20-0122-I-1__Final_Order.pdf | 2024-05-10 | null | DC-315H-20-0122-I-1 | NP |
1,506 | https://www.mspb.gov/decisions/nonprecedential/Hendrix_AprilDC-0845-22-0584-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
APRIL HENDRIX,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0845-22-0584-I-1
DATE: May 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amanda Smith , Esquire, Buffalo, New York, for the appellant.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as untimely filed without good cause shown. On petition for
review, the appellant argues that the administrative judge erred in determining
that she was attempting to raise the same detrimental reliance issue in this appeal
as she did in an earlier appeal. Petition for Review (PFR) File, Tab 1 at 9-11.
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).
She also argues that the instant appeal concerns the Office of Personnel
Management’s (OPM’s) July 2022 correspondence, rather than its August 2018
reconsideration decision about her annuity. Id. at 10. Finally, the appellant
argues that even if this were an appeal of OPM’s August 2018 reconsideration
decision, she has good cause for her untimeliness.2 Id. at 11-15, 18-23.
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 The appellant also suggests that if we are not persuaded by her arguments about the
instant appeal, we should reopen a prior appeal she filed. PFR File, Tab 1 at 15-16. An
administrative judge dismissed that prior appeal in 2019 at the appellant’s request, and
neither party filed a petition for review. Hendrix v. Office of Personnel Management ,
MSPB Docket No. DC-844E-18-0846-I-1, Initial Appeal File, Tab 15, Initial Decision.
If the appellant wishes to pursue that prior appeal, she should file a petition for review
of the administrative judge’s initial decision in that appeal. We make no findings at
this time about the timeliness of any such petition.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 | Hendrix_AprilDC-0845-22-0584-I-1__Final_Order.pdf | 2024-05-09 | APRIL HENDRIX v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0845-22-0584-I-1, May 9, 2024 | DC-0845-22-0584-I-1 | NP |
1,507 | https://www.mspb.gov/decisions/nonprecedential/Breedlove_RachelAT-1221-19-0402-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RACHEL BREEDLOVE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-19-0402-W-1
DATE: May 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rachel Breedlove , Rock Hill, South Carolina, pro se.
Brandi M. Powell , Esquire, New Orleans, Louisiana, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
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)
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
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.
BACKGROUND
The appellant is a GS-13 Lead Human Resources Specialist (Classification)
in the Consolidated Classification Unit (CCU) of the agency’s Veterans
Integrated Service Network 16. Initial Appeal File (IAF), Tab 1 at 1, 13, 425.
On October 24, 2018, the appellant’s supervisor issued the appellant a written
admonishment based on the way she comported herself during an October 1, 2018
meeting, describing her tone as “demeaning, confrontational, hostile and
intimidating.” Id. at 29-30. On December 7, 2018, the appellant received her
evaluation for the 2017 -2018 performance year, with a summary rating of “fully
successful.” Id. at 411-15; 972.
The appellant filed a complaint with the Office of Special Counsel (OSC),
alleging that the admonishment and the performance rating were in retaliation for
protected disclosures. Id. at 646-57, 841-44. Before OSC issued a decision on
the appellant’s complaint, but after more than 120 days had elapsed, she filed the
instant IRA appeal. Id. at 2-7; see 5 U.S.C. § 1214(a)(3)(B).
After a hearing, the administrative judge issued an initial decision denying
the appellant’s request for corrective action on the merits. IAF, Tab 41, Initial
Decision (ID). He found that the appellant had exhausted her administrative2
remedies before OSC and that she proved by preponderant evidence that she made
protected disclosures during the October 1, 2018 staff meeting, which were a
contributing factor in the admonishment and the performance evaluation. ID
at 21-23. Nevertheless, the administrative judge found that the agency proved by
clear and convincing evidence that it would have taken the same actions even
absent the appellant’s disclosures. ID at 24-28.
The appellant has filed a petition for review, disputing the administrative
judge’s findings and his analysis of the agency’s affirmative defense. Petition for
Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
It is undisputed that the appellant proved her case in chief, i.e., that she
made protected disclosures that were a contributing factor in two personnel
actions, and that she exhausted her administrative remedies with OSC. ID
at 21-24; see Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
The issue at this stage of the proceedings is whether the agency proved its
affirmative defense. Under 5 U.S.C. § 1221(e), if the appellant proves that her
protected disclosure was a contributing factor in a personnel action, the Board
will order corrective action unless the agency proves by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
protected activity. Salerno, 123 M.S.P.R. 230, ¶ 5.
Considering the evidence as a whole, we find the agency proved by clear
and convincing evidence that it would have admonished the appellant for her
conduct at the October 1, 2018 staff meeting, and assigned her the same
performance rating, even in the absence of her protected activity. ID at 27-28.
This is especially so considering the administrative judge’s demeanor-based
credibility determinations and her supervisor’s explicit denial that her
admonishment and performance rating had anything to do with her protected3
activity. Hearing Recording, Day 1, Track 3 at 19:35.2 We further find that the
appellant’s other arguments on petition for review, including assertions regarding
the contents of the electronic case file, the agency’s alleged violation of her First
Amendment rights, and challenges to various rulings and findings by the
administrative judge, provide no basis for disturbing this result. See Van Ee v.
Environmental Protection Agency , 64 M.S.P.R. 693, 699 (1994) (first Amendment
claims may not be heard in the context of an IRA appeal); 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 where she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
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.
2 Although we disagree with the administrative judge’s finding that the appellant’s
supervisor lacked a substantial motive to retaliate because of the appellant’s
whistleblowing activity, we conclude that this circumstance is outweighed by the other
factors and evidence in this case.
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
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 | Breedlove_RachelAT-1221-19-0402-W-1__Final_Order.pdf | 2024-05-09 | RACHEL BREEDLOVE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-19-0402-W-1, May 9, 2024 | AT-1221-19-0402-W-1 | NP |
1,508 | https://www.mspb.gov/decisions/nonprecedential/Swearengen_Marcus_L_DA-0752-20-0450-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARCUS L. SWEARENGEN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-20-0450-I-2
DATE: May 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel J. Gamino , Esquire, Oklahoma City, Oklahoma, for the appellant.
Quentin Sanders , Esquire, Fort Sill, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s charges, affirmed the agency’s removal action, and found
that the appellant did not prove his affirmative defenses. For the reasons set forth
below, we GRANT the appellant’s petition for review. We REVERSE the initial
decision with respect to the finding sustaining the agency’s first charge and
MODIFY the initial decision to mitigate the appellant’s removal to a demotion to
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 next lower-graded, non -supervisory, non-work leader position, with the least
reduction in grade and pay. We otherwise AFFIRM the initial decision.
BACKGROUND
The appellant was an Electronics Mechanic Leader, WL-10, in the agency’s
Radar Shop in Fort Sill, Oklahoma. Swearengen v. Department of the Army ,
MSPB Docket No. DA-0752-20-0450-I-1, Initial Appeal File (IAF), Tab 9 at 15.
Although the Electronics Mechanic Leader is not a supervisory position, the
appellant was in a position of authority, because he was responsible for relaying
supervisory instructions to the subordinate employees and ensuring that they were
complying with them. Id. at 17-18.
On June 23, 2020, the agency removed the appellant based on two charges.
IAF, Tab 9 at 15, 44-47, Tab 91 at 5-7. The first charge, inappropriate remarks,
was based on a single specification alleging that, on March 12, 2020, the
appellant called S.B.,2 a subordinate employee, “stupid,” and that the appellant
followed S.B. into the bay area, calling him “‘stupid’ repeatedly in a loud,
elevated voice.” IAF, Tab 91 at 5. The second charge, creating a disruption in
the workplace, was also based on the events of March 12, 2020, alleging that the
appellant created a disruption by repeatedly calling S.B. “stupid” and
“continu[ing] to yell at [S.B.] in the bay area, [where] other employees heard
[him] making a disruption.” Id.
The appellant filed an appeal of his removal with the Board and, after
holding a hearing, the administrative judge issued an initial decision sustaining
both charges and the removal. Swearengen v. Department of the Army , MSPB
Docket No. DA-0752-20-0450-I-2, Appeal File (I-2 AF), Tab 53, Initial Decision
(ID). She credited the testimony of S.B., finding that the agency proved that the
appellant repeatedly yelled at S.B. that he was “stupid,” and that other employees
heard him making “noticeable noise” and creating a disruption. ID at 14-19. The
2 Because the subordinate employees have similar position titles, we identify them using
initials.2
administrative judge also found that the appellant failed to prove any of his
affirmative defenses, to include claims of race discrimination, equal employment
opportunity (EEO) retaliation, and hostile work environment based on race and
prior EEO activity,3 as well as his claims of due process violations and harmful
procedural error. ID at 20-32. Finally, the administrative judge found that the
agency established nexus, and that the selected penalty of removal was
reasonable. ID at 32-35.
The appellant has filed a petition for review arguing, among other things,
that the agency’s evidence was insufficient to prove its charges, the
administrative judge erred in failing to sanction the agency for repeated bad acts,
and the agency violated 5 C.F.R. § 752.404 by selecting a deciding official who
was not neutral.4 Petition for Review (PFR) File, Tab 1 at 9-34. The agency has
3 On review, the appellant does not challenge the administrative judge’s findings that he
failed to establish his Title VII claims. While we discern no basis to disturb her
findings, we note that the administrative judge used the analytical 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, in finding
that the appellant failed to establish that either his race or prior EEO activity was a
motivating factor in the agency’s removal action. ID at 20-24. Following the issuance
of the initial decision, the Board issued Pridgen, 2022 MSPB 31, ¶ 25, which overruled
parts of Savage, and clarified the proper analytical framework to be applied to
affirmative defenses of Title VII discrimination and retaliation. 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 or retaliation was a “but -for”
cause of the agency’s decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29 -33.
4 With his petition for review, the appellant attaches a copy of his supplemental motion
to impose sanctions, PFR File, Tab 1 at 39-60, which is already contained in the record,
IAF, Tab 36, as well as an email from the agency resending discovery documents, and
an email from the appellant expressing discontent to the administrative judge regarding
a statement she made regarding the parties’ liability while ordering a mandatory
settlement conference, PFR File, Tab 1 at 52-53, 55-56. The appellant has not shown
that these documents were unavailable prior to the close of the record below, and has
not explained the relevance of these documents to the dispositive issues in his appeal.
Thus, they provide no basis to disturb the initial decision. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (explaining 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
filed a response in opposition to the appellant’s petition for review, and the
appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, in an adverse action appeal, an agency must prove its charge by
a preponderance of the evidence, establish a nexus between the action and the
efficiency of the service, and establish that the penalty it imposed is within the
tolerable bounds of reasonableness. Thomas v. Department of the Army ,
2022 MSPB 35, ¶ 17. Therefore, an agency must prove all of the elements of the
substantive offense it charged against the appellant and a failure to do so will
cause the Board to not sustain the charge. King v. Nazelrod , 43 F.3d 663, 666
(Fed. Cir. 1994). Furthermore, the Board adjudicates an agency’s charge as it is
described in the agency’s proposal and decision notices. Stuhlmacher v.
U.S. Postal Service, 89 M.S.P.R. 272, ¶ 14 (2001); Rackers v. Department of
Justice, 79 M.S.P.R. 262, 276 (1998), aff’d, 194 F.3d 1336 (Fed. Cir. 1999)
(Table).
We address the agency’s first charge, inappropriate remarks, finding that
the weight of the evidence does not establish that the appellant called S.B.
“stupid.” Next, although the agency failed to prove that the appellant called S.B.
“stupid,” we nevertheless find that the agency proved its second charge, creating
a disruption in the workplace, because supporting evidence establishes that the
appellant and S.B. were engaged in a heated exchange that created noticeable
noise that other employees heard. We then find that the appellant failed to
establish that the agency committed any error by selecting the deciding official.
We further find that the appellant did not establish that the administrative judge
committed an abuse of discretion by failing to sanction the agency.
Finally, we consider whether removal is within the tolerable bounds of
reasonableness based on the single sustained charge of creating a disruption in the
workplace. As set forth in detail below, we do not find that removal is reasonable4
in light of the circumstances, and thus, we mitigate the removal action to a
demotion to the next lower-graded, non-supervisory, non-work leader position
with the least reduction in grade and pay.
The first specification cannot be sustained because the agency failed to prove that
the appellant called S.B. “stupid.”
In sustaining the first charge, inappropriate remarks, the administrative
judge credited the testimony of S.B., finding that the appellant called him
“stupid,” repeatedly and loudly. ID at 15, 18-19. On review, the appellant
challenges the administrative judge’s credibility determination, arguing that S.B.
holds animosity towards him, and S.B. was the only individual who testified that
the appellant called him stupid. PFR File, Tab 1 at 21-23. As discussed below,
we agree with the appellant that the weight of the evidence does not establish that
he called S.B. “stupid,” and thus, the first charge cannot be sustained.
To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version she believes, and explain in detail why she found the chosen
version more credible, considering such factors as: (1) the witness’s opportunity
and capacity to observe the event or act in question; (2) the witness’s character;
(3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of
bias; (5) the contradiction of the witness’s version of events by other evidence or
its consistency with other evidence; (6) the inherent improbability of the
witness’s version of events; and (7) the witness’s demeanor. Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987) . The Board must defer to
an administrative judge’s findings regarding credibility when, as here, they are
based, either explicitly or implicitly, on observing the demeanor of witnesses
testifying at a hearing, and the Board may overturn such determinations only
when it has “sufficiently sound” reasons for doing so. Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2022). Specifically, the Board has found
that it does not owe deference to an administrative judge’s credibility5
determinations when her findings are incomplete, inconsistent with the weight of
the evidence, and do not reflect the record as a whole. Thomas, 2022 MSPB 35,
¶ 8.
After extensive review of the record, we find that there are sufficiently
sound reasons to overturn the administrative judge’s determination that S.B. was
more credible than the appellant. The administrative judge stated that she found
S.B. to be more credible than the appellant because his testimony was “more
probable,” and she “found no indication that [S.B.] harbored any malice toward
the appellant. . . .” ID at 19. First, we do not find S.B.’s testimony to be more
probable than the appellant’s testimony denying that he called S.B. “stupid.”
April 28, 2021 Hearing Transcript (HT) at 41 (testimony of the appellant). As the
appellant notes, S.B. was the only individual who alleged that the appellant called
him “stupid.” PFR File, Tab 1 at 21. No witness corroborated this claim,
including the three individuals who S.B. initially named as witnesses to the
incident. HT at 209-11 (testimony of the proposing official). The lack of
witnesses is odd, especially given that S.B. testified that the appellant is
“normally a very loud person” whose “voice does carry,” and that during the
March 12, 2020 incident, the appellant was yelling “pretty loud,” so much so that
his voice “echoed . . . inside the shop bay,” where other employees were
“scattered” about. Id. at 157, 159 (testimony of S.B.). Given this testimony, we
find it to be highly improbable that, had the appellant yelled “stupid” loudly and
repeatedly at S.B. as alleged, there is not one individual other than S.B. who
could attest to that fact.
Next, although the administrative judge found that there was “no indication
that [S.B.] harbored any malice towards the appellant,” we find that there is
significant evidence in the record to the contrary. ID at 19. First, it is undisputed
that the appellant reported S.B. to management several times for various
indiscretions, including tardiness and sleeping at work. HT at 33-34, 53-54
(testimony of the appellant), 165-67 (testimony of S.B.), 223-24 (testimony of the6
proposing official). In fact, the appellant had taken pictures of S.B. sleeping at
his desk, and provided them to management, behavior for which S.B. received
written counseling. Id. at 33-34 (testimony of the appellant), 167, 171 (testimony
of S.B.), 223-24 (testimony of the proposing official). Additionally, there is a
documented history of tension between the appellant and S.B., involving several
run-ins and heated exchanges throughout the years. Id. at 53-57 (testimony of the
appellant), 169 (testimony of S.B.), 251-54 (testimony of A.J.). Even S.B.
admitted that he was “not [the appellant’s] biggest fan.” Id. at 169 (testimony of
S.B.). Finally, we note that S.B. now occupies the Electronics Mechanic Leader
position, i.e., the appellant’s former position. Id. at 181 (testimony of S.B.).
Thus, S.B. had several reasons to be less than candid in his testimony regarding
the appellant.
In conclusion, because only S.B. testified that the appellant called him
“stupid,” his testimony alone must be adequate to establish, by preponderant
evidence, the misconduct alleged in the agency’s first charge. For the reasons set
forth above, we do not find S.B.’s testimony alone to be sufficiently persuasive to
meet the preponderant evidence standard. Accordingly, we find that the agency
failed to prove its first charge, inappropriate remarks.
The agency proved its second charge by preponderant evidence.
Because there is corroborating evidence establishing that S.B. and the
appellant engaged in a loud exchange that “created noticeable noise” which was
overheard by other employees, we agree with the administrative judge that the
agency proved its second charge, creating a disruption in the workplace.5
5 The narrative under the second charge included an allegation that the appellant “called
[S.B.] ‘stupid’ repeatedly” on March 12, 2020. IAF, Tab 91 at 5. Although, in
adjudicating the first charge, we have found that the agency failed to prove that the
appellant called S.B. “stupid” on March 12, 2020, the creating a disruption in the
workplace charge more broadly alleges that the appellant spoke in a “loud, elevated
voice and continued to yell” at S.B., and that other employees heard the disruption as
they exited the bay area. Id. For the reasons explained above, the agency established
the essence of the charge, and the fact that it did not prove that the appellant used the
term “stupid” while creating the disruption is not a basis upon which to find that the7
ID at 18-19. First, A.J., a Supply Clerk in the Radar Shop, testified that he was
standing about 25 or 30 feet away when he heard “noise,” which he later
identified as the appellant and S.B. “hav[ing] words.” HT at 239, 258 (testimony
of A.J.); IAF, Tab 9 at 21, 56. He also testified that the incident was disruptive
because it “hindered further operations going forward,” and that people spent
“probably about a good hour trying to figure out why and what caused [the
incident].” HT at 243-44 (testimony of A.J.). Similarly, T.F., an Electronics
Mechanic in the Radar Shop, confirmed in a written statement that he “heard
some noise coming from the bay.” IAF, Tab 9 at 21, Tab 10 at 69. Accordingly,
we agree with the administrative judge and find that the agency proved its second
charge by preponderant evidence.
To the extent that the appellant argues that there was no disruption to the
workplace because no work was delayed or disrupted, his argument is
unpersuasive. PFR File, Tab 1 at 22-24, 29. A loud exchange between two
employees, which draws the attention of others away from their work, constitutes
a disruption in the workplace. As explained by A.J., the exchange “hindered
further operations” because “any technician not performing their
mission . . . hinders the instructors from instructing the students. And it is
paramount that [the workers] maintain the equipment and [their] operational
status at all times.” HT at 243-44 (testimony of A.J.). Thus, we find that the
administrative judge correctly sustained the second charge. ID at 19.
The appellant failed to establish that the agency’s selection of the deciding
official constituted harmful procedural error.
Under 5 U.S.C. § 7701(c)(2)(A), the Board cannot sustain an agency’s
decision if the employee “shows harmful error in the application of the agency’s
procedures in arriving at such decision.” Stephen v. Department of the Air Force ,
charge was not proven. See, e.g., Hicks v. Department of the Treasury , 62 M.S.P.R. 71,
74 (1994) (stating that an agency is required to prove only the essence of the charge and
need not prove each factual specification supporting the charge), aff’d, 48 F.3d 1235
(Fed. Cir. 1995) (Table).8
47 M.S.P.R. 672, 681 (1991). Reversal of an action for harmful error is
warranted when the procedural error, whether regulatory or statutory, likely had a
harmful effect upon the outcome of the case before the agency. Id. In order to
prove harmful error under the statute and the Board’s regulations, an appellant
must “prove that any procedural errors substantially prejudiced his rights by
possibly affecting the agency’s decision.” Id. (quoting Cornelius v. Nutt ,
472 U.S. 648, 661 (1985)).
Here, the appellant alleges that the agency committed harmful error when it
appointed a deciding official who had an existing negative opinion of him based
on interactions that occurred prior to the issuance of the proposed removal.6
PFR File, Tab 1 at 12-13, 30. We do not discern any evidence that the deciding
official had any preconceived notions about the appellant, or ill feelings towards
him based on events prior to the misconduct at issue. However, even assuming
that the deciding official did harbor an uncomplimentary opinion of the appellant
based on a previous interaction, the appellant has not established that any rule or
regulation prohibits the agency from selecting a deciding official with
an unfavorable opinion of an employee. See Franco v. Department of Health and
Human Services , 32 M.S.P.R. 653, 658 (1987) (explaining that there is no general
proscription of the appointment of a deciding official who is familiar with the
facts of the case and has expressed a predisposition contrary to the appellant’s
interests), aff’d, 852 F.2d 1292 (Fed. Cir. 1988) (Table); see also Teichmann v.
Department of the Army , 34 M.S.P.R. 447, 452 (1987) (finding no basis to vitiate
an agency’s proceedings when there was no evidence that any animus on the
deciding official’s part was a factor in his decision to remove the appellant),
aff’d, 854 F.2d 1327 (Fed. Cir. 1988) (Table). Furthermore, the appellant has
6 It appears that the prior interaction giving rise to the allegedly negative opinion was a
March 3, 2020 meeting between the appellant and the deciding official, in which the
deciding official notified the appellant of the results of an internal investigation into
allegations of misconduct, discrimination, and a hostile work environment, which were
made by the appellant. HT at 132-36 (testimony of the appellant); April 29, 2021
Hearing Transcript at 58-59, 69-74 (testimony of the deciding official). 9
produced no evidence that the selection of a deciding official who had no opinion
of him prior to serving as the deciding official would have resulted in a different
outcome. Thus, we agree with the administrative judge that there is no evidence
that the agency committed harmful procedural error.7 ID at 31-32.
There is no evidence that the administrative judge abused her discretion.
On review, the appellant argues that the administrative judge abused her
discretion by, among other things, failing to sanction the agency for allegedly
engaging in repeated bad acts. PFR File, Tab 1 at 10-19. The appellant alleges
that, by denying his multiple requests for sanctions, the administrative judge
“denied the [a]ppellant the effective assistance of counsel and forced the
[a]ppellant to trial with very incomplete discovery responses. . . .”8 Id. at 16.
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. See Sanders, 114 M.S.P.R. 487,
¶ 10; 5 C.F.R. § 1201.115(c). First, the appellant has presented no evidence that
the administrative judge committed any error in her handling of the proceedings,
as the appellant has not established that his motions should have been granted.
7 To the extent that the appellant argues that the selection of the allegedly biased
deciding official constitutes a due process violation, as found by the administrative
judge, the appellant did not establish that his due process rights were violated, as he
received notice of the charges, a meaningful opportunity to respond, and he has
produced no evidence that the deciding official considered any ex parte communication.
ID at 30-31; see Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1376
(Fed. Cir. 1999) (explaining that procedural due process guarantees are not met if the
employee has notice of only certain charges or portions of the evidence and the deciding
official considers new and material information); see also Pumphrey v. Department of
Defense, 122 M.S.P.R. 186, ¶ 6 (stating that minimum due process of law requires prior
notice and a meaningful opportunity to respond).
8 To the extent that the appellant argues that denial of discovery constituted a violation
of his due process rights, PFR File, Tab 1 at 16-18, the appellant received minimum due
process, as he received notice of the charges and a meaningful opportunity to respond,
see Pumphrey, 122 M.S.P.R. 186, ¶ 6.10
For instance, the appellant requested that the agency be sanctioned for failing to
provide documents in response to his discovery requests before the administrative
judge even ruled on his outstanding motions to compel. IAF, Tab 111. In total,
the appellant filed at least six motions for sanctions, accusing the agency of
engaging in a wide range of nefarious conduct, including, among other things,
tampering with evidence and harassment, without sufficient evidence to support
such strong accusations.9 IAF, Tabs 127, 136; I-2 AF, Tabs 6-7, 9, 21. Thus, the
appellant has not shown that his requests for sanctions were proper, or that the
administrative judge erred in denying them.
Regardless of the propriety of the appellant’s motions, the administrative
judge addressed them thoroughly below. The record establishes that
she addressed the parties’ numerous motions in scheduled status conferences,
memorialized her findings and rulings in written orders, and provided the
parties with an explanation of her rulings and the opportunity to object.
IAF, Tab 122; I-2 AF, Tab 35. While the appellant may not agree with the
rulings, his disagreement alone is insufficient to justify a finding of abuse of
discretion. See Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133-34
(1980) (explaining that mere disagreement with an administrative judge’s rulings
does not warrant review). Accordingly, there is no basis to disturb the initial
decision on the grounds of abuse of discretion. See Davis v. Department of
Veterans Affairs , 106 M.S.P.R. 654, ¶ 6 (2007) (stating that there is no basis to
disturb an initial decision when the appellant’s challenges to the administrative
judge’s procedural rulings were nothing more than mere disagreement).
9 The appellant also filed two motions for a directed verdict, one alleging that the
agency violated his due process rights because the deciding official should have been
disqualified due to his adverse opinion of the appellant, I-2 AF, Tab 3, and the other
requesting a directed verdict as a sanction for the agency’s purported acts of
“stonewalling,” I-2 AF, Tab 7. As the administrative judge correctly found, the Board
lacks the authority to grant a directed verdict. I-2 AF, Tab 35 at 2. 11
The appellant’s removal is mitigated to a demotion.
As an initial matter, we concur with the administrative judge that, because
the appellant’s misconduct occurred on duty, nexus is established. ID at 32.
Therefore, we consider the reasonableness of the agency’s penalty in light of the
one sustained charge.
When, as here, the Board does not sustain all of the charges, it will
carefully consider whether the sustained misconduct merits the penalty imposed
by the agency. Boo v. Department of Homeland Security , 122 M.S.P.R. 100, ¶ 17
(2014). The Board may mitigate the penalty imposed by the agency to the
maximum penalty that is reasonable in light of the sustained charges as long as
the agency has not indicated in either its final decision or in proceedings before
the Board that it desires that a lesser penalty be imposed for fewer charges. Id.
Here, the deciding official did not indicate that he desired a lesser penalty for
fewer sustained charges. Instead, he testified that either charge alone would have
been sufficient to justify a removal. April 29, 2021 Hearing Transcript (HT2)
at 27 (testimony of deciding official). While the deciding official may believe
that either charge alone supports removal, the Board must nevertheless determine
the maximum reasonable penalty and, given the facts here, we do not believe
removal is within the tolerable bounds of reasonableness. See Boo, 122 M.S.P.R.
100, ¶ 17.
The Board has held that the most important factor in assessing whether the
agency’s chosen penalty is within the tolerable bounds of reasonableness is the
nature and seriousness of the misconduct and its relation to the employee’s duties,
position, and responsibilities. Thomas, 2022 MSPB 35, ¶ 20. Here, we do not
find the sustained misconduct to be of a sufficiently egregious nature to justify
removal. The agency was only able to prove that the appellant engaged in a loud
exchange with S.B., which created a disturbance in the workplace, because at
least two employees heard some noise. IAF, Tab 10 at 69, Tab 91 at 5; HT at 239
(testimony of A.J.). However, while two witnesses confirmed that they heard12
“noise,” neither claimed to have heard the specifics of the exchange between the
appellant and S.B., and thus, there is no indication in this record that
the interaction was so loud that it was substantially disruptive. HT at 239
(testimony of A.J.); IAF, Tab 10 at 69. Furthermore, the exchange was short, and
there is no evidence that it had a significant impact on the agency’s operations.
Additionally, we find that the appellant’s tenure with the agency, which totaled
approximately 6 years of service, as well as approximately 17 years of military
service, is a considerable mitigating factor. See Boo, 122 M.S.P.R. 100, ¶ 21
(finding that, even though the appellant had only 1 year of service with the
agency, his 22 years of service with a different agency and his lengthy military
service was a considerable mitigating factor); HT at 10-11, 60 (testimony of the
appellant).
Furthermore, we find that there are circumstances surrounding the offense
that support mitigation. First, as previously stated, there is a history of tension
between S.B. and the appellant. For instance, S.B. admitted to telling the
appellant that “[t]he only person that had [the] right. . . to give [him] orders
without question was [his] mother.” HT at 164-65 (testimony of S.B.). Then, in
a separate incident that occurred several years prior, S.B. allegedly threatened to
“f-up” the appellant. Id. at 54-56 (testimony of the appellant), 252-53 (testimony
of A.J.). Thus, there is some evidence that S.B. had a tendency to be
confrontational and hostile towards the appellant, and it is likely that this
contributed to the March 12, 2020 incident. Additionally, there is significant
evidence that the appellant was in a difficult working environment, and he had
previously admitted that the stress resulting from the agency’s failure to address
his concerns made him “extremely angry during and after work.” IAF, Tab 1713
at 46.10 Accordingly, there are factors present, including unusual job tensions and
personality problems, that weigh in favor of mitigation.
While we find that removal is beyond the maximum reasonable penalty, we
recognize that the appellant is in a position of leadership and the sustained
misconduct implicates the responsibilities inherent in that position. IAF, Tab 9
at 15-20. An essential function of his position is relaying instructions to
subordinate employees and ensuring that the work is carried out according to
those instructions. Id. at 17-18; HT2 at 17 (testimony of the deciding official).
Therefore, it is of the utmost importance that the appellant be able to
communicate with subordinate employees in an effective and respectful way, and
that he refrain from behaving in a disruptive manner. HT2 at 17 (testimony of the
deciding official). Neither the appellant’s behavior here, nor his behavior in the
past, which resulted in a 14-day suspension for discourteous or unprofessional
behavior, inspires confidence that he has the capability to operate effectively in a
leadership role. Id. at 18-19 (testimony of deciding official); IAF, Tab 9
at 52-53, Tab 19 at 24. Thus, we find that demotion to the next lower-graded,
non-supervisory, non-work leader position with the least reduction in grade and
pay is the maximum reasonable penalty.
10 The appellant’s former supervisor, who left the Radar Shop in 2019, admitted to
making several offensive comments, including describing the shop’s employees, who
were all African American, as “from the ghetto,” “on welfare,” “didn’t want much out
of life,” and “quite a drinker”; he also admitted to “maybe” using a racial epithet. HT2
at 94-97. The appellant filed several EEO complaints naming, among others, his former
supervisor, which were ongoing at the time of his removal. IAF, Tab 18 at 5-9, Tab 34
at 5, Tab 37. He also sent numerous communications to the agency’s upper
management regarding his complaints about the working environment, leading to
several internal investigations. IAF, Tab 9 at 63-102, Tab 10 at 5-39, Tab 29 at 22,
Tab 55 at 16-18, Tab 71 at 5-8, Tab 77 at 5-9, 13; HT2 at 58-59, 69-74 (testimony of
the deciding official). While we do not condone the actions of the former supervisor, or
the environment tolerated by the agency, we nevertheless agree with the administrative
judge that the appellant did not establish that this environment caused or justified his
own behavior. ID at 29. Nevertheless, we consider these facts to be relevant in our
mitigation analysis.14
ORDER
We ORDER the agency to cancel the removal action and substitute a
demotion to the next lower-graded, non-supervisory, non-work leader position
with the least reduction in grade and pay, effective June 23, 2020. 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.
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, as appropriate, 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).
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 documentation15
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 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.16
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. The17
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 file18
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. 19
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.20
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. | Swearengen_Marcus_L_DA-0752-20-0450-I-2__Final_Order.pdf | 2024-05-09 | MARCUS L. SWEARENGEN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-20-0450-I-2, May 9, 2024 | DA-0752-20-0450-I-2 | NP |
1,509 | https://www.mspb.gov/decisions/nonprecedential/Kelley_JamesDC-0752-19-0340-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES KELLEY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-0752-19-0340-I-1
DATE: May 9, 2024
THIS ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.
Christopher T. Dong , Esquire, Joint Base Andrews, Maryland, for the
agency.
Kimberly Blanton-Day , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his constructive removal 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 retired from uniformed service with the United States Air
Force and, on September 4, 2007, the agency appointed him to the competitive
service position of YA-02 Flight Management Specialist at Ramstein Air Force
Base, Germany. Initial Appeal File (IAF), Tab 4 at 29, Tab 12 at 23-24.
Continuous overseas service in that position was limited by Department of
Defense policy to 5 years unless an extension was granted. IAF, Tab 13 at 10, 35.
At the end of the 5 years, plus any extensions, the appellant would be offered
assistance through the agency’s priority placement program to secure a position
in the continental United States. Id. Upon notification that his return was
required, the appellant would need to register with the priority placement
program. Id. at 35. He would be required to accept the return placement
identified by the priority placement program or face separation. Id.
The appellant’s tour of duty in Germany was originally set for 3 years, but,
at the behest of his supervisors, his tour was extended multiple times. IAF, Tab 4
at 29-31, 67, 73, 77. On December 13, 2016, the appellant registered with the
priority placement program in anticipation of his return to the continental United
States. Id. at 68-70. On September 13, 2017, the appellant was offered priority
placement as a GS-12 Flight Management Specialist at Scott Air Force Base in
Illinois, and he was given until September 18, 2017, to accept or decline the
offer. IAF, Tab 14 at 5-6. On September 14, 2017, the appellant indicated his
acceptance. Id. at 5.
However, the appellant did not report to the new assignment because the
agency extended his overseas tour until September 2018. IAF, Tab 4 at 6-7. At
that point, the appellant’s supervisors sought another extension of his return date
to January 31, 2019, in order to ease the transition associated with multiple Flight
Management Specialists who were rotating in and out of Ramstein Air Force Base2
at the same time. Id. at 30-31, 56-57. The extension was granted, and the
appellant accepted it. Id. at 32, 58.
On September 13, 2018, the Chief of Staffing at Ramstein Air Force Base
requested that the appellant confirm that he was declining the Scott Air Force
Base job offer in favor of the overseas extension. Id. at 53-54. The appellant
replied that he had been removed from the priority placement program when the
extension was granted. Id. at 53. On September 17, 2018, the Chief of Staffing
notified the appellant that, after an employee declines a valid job offer, he must
normally wait 12 months to reregister for priority placement, and that this would
be beyond the January 31, 2019 extension. Id. at 49-51. The appellant again
confirmed his acceptance of the extension. Id. at 49. On September 21, 2018, the
Chief of Staffing confirmed with the appellant that he would be unable to
reregister with priority placement prior to the end of his overseas tour and that he
could be facing involuntary separation once the extension expired. Id. at 46-48.
Although the Chief of Staffing urged the appellant to reconsider his decision, the
appellant told her that he had already accepted the extension and that he would
proceed with it. Id. at 32.
The agency proposed the appellant’s removal for failure to accept return
from an overseas area, and on December 19, 2018, it issued a decision to remove
him effective January 31, 2019. IAF, Tab 1 at 21. After several unsuccessful
attempts to alter the course of events, on January 31, 2019, the appellant
submitted an application for immediate retirement. IAF, Tab 4 at 33-38, 41,
Tab 15 at 7, 10-11. The agency separated him by retirement effective January 30,
2019.2 IAF, Tab 15 at 12.
The appellant filed a Board appeal, alleging that his retirement constituted
a constructive removal. IAF, Tab 1 at 6-19. He waived his right to a hearing. Id.
at 2. The administrative judge issued an order informing the appellant of his
2 It appears that the agency originally processed the removal effective January 31, 2019,
but after receiving the appellant’s retirement package, it cancelled the removal and
replaced it with a retirement effective January 30, 2019. IAF, Tab 15 at 12, 14. 3
jurisdictional burden in a constructive removal appeal and ordering him to file
evidence and argument on the issue. IAF, Tab 3. Both parties responded,
focusing largely on whether the agency misled the appellant into accepting the
extension of the overseas assignment. IAF, Tabs 4 -5, 12-16. The agency also
argued that the Board lacked jurisdiction over the appeal because the appellant
was separated due to the expiration of his overseas appointment. IAF, Tab 12
at 16-18.
After the record on jurisdiction closed, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial
Decision (ID). He found that the Board lacks jurisdiction over the appellant’s
“separation at the end of his term appointment,” and over the agency’s decision
regarding the appellant’s registration in the priority placement program. ID at 6.
He also found that the appellant was not misinformed regarding the consequences
of accepting the extension of his overseas assignment and that his decision to
retire rather than be removed was voluntary. ID at 6-9.
The appellant has filed a petition for review, disputing the administrative
judge’s voluntariness analysis. Petition for Review (PFR) File, Tab 1. The
agency has filed a response in opposition, and the appellant has filed a reply to
the agency’s response. PFR File, Tabs 3-4.
ANALYSIS
The Board lacks jurisdiction over the appellant’s retirement as a constructive
removal.
The Board generally lacks jurisdiction over voluntary employee actions
such as resignations and retirements, but to the extent that such actions are
involuntary, the Board may have jurisdiction over them under 5 U.S.C. chapter 75
as constructive adverse actions. Bean v. U.S. Postal Service , 120 M.S.P.R. 397,
¶ 7 (2013). Assuming that the jurisdictional requirements of 5 U.S.C. chapter 75
are otherwise met, an appellant may establish jurisdiction over a constructive4
adverse action by showing that: (1) he lacked a meaningful choice in the matter;
and (2) it was the agency’s wrongful actions that deprived him of that choice.
In this case, the administrative judge found that the appellant’s retirement
was voluntary because the agency presented him choices regarding the path his
civilian employment would take, as well as the consequences of each choice, and
that the appellant’s “ultimate choice to submit a retirement application was again
a voluntary selection between alternatives limited by the consequences of his
earlier decisions.” ID at 7. This finding is aptly stated, and it is fully supported
by the record. IAF, Tab 4 at 32, 46-54.
On petition for review, the appellant argues that, in August 2018, the Chief
of Staffing misinformed him about the consequences of accepting an additional
extension to his overseas tour, and that he relied on this misinformation when he
accepted the extension on September 14, 2018. PFR File, Tab 1 at 9, 20-21.
However, we find it immaterial whether the Chief of Staffing initially gave the
appellant misleading information because she subsequently gave him accurate
information about precisely what would happen, and what did in fact happen, if
he were to accept the extension. IAF, Tab 4 at 32, 46-51. Specifically, she
informed him that accepting the extension would mean declining the priority
placement job offer and facing removal at the end of his extended tour, and she
urged the appellant to reconsider his decision. Id. at 47, 50-51. The appellant,
however, determined to stay the course based on his understanding of their earlier
conversation in August. Id. at 32. An action is involuntary only if it resulted
from the employee’s reasonable reliance on the agency’s misleading statements.
Smitka v. U.S. Postal Service , 66 M.S.P.R. 680, 689 (1995), aff’d, 78 F.3d 605
(Fed. Cir. 1996) (Table). Even assuming that the appellant accepted the
extension based on misleading information that he received in August 2018, we
find that his continued reliance on that information was not reasonable after he
received accurate information in September. 5
The appellant appears to argue that, by the time he received accurate
information, it was too late because he had already accepted the extension.
PFR File, Tab 1 at 21-22. However, the extension was not set to go into effect
until after September 30, 2018, and, as previously indicated, the Chief of Staffing
twice told the appellant that it was not too late for him to change his mind. IAF,
Tab 4 at 47, 50, 59. The appellant states that the mission would have suffered if
he did not accept the extension, and he seems to argue that the Air Force value of
“service before self” prevented him from reneging on his earlier promise.
PFR File, Tab 1 at 9, 20-21. However, we find that the appellant’s internal
values and motivations are not equivalent to an external force operating on his
freedom of choice. Cf. White v. Department of the Treasury , 3 M.S.P.R. 488, 491
(1980) (finding that “the involuntary nature of a resignation arises from external
coercion and duress”). We find that the appellant has not provided an adequate
basis to disturb the administrative judge’s findings on this issue, and that the
Board lacks jurisdiction over the retirement as a constructive removal.
The agency did not separate the appellant due to the expiration of his
appointment.
Termination of appointment based on the expiration date specified as a
basic condition of employment at the time the appointment was made is not an
adverse action appealable to the Board. Endermuhle v. Department of the
Treasury, 89 M.S.P.R. 495, ¶ 9 (2001); 5 C.F.R. § 752.401(b)(11). The two cases
most instructive on this issue under the facts of this appeal are Edwards v.
Department of the Air Force , 120 M.S.P.R. 307 (2013), and Scott v. Department
of the Air Force , 113 M.S.P.R. 434 (2010).
In Scott, the agency appointed the appellant to an overseas position with a
“prescribed tour of duty” of 3 years, after which he would be eligible for return
travel “for purpose of separation from the service.” Scott, 113 M.S.P.R. 434, ¶ 6.
Prior to his appointment, the appellant agreed that he lacked return rights to a
position in the continental United States, and that he would need to register under6
the agency’s priority placement program in order to secure such a position. Id.
After the appellant’s 3-year term expired, the agency removed him based on the
expiration of his tour and his inability to register for priority placement due to his
performance rating. Id., ¶ 7. On appeal, the Board acknowledged that the
Standard Form 50 (SF -50) documenting the appellant’s appointment indicated
that he was a career -conditional employee, but it found that the SF-50 was not
controlling and that the Board would consider the totality of the circumstances to
determine the nature of the appointment. Id., ¶ 8. The Board concluded that,
despite any contrary indication in the SF-50, the appellant’s specific employment
agreements showed that he was appointed to a 3-year term and that he was
separated at the expiration of that term. Id. Accordingly, the Board found that
the appellant was removed due to the expiration of his term appointment, and it
dismissed the appeal for lack of jurisdiction. Id., ¶¶ 8, 11.
The appellant in Edwards was also serving in a time-limited overseas
assignment when the agency removed him upon its expiration. Edwards,
120 M.S.P.R. 307, ¶ 2. However, the Board found that the appellant made a
nonfrivolous allegation of Board jurisdiction because there was evidence in the
record that was inconsistent with the agency’s argument that the appellant
encumbered a term position. Id., ¶¶ 9-11. Not only did the SF-50 reflect that the
appointment was career-conditional, but, unlike the employment agreement in
Scott, the employment agreement in Edwards did not specify that the appellant
could be separated from service upon the expiration of his overseas term. Id., ¶ 9.
The employment agreement was also limited to career and career -conditional
employees. Id. Furthermore, the record suggested that the appellant was not a
temporary, term, or limited overseas appointee because he was eligible to register
for a priority placement program that generally excludes such employees. Id.
Moreover, the total duration of the appellant’s appointment (4 years) was
inconsistent with him being under a temporary or term appointment. Id. 7
Considering the totality of the circumstances in the instant appeal, we find
that nothing in the record supports the agency’s contention that the appellant was
separated upon the expiration of his appointment. Quite the contrary, the SF-50
documenting the appellant’s appointment shows that it was a competitive service
“career appointment.” IAF, Tab 12 at 23. In addition, the public law cited
therein as the appointing authority is consistent with career status; it amended
5 U.S.C. § 3304(f) to provide that a veteran appointed under that paragraph “shall
receive a career or career -conditional appointment as appropriate.” Veterans
Millennium Healthcare and Benefits Act, Pub. L. No. 106-117, § 511, 113 Stat.
1545, 1575 (1999). The hallmark of a career appointment is that it is
nontemporary, as distinguished from temporary, term, and indefinite
appointments. See 5 C.F.R. §§ 301.203, 315.201(a), 316.301, 316.401. It is true
that the appellant’s overseas assignment was of limited duration. IAF, Tab 13
at 35. However, time limits on an assignment are not the same as time limits on
an appointment, see Edwards, 120 M.S.P.R. 307, ¶ 10, and both the appellant’s
Overseas Employment Agreement and the agency guidance make clear that the
relevant limitation is on the length of time the incumbent is authorized to remain
in a foreign area, not on the duration of his employment, IAF, Tab 13 at 10, 35.
Unlike the employment agreement at issue in Scott, nothing in the employment
agreement here states that the appellant might be separated upon the expiration of
his overseas assignment.3 Id. at 35. We also find that the 11-year duration of the
appellant’s employment is inconsistent with his being appointed to a temporary or
term position, which appointments are generally limited to 2 and 4 years
respectively.4 See 5 C.F.R. §§ 316.301(a), .401(c). Although overseas limited
3 The appellant’s employment agreement did, however, inform him that he could be
separated if he failed to request and accept a return assignment. IAF, Tab 13 at 35.
4 Although temporary and term appointments may be extended, the extension of a term
appointment beyond 4 years requires Office of Personnel Management approval, which
does not appear to have occurred here, and extensions of temporary appointments
beyond 2 years are limited to positions involving temporary and seasonal work. See
5 C.F.R. §§ 316.301(b), .401(c)-(d).8
appointments are generally of “indefinite duration,” the agency does not allege,
nor does anything in the record suggest, that the appellant received a limited
overseas appointment. See 5 C.F.R. § 301.203(a).
The circumstances surrounding the removal action are also consistent with
our finding. Specifically, the appellant was not removed based on the expiration
of his appointment, but rather for failure to accept return from an overseas area.
IAF, Tab 1 at 21; cf. Edwards, 120 M.S.P.R. 307, ¶¶ 2, 9 (reflecting that the
appellant was not removed for failure to accept a return assignment); Scott,
113 M.S.P.R. 434, ¶ 7 (reflecting that the appellant was removed pursuant to the
expiration of his tour of duty). In addition, the coding on the SF-50 is consistent
with a chapter 75 removal for postappointment conduct or performance, and not
with a separation pursuant to the expiration of an appointment. IAF, Tab 15
at 14; see Office of Personnel Management, Guide to Processing Personnel
Actions, Ch. 31, Table 31-B, Rules 14, 35 (2017), https://opm.gov/policy-data-
oversight/data-analysis-documentation/personnel-documentation/processing-
personnel-actions/gppa31.pdf (last visited May 8, 2024). Putting aside the fact
that the appellant ultimately separated by retirement in lieu of removal, for the
reasons explained above, we find that the removal action was not, nor could it
have been, based on the expiration of his appointment.
The Board may have jurisdiction over the agency’s removal decision under
5 U.S.C. chapter 75.
In determining the appealability of a removal, an individual’s retirement
status may not be taken into account. 5 U.S.C. § 7701(j). The Board retains
jurisdiction over an appeal in which an employee retires when faced with an
agency’s final decision to remove him. Mays v. Department of Transportation ,
27 F.3d 1577, 1579-80 (Fed. Cir. 1994); Cunningham v. Department of Veterans
Affairs, 86 M.S.P.R. 519, ¶ 4 (2000). This seems to be exactly what happened in9
this case.5 IAF, Tab 1 at 21, Tab 15 at 12, 14. It therefore appears that the Board
may have jurisdiction to adjudicate the removal action under 5 U.S.C. chapter 75.
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication. In the remand initial decision, the administrative
judge may reincorporate prior findings as appropriate, consistent with this
Remand Order. If the administrative judge finds that the Board has jurisdiction
over the removal action, he shall adjudicate the removal on the merits.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5 In Jenkins v. Merit Systems Protection Board , 911 F.3d 1370 (Fed. Cir. 2019 ), and
Cooper v. Department of the Navy , 108 F.3d 324 (Fed. Cir. 1997 ), the U.S. Court of
Appeals for the Federal Circuit found that the Board lacked jurisdiction over removal
actions which had been completely rescinded pursuant to the appellants’ retirements.
Although the agency in this case cancelled the removal action to allow the appellant to
separate by retirement, it does not appear to have rescinded the removal decision or
expunged all references to the action from the appellant’s official personnel file. Cf.
Jenkins, 911 F.3d at 1374; Cooper, 108 F.3d at 326.10 | Kelley_JamesDC-0752-19-0340-I-1__Remand_Order.pdf | 2024-05-09 | JAMES KELLEY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-0752-19-0340-I-1, May 9, 2024 | DC-0752-19-0340-I-1 | NP |
1,510 | https://www.mspb.gov/decisions/nonprecedential/Blount_Gladys_S_DC-1221-18-0765-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLADYS S. BLOUNT,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-18-0765-W-1
DATE: May 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gladys S. Blount , Fayetteville, North Carolina, pro se.
John S. Chamblee , Esquire, Peachtree City, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
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 appeal.
On petition for review, the appellant argues that the administrative judge erred by
finding that she failed to prove that some of her disclosures were protected.
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).
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 | Blount_Gladys_S_DC-1221-18-0765-W-1__Final_Order.pdf | 2024-05-09 | GLADYS S. BLOUNT v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-18-0765-W-1, May 9, 2024 | DC-1221-18-0765-W-1 | NP |
1,511 | https://www.mspb.gov/decisions/nonprecedential/O'Toole_MichaelCH-0752-17-0586-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL O’TOOLE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-0752-17-0586-I-1
DATE: May 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Johnathan P. Lloyd , Esquire, Washington, D.C., for the appellant.
Erin Y. Hart , Esquire, Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary retirement 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 or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
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).
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 and supplement the
administrative judge’s analysis of the appellant’s misinformation claim, we
AFFIRM the initial decision.
On review, the appellant claims that he received misinformation from the
Office of Personnel Management (OPM) upon which he relied to his detriment in
making his decision to retire. Petition for Review (PFR) File, Tab 1 at 7. He
specifies that OPM induced him to retire based on its 2009 interpretation that
only his basic annuity was subject to division by a court order and then informed
him, after he retired, that his basic annuity and annuity supplement were both
subject to division, and adjusted the apportionment amount payable to his former
spouse in accord with its 2017 interpretation. PFR File, Tab 4 at 4-6; Initial
Appeal File (IAF), Tab 11 at 9, Tab 6 at 13.
The crux of the appellant’s argument is that the administrative judge erred
when she dismissed his appeal for lack of jurisdiction “based solely on her
finding that it was OPM that gave [him] the incorrect information about the
amount of his annuity payment, and not [his employing agency].” PFR File,
Tab 1 at 8. In his view, the administrative judge ignored Board precedent that
states that “whether the employing agency or OPM is the source of the
misinformation or lack of information that induced an employee to retire, to his
detriment, is immaterial to the question of whether the employee’s retirement was
voluntary.” PFR File, Tab 1 at 9; see Isabelle v. Office of Personnel2
Management, 69 M.S.P.R. 176, 182 (1996); Bannister v. General Services
Administration, 42 M.S.P.R. 362, 366 (1989).
When, as here, there is a claim that an involuntary action resulted from
misinformation, the appellant must show: (1) that the agency made misleading
statements; and (2) that he reasonably relied on the misinformation to his
detriment. Salazar v. Department of the Army , 115 M.S.P.R. 296, ¶ 9 (2010).
The misinformation can be negligently or even innocently provided; if the
employee relies on such misinformation to his detriment, based on an objective
evaluation of the circumstances, his decision to retire is considered involuntary.
Morrison v. Department of the Navy , 122 M.S.P.R. 205, ¶ 7 (2015).
After considering the appellant’s challenges to the administrative judge’s
findings, we discern no reason to disturb the initial decision. While we recognize
that the Board has held that whether the employing agency or OPM is the cause of
the misinformation does not affect the involuntariness of a retirement, we find
that the appellant has not shown that the employing agency or OPM misled him or
that he reasonably relied on the misinformation to his detriment in making his
decision to retire. See Salazar, 115 M.S.P.R. 296, ¶ 9. Because we agree with
the administrative judge’s finding, and the appellant does not dispute that his
employing agency was not the cause of any misinformation,2 we will only address
his allegations toward OPM. IAF, Tab 13, Initial Decision (ID) at 5-6.
The appellant has not shown that his decision to retire was the product of
misinformation by OPM. Contrary to the appellant’s allegation, the
2 We are not persuaded by the appellant’s claim that Salazar mirrors the instant case on
all material points because the employee in that case received misinformation regarding
his projected annuity. Salazar, 115 M.S.P.R. 296, ¶ 12; PFR File, Tab 1 at 7-8. In
Salazar, the Board held that the employing agency provided the employee with
misinformation, albeit unintentionally, when it provided him with a monthly retirement
annuity estimate based upon incorrect proof of payment in full of a military deposit
because it was the responsibility of the agency to verify the accuracy of the appellant’s
military deposit. Salazar, 115 M.S.P.R. 296, ¶¶ 11-12. Here, it was the responsibility
of OPM, not the employing agency, to make the final determination of the appellant’s
annuity benefits, and the agency informed the appellant of such. IAF, Tab 9 at 22; ID
at 6. 3
administrative judge did not make this explicit finding. ID at 5-6. The
administrative judge noted that the appellant provided no other explanation for
his decision to retire other than his disagreement with OPM’s altered calculation
of his annuity benefits. ID at 5. To the extent that the appellant is arguing that
OPM improperly mandated that his FERS annuity supplement was subject to
apportionment, this issue is not to be adjudicated in an involuntary retirement
appeal brought against his employing agency. PFR File, Tab 1 at 7. If the
appellant disagreed with OPM’s altered calculation of his annuity benefits, he
should have appealed OPM’s determination, received a final decision from OPM,
and filed an appeal with the Board. ID at 6.
Here, the appellant takes issue with OPM’s July 2016 internal policy
determination to include the appellant’s FERS annuity supplement in computing
the court-ordered division of his FERS annuity—thus reversing its longstanding
practice of not apportioning the supplemental benefit. PFR File, Tab 4 at 4-6.
Pursuant to a February 2018 report (Management Advisory) from its Office of the
Inspector General (OIG), OPM opines that 5 U.S.C. § 8421(c), which provides
that an annuity supplement “shall, for purposes of section 8467 [court orders], be
treated in the same way as an amount computed under section 8415 [Basic
Annuity],” mandates its change in policy. OPM, OIG, Office of Legal and
Legislative Affairs , Management Advisory , Review of the U.S. Office of Personnel
Management’s Non-Public Decision to Prospectively and Retroactively Re-
Apportion Annuity Supplements , Report No. L-2018-1, at 8 (Feb. 5, 2018), https://
oig.opm.gov/reports/other/review-us-office-personnel-managements-non-public-
decision-prospectively-and (last visited May 9, 2024). For the reasons discussed
below, OPM’s statement regarding the method of dividing the appellant’s
retirement benefit, which did not reflect its subsequent change in policy, cannot
be fairly characterized as misinformation that would vitiate the voluntariness of
the appellant’s appeal. 4
An agency is required to provide accurate information to permit an
employee to make an informed, and thus voluntary, decision regarding
resignation or retirement. Aldridge v. Department of Agriculture , 111 M.S.P.R.
670, ¶ 8 (2009). In making such a determination, we adopt the standard in
Patrick v. Department of Agriculture , 72 M.S.P.R. 509, 521 (1996), review
dismissed, 113 F.3d 1254 (Fed. Cir. 1997) (Table). The controlling issue is what
the agency knew or believed at the time it informed the employee, not what the
agency did after the employee initiated his or her voluntary action. Patrick,
72 M.S.P.R. at 521. Because the information that the appellant received from
OPM was accurate at the time it was given, the appellant has not shown that the
agency made a misleading statement. Id.; see Salazar, 115 M.S.P.R. 296, ¶ 9.
At issue in this appeal are two documents: OPM’s 2009 letter stating that
“Your former spouse’s [marital] share applies to your self retirement annuity
benefit,” IAF, Tab 11 at 9, and OPM’s 2017 letter stating that “[Your former
spouse’s] marital share . . . includes your self-only benefit . . . plus your FERS
annuity supplement,” IAF, Tab 6 at 13. OPM’s explanation of the method of
dividing the appellant’s retirement benefit was consistent with existing
information at the time that it issued the 2009 letter. IAF, Tab 11 at 9. For
almost three decades, OPM had viewed the annuity supplement to be akin to a
Social Security benefit and thus non-allocable between an employee and a former
spouse. See Management Advisory at 8. It had been OPM’s practice to apply the
court-ordered marital share to only the basic (gross monthly) annuity when
calculating benefits to be provided to a former spouse, except when the court
order expressly addressed allocating of the annuity supplement. Id. It was not
until 2016 that OPM began to apply the court-ordered marital share to both the
basic annuity and the annuity supplement, even when the court order does not
address allocating the annuity supplement, as dictated in OPM’s internal
guidance. Id. at i, 7. OPM accordingly notified the appellant of its new
interpretation in its 2017 letter. IAF, Tab 6 at 13.5
We find it significant that OPM had not effected its change in policy at the
time that the appellant retired. Chaney v. U.S. Postal Service , 67 M.S.P.R. 1, 4
(1995), aff’d, 86 F.3d 1176 (Fed. Cir. 1996) (Table). The fact that, subsequent to
his retirement, the agency decided to reinterpret 5 U.S.C. § 8421(c), which
governs how an annuity supplement is to be apportioned, does not render its
earlier statement misleading or untruthful. See Patrick, 72 M.S.P.R. at 521-22.
To the extent the appellant may be arguing that he relied on inaccurate
information in OPM’s Explanation of Benefits, his argument is without merit.
The record shows, and he does not dispute, that he did not receive it until after he
retired, which undercuts any claim of detrimental reliance that he may raise. IAF,
Tab 11 at 7-8, 11. While we sympathize with his situation, we find that the
appellant has not shown that the agency made a misleading statement or that he
reasonably relied on such a statement to his detriment. See Salazar, 115 M.S.P.R.
296, ¶ 9.
To the extent the appellant is alleging that he lacked sufficient information
to make an informed decision, his allegation is unavailing. While an agency must
provide information that is not only correct in nature but adequate in scope to
allow an employee to make an informed decision, see Baldwin v. Department of
Veterans Affairs , 111 M.S.P.R. 586, ¶ 16 (2009), an agency’s obligation to
provide information cannot apply to information the agency does not have . There
was no other available information that OPM could have furnished the appellant
at the time it issued its 2009 letter. The appellant knew as much as the agency
did at the time he retired in 2015. See Cassel v. Department of Agriculture ,
72 M.S.P.R. 542, 548 (1996).
The circumstances alleged by the appellant are insufficient to raise a
nonfrivolous allegation of jurisdiction over his claim on the basis of
misinformation supplied by OPM.3 Insofar as the administrative judge erred in
3 Because we affirm the administrative judge’s dismissal of the appeal for lack of
jurisdiction, we make no finding as to the timeliness of the appeal.6
failing to adequately address the appellant’s allegations that OPM provided him
misinformation, given that the appellant did not carry his burden as to the
required elements of his claim, it does not affect the outcome of the appeal. 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).
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.
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.7
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,8
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 9
(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. 10
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.11 | O'Toole_MichaelCH-0752-17-0586-I-1__Final_Order.pdf | 2024-05-09 | null | CH-0752-17-0586-I-1 | NP |
1,512 | https://www.mspb.gov/decisions/nonprecedential/Greene_Daniel_A_AT-0752-22-0418-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL GREENE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-0752-22-0418-I-2
DATE: May 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aaron H. Szot , Esquire, Washington, D.C., for the appellant.
Daniel Mitchell , Esquire, Key West, Florida, for the agency.
Bobbie Garrison , Esquire, Doral, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
reversed the agency’s removal action after finding that the agency violated the
appellant’s due process rights. 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 finding as to Board jurisdiction, we
AFFIRM the initial decision. We also DENY the agency’s renewed motion to
dismiss for mootness.
BACKGROUND
¶2The appellant was a GG-0132-15 Supervisory Intelligence Specialist for the
Department of Defense, Joint Interagency Task Force South, at the Naval Air
Station in Key West, Florida. Greene v. Department of Defense, MSPB Docket
No. AT-0752-22-0418-I-1, Initial Appeal File (IAF), Tab 1 at 20. On March 17,
2022, the agency proposed the appellant’s removal based on the charges of
conduct unbecoming (15 specifications), insubordination (1 specification), and
lack of candor (1 specification). Id. at 20-29. By letter dated May 10, 2022, the
deciding official, Rear Admiral (RADM) D. Fears, sustained the action and
removed the appellant effective May 11, 2022. Id. at 30-35.
¶3The appellant subsequently appealed to the Board. IAF, Tabs 1, 28;
Greene v. Department of Defense, MSPB Docket No. AT-0752-22-0418-I-2,
Appeal File (I-2 AF), Tab 1.2 During the prehearing process, the appellant raised
2 During case processing, the appellant requested a dismissal without prejudice for more
time to prepare his case. I-2 AF, Tab 1. The administrative judge granted his request,
and the case was automatically refiled by the Board on January 3, 2023. Id. 2
the affirmative defense of retaliation for protected whistleblowing activity and
alleged that the agency had violated his due process rights because RADM Fears
relied on two separate new and material ex parte communications in rendering his
decision. I-2 AF, Tab 7. The administrative judge thereafter allowed the parties
to further develop evidence on the due process issue and held a limited hearing on
that matter. I-2 AF, Tab 21.
¶4Shortly after the limited hearing, the agency filed a motion to dismiss the
appeal for lack of jurisdiction, and submitted its letter to the appellant dated
April 5, 2023, rescinding the removal action effective May 11, 2022, placing the
appellant on administrative leave, and noting, “[t]hrough reinstatement, you will
receive full back pay and benefits. Such payments regarding your payroll and
benefits are made by [the Defense Finance and Accounting Service (DFAS)] and
are not under [a]gency control.”3, 4 I-2 AF, Tab 23 at 7. In its motion, the agency
asserted that it had reinstated the appellant to the status quo ante and notified him
of his reinstatement, and that the agency’s recission of the removal action thus
rendered the appeal moot. Id. at 4-6. The appellant responded in opposition,
arguing that he had not been afforded any relief regarding the recission of the
removal and further that, notwithstanding the agency’s cancellation of the
removal action, he could still proceed with his outstanding whistleblower
retaliation claim and thus that his appeal should continue to be adjudicated on the
merits. I-2 AF, Tab 27 at 4-6. With his response, the appellant submitted an
affidavit swearing that, although he had received a Standard Form 50 (SF-50)
cancelling his removal on April 11, 2023, he had not received any back pay or
benefits, including premium pay, a step increase, an annual raise, or confirmation
that all references to the removal had been removed from his personnel file.
Id. at 7. The administrative judge subsequently issued an order denying the
3 DFAS processes payroll, leave, and other accounting actions on behalf of the agency.
4 The agency notes on review that simultaneously on April 5, 2023, it issued the
appellant a new notice of removal and placed him on administrative leave. Petition for
Review File, Tab 1 at 6, 20-30, Tab 5 at 27.3
agency’s motion to dismiss the case as moot “for the reasons stated in the
appellant’s April 17, 2023 opposition to that motion.” I-2 AF, Tab 28. Shortly
afterward, the appellant withdrew his whistleblower retaliation affirmative
defense and requested an initial decision on his due process claim. I -2 AF,
Tab 29.
¶5Days later, the administrative judge issued an initial decision reversing the
agency’s removal action, finding that the agency had violated the appellant’s due
process rights in removing him. I-2 AF, Initial Decision (ID), Tab 30 at 1, 12.
The administrative judge first noted that the Board had jurisdiction over the
appeal under 5 U.S.C. §§ 7511(a)(1)(A), 7512(1), and 7513(d). ID at 1. He then
specifically found that RADM Fears had improperly considered an unnoticed
deciding official guidance document that included a sentence stating, “[s]ince this
action is based on the employee’s inability to perform his duties, reducing the
penalty is not an option.” ID at 7-10. The administrative judge also found that
RADM Fears’ awareness of unnoticed portions of an Army Regulation (AR) 15-6
investigation into the allegations that formed the basis for the charges against the
appellant violated the appellant’s due process rights because Fears used the
negative credibility determinations in the investigation as a central basis for
sustaining the charged misconduct. ID at 10-11.
¶6The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. On review, the agency argues that the administrative judge erroneously
failed to recognize that the Board no longer had jurisdiction over the appeal after
the appellant withdrew his whistleblower retaliation claim and that the
administrative judge failed to apply Board case law regarding mootness and
providing parties time to supplement the record on that issue. Id. at 9-11.
Similarly, the agency claims that the administrative judge abused his discretion
by issuing the initial decision after the appellant withdrew his whistleblower
retaliation claim and requested an initial decision because he did not afford the
agency the opportunity to respond or have a hearing on the issue of Board4
jurisdiction and whether it had returned the appellant to the status quo ante.
Id. at 12-13. Additionally, the agency argues that the administrative judge
erroneously found that the agency violated the appellant’s due process rights on
both of the points mentioned above. Id. at 13-18. The appellant filed a response.
PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over the appeal.
¶7The agency’s argument that the appeal was moot at the time the
administrative judge issued the initial decision and that the administrative judge
erroneously failed to apply case law related to mootness is unavailing.
¶8The Board’s jurisdiction over an agency action such as a removal is
determined by the nature of an agency’s action against a particular appellant at
the time an appeal is filed with the Board, and an agency’s unilateral modification
of its adverse action after an appeal has been filed cannot divest the Board of
jurisdiction unless the appellant consents to such divestiture, or unless the agency
completely rescinds the action being appealed. Fernandez v. Department of
Justice, 105 M.S.P.R. 443, ¶ 5 (2007). Thus, the Board may dismiss an appeal as
moot if the appealed action is canceled or rescinded by the agency. Id. (citing
Harris v. Department of the Air Force, 96 M.S.P.R. 193, ¶ 5 (2004)). For an
appeal to be deemed moot, the agency’s rescission must be complete, i.e., the
appellant must be returned to the status quo ante and not left in a worse position
as a result of the cancellation than he would have been in if the matter had been
adjudicated and he had prevailed. Price v. U.S. Postal Service, 118 M.S.P.R.
222, ¶ 8 (2012). Status quo ante relief generally requires that the agency return
the appellant to the position he previously occupied, or one substantially
equivalent in scope and status, remove all references to the rescinded action, and
restore to the appellant any lost back pay or benefits. Hess v. U.S. Postal Service,
123 M.S.P.R. 183, ¶ 5 (2016). If an appeal is not truly moot despite cancellation5
of the action under appeal, the proper remedy is for the Board to retain
jurisdiction and to adjudicate the appeal on the merits. Price, 118 M.S.P.R. 222,
¶ 8.
¶9Here, contrary to the agency’s assertions, the appeal was not moot after the
appellant withdrew his whistleblower retaliation affirmative defense. The
recission of removal action letter that the agency submitted with its motion to
dismiss stated that through reinstatement, the appellant would receive full back
pay and benefits. I-2 AF, Tab 23 at 7. However, he had not actually received any
relief at that time. Indeed, the appellant’s affidavit in response to the agency’s
motion swears that he had not received any back pay or benefits, including
premium pay, a step increase or annual raise, or confirmation that all references
to the removal had been removed from his personnel file, as is required for status
quo ante relief. I-2 AF, Tab 27 at 7; see Hess, 123 M.S.P.R. 183, ¶ 5; Harris,
96 M.S.P.R. 193, ¶ 6 (explaining in more detail what restoration to the status quo
ante requires); Jasper v. U.S. Postal Service, 88 M.S.P.R. 27, ¶ 9 (2001) (holding
that the appellant’s sworn statement that the agency had not paid him all
appropriate back pay constituted a nonfrivolous allegation that his appeal was not
moot). Thus, the agency’s recission of the removal action was not complete.
Price, 118 M.S.P.R. 222, ¶ 8.
¶10Although the agency argues on review that the administrative judge should
have allowed the agency an opportunity to respond to the appellant’s withdrawal
of his affirmative defense, or to supplement the record and/or conduct a hearing
on whether the appellant had been returned to the status quo ante, its arguments
are unpersuasive. PFR File, Tab 1 at 8, 10-13. The agency does not point to any
authority indicating that it has a right to respond to the appellant’s withdrawal of
his own affirmative defense. Id. at 12-13. Furthermore, when the appellant
withdrew his affirmative defense, the record on the due process issue had closed
and the administrative judge had already issued his order denying the agency’s
motion to dismiss as moot, and thus, there were no outstanding issues left to6
address before ruling on the due process issue. PFR File, Tab 1 at 6, Tab 16; I-2
AF, Tabs 28, 29.
¶11The Board cases that the agency cites in support of its argument do not
establish that, in situations such as the one presented here, the administrative
judge must afford the agency a hearing or an opportunity to supplement the
record on the issue of jurisdiction or whether the appellant has been provided
with status quo ante relief. PFR File, Tab 1 at 10-13 (discussing Stempihar v.
U.S. Postal Service, 106 M.S.P.R. 115, ¶¶ 13-14 (2007) (finding that the
administrative judge erred in dismissing the appeal as moot “upon the agency’s
assurances that the appellant would be restored to the status quo ante instead of
upon evidence that the appellant had been restored to the status quo ante” and
remanding the case for the administrative judge to determine whether the agency
had completely rescinded the appellant’s removal and afforded him all relief after
affording the parties to submit evidence and argument on the issue) (emphasis in
original); Calarco v. U.S. Postal Service, 56 M.S.P.R. 598, 601-02 (1993)
(remanding the case where that the Board was unable to determine whether the
agency had corrected the appellant’s placement on enforced leave status for the
disputed period and for the administrative judge to determine whether the
appellant had been returned to the status quo ante); and McCulley v. U.S. Postal
Service, 54 M.S.P.R. 207, 209-10 (1992) (finding that the Board was unable on
petition for review to determine whether the agency completely rescinded a
demotion action and ordering the administrative judge on remand to determine
whether the appellant had been returned to the status quo ante after affording the
parties an opportunity to supplement the record and conduct a hearing if
necessary)). These cases all involve Board orders to consider additional evidence
and argument on remand and after petition for review, and they are therefore
distinguishable. Moreover, if anything, the cases that the agency cites support the
administrative judge’s determination that the appeal here was not moot and his
issuance of an initial decision adjudicating the due process issue. 7
¶12Even if the administrative judge did somehow err in issuing the initial
decision without allowing the agency to supplement the record on whether the
appellant had been returned to the status quo ante or by, for example, dismissing
the appeal without prejudice to allow time for the cancellation efforts to play out,
any such error is harmless here because the new evidence on review clearly shows
that the agency still has not returned the appellant to the status quo ante, and thus
that the issues still are not moot. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (providing that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision). To this end, with its petition for review, the agency submitted a
May 18, 2023 affidavit from an agency employee and labor relations official
affirming that the agency canceled the appellant’s May 11, 2022 removal, purged
that action from the appellant’s personnel file, processed the appellant’s step
increase, and sent to DFAS the appellant’s timecard worksheets processing his
back pay, retirement contributions, and annual leave balance restoration
information, and that these three issues “ will be processed with DFAS Remedy
Ticket 3837369.” PFR File, Tab 1 at 31 (emphasis added); see also id. at 11, 18.
The agency also attached two of the appellant’s SF-50s confirming the
cancelation of the removal and his step increase, in addition to the appellant’s
corrected timecard worksheets showing that the agency placed the appellant on
administrative leave from May 11, 2022, through April 2023. Id. at 33-60. In
response, the appellant submitted a supplemental affidavit swearing that he still
had “not received any back pay, including interest and the premium pay that [he]
would have received had [he] not been removed from [his] position;
Thrift Savings Plan [TSP] contributions; or had [his] leave restored.” PFR File,
Tab 5 at 27.
¶13This evidence plainly demonstrates that even at the time the agency filed its
petition for review, it still had not taken all the steps necessary to completely
rescind the removal. See Jasper, 88 M.S.P.R. 27, ¶ 9; see also Gillespie v.8
Department of Defense, 90 M.S.P.R. 327, ¶ 10 (2001) (stating that an appellant is
not restored to the status quo ante where he does not receive all the back pay to
which he is entitled). Although the agency asserted that it had “been responsive
in its good faith efforts to put [the a]ppellant as nearly as possible back into the
position he was in before he was removed” and that it had submitted to DFAS all
of the documentation necessary for payment, the Board has previously held in
various compliance cases that the agency is responsible for ensuring that its
agent, DFAS, satisfies the agency’s obligations in a timely fashion. PFR File,
Tab 1 at 13; see Tichenor v. Department of the Army, 84 M.S.P.R. 386, ¶ 8 (1999)
(rejecting the agency’s argument that severance pay withheld by DFAS was not
the result of the agency’s action, on the ground that the agency used DFAS as its
paying agent). When the petition for review was filed, DFAS had still not
actually paid the appellant.
¶14We note that after the agency filed its petition for review and while the case
was pending before the Board, the agency filed a status update and renewed
motion to dismiss the appeal as moot. PFR File, Tab 6. In its motion, the agency
claims that the appellant has “been afforded the relief owed to him” because it
restored him to the same job position that he held when he was removed, that the
appellant “received all of the back pay he was entitled to,” and that the agency
restored all of the appellant’s benefits. Id. at 7-8. It attaches, without
explanation, two of the appellant’s leave and earnings statements from February
2024 and asserts that it has returned the appellant to the status quo ante.
Id. at 8-10. In response, the appellant submitted another detailed affidavit
swearing, among other things, that the agency has still not paid him all the
backpay to which he is entitled because it did not calculate or pay him the
premium pay he would have earned had he not been improperly removed, which
he estimates should have resulted in roughly $20,000 of additional pay; that while
the agency restored his TSP contributions, it did not make up for the positive
growth of his funds; and that due to the agency’s significant delays in providing9
him backpay, he has suffered a significantly increased tax burden. PFR File,
Tab 9 at 10-11. He also submitted a spreadsheet showing his premium hours for
2021 and the calculation if earned in 2022 and 2023. Id. at 12.
¶15Again, this new evidence still plainly demonstrates that even now, over a
year after the initial decision was issued, the agency still has not taken all the
steps necessary to completely rescind the removal and return the appellant to the
status quo ante. See Jasper, 88 M.S.P.R. 27, ¶ 9; Gillespie, 90 M.S.P.R. 327,
¶ 10; see also Vaughan v. Department of Agriculture, 116 M.S.P.R. 319, ¶ 5
(2011) (explaining that the appellant may rebut the agency’s evidence of
compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance). As indicated above, back pay generally includes
overtime and premium pay that the appellant would have earned had the wrongful
personnel action not occurred. Owens v. Department of Transportation,
99 M.S.P.R. 377, ¶ 6 (2005). Here, the agency has not explained or even
addressed the issue of premium pay in any of its filings. IAF, Tab 23; PFR File,
Tabs 1, 6; see Norvell v. U.S. Postal Service, 38 M.S.P.R. 563, 567-68 (1988) (an
appellant’s entitlement to overtime pay is a factor to be considered when
determining whether an action has been completely rescinded). In addition, as
the appellant correctly points out, pursuant to the Federal Retirement Thrift
Investment Board (FRTIB) regulation 5 C.F.R. § 1605.13, a TSP participant who
receives back pay is entitled to “breakage,” or the loss or gain that he would have
incurred or realized on his shares had his separation not occurred. 5 C.F.R.
§§ 1605.1, 1605.13(a)(3). As to the appellant’s breakage, the agency must show
that it requested the FRTIB to compute interest and lost earnings. Price,
118 M.S.P.R. 222, ¶ 16. Here, there is no evidence indicating that the agency
made the required request to the FRTIB.
¶16Furthermore, as the appellant notes in both of his filings in response to the
agency’s submissions on review, the agency states that it put the appellant on
administrative leave when it rescinded the May 11, 2022 removal action on10
April 5, 2023. I-2 AF, Tab 23 at 6-7; PFR File, Tab 5 at 12 n.6, Tab 9 at 7 n.2.
Indeed, the corrected timecard worksheets that the agency submitted with its
petition show that the agency retroactively placed the appellant in administrative
leave status from May 11, 2022, through April 2023. PFR File, Tab 1 at 35-59,
Tab 5 at 12 n.6. Additionally, on April 5, 2023, at the same time that the agency
rescinded the May 11, 2022 removal action, it issued the appellant a new notice
of proposed removal and placed him in administrative leave status. PFR File,
Tab 1 at 20. Notably, however, the Board has held that an appellant’s placement
on administrative leave pending another removal action is not placement which is
substantially similar to his situation in his former position. Rauccio v. U.S.
Postal Service, 44 M.S.P.R. 243, 245 (1990); see Fairley v. U.S. Postal Service,
63 M.S.P.R. 10, 12-13 (1994) (finding that the fact that the agency took another
removal action against the appellant shortly after cancelling the first action raised
the issue of whether the appellant was ever returned to duty after the cancellation
of the first action and that an appellant has not been returned to the status quo
ante unless he has been returned to duty status in his position); Dalton v. U.S.
Postal Service, 62 M.S.P.R. 95, 97 (1994) (stating that retroactive placement of a
suspended employee in administrative leave status is not the same as return to the
status quo ante and thus does not constitute complete rescission); Hudson v.
Department of Housing and Urban Development, 54 M.S.P.R. 139, 142 (1992)
(stating that an agency does not return an employee to the status quo ante when it
rescinds the appealed action and then, instead of returning the appellant to duty,
places her on administrative leave pending a second proposed removal action).
¶17Accordingly, the administrative judge did not err in concluding that the
Board had jurisdiction over the appeal or in applying the Board’s case law related
to mootness issues. Nevertheless, we modify the initial decision to supplement
the administrative judge’s finding as to jurisdiction as discussed herein. Further,
we conclude that the agency’s recission is still not complete and that it has not
returned the appellant to the status quo ante, and therefore, we deny the agency’s11
renewed motion to dismiss for mootness. The Board retains jurisdiction over the
appeal. See Price, 118 M.S.P.R. 222, ¶ 8.
The agency has not established that the administrative judge erred in finding that
the agency violated the appellant’s due process rights.
¶18On review, the agency also argues that the administrative judge erred in
finding that the agency violated the appellant’s due process rights. PFR File,
Tab 1 at 13-18. Our reviewing court has held that a deciding official violates an
employee’s due process rights when he or she relies upon new and material ex
parte information as a basis for a decision on the merits of a proposed charge or
the penalty to be imposed. 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). Further, 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). In
Stone, the U.S. Court of Appeals for the Federal Circuit identified the following
factors to be 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.
¶19As discussed above, the administrative judge first concluded that RADM
Fears improperly considered an unnoticed deciding official guidance document
that included a sentence stating, “[s]ince this action is based on the employee’s
inability to perform his duties, reducing the penalty is not an option.” ID at 8-10;
I-2 AF, Tab 10 at 17. In this regard, the administrative judge found, among other
things, that it was undisputed this information was not provided to the appellant12
and that he was not provided with an opportunity to respond to it; that there was
nothing in the notice of proposed removal that would have led even a
sophisticated reader to conclude that RADM Fears was considering this
instruction; that there was nothing in the nature of the charges rendering the
appellant unable to perform his duties and that this instruction inferred that the
agency considered unnoticed misconduct; and that given RADM Fears’ admitted
inexperience in civilian personnel matters, this instruction would have placed
undue pressure on him, especially as Fears testified at his deposition that his
decision was “constrained” by this instruction. ID at 9-10; I-2 AF, Tab 25 at 9.
¶20In its petition, the agency argues that RADM Fears stated in an affidavit
submitted after his deposition testimony and during the due process hearing that
he did in fact consider a lesser penalty but found removal the most appropriate
penalty, and that Fears actually disregarded the disputed language. PFR File,
Tab 1 at 14; I-2 AF, Tab 14 at 83, Tab 21. However, the administrative judge
explicitly acknowledged that although there was evidence in RADM Fears’
Douglas factors checklist and his hearing testimony that he disregarded this
instruction and considered a lesser penalty, that evidence “was exceedingly
difficult to credit given the agency’s plain instruction to RADM Fears that
he could not mitigate the penalty and his conflicting deposition testimony that
he was, in fact, constrained by that instruction.” ID at 9. Although the
administrative judge did not specifically mention Fears’ affidavit,
an administrative judge’s failure to mention all of the evidence and testimony of
record does not mean that he did not consider it in reaching his decision, and
here, the administrative judge still clearly considered the agency’s argument.
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); ID at 9. Furthermore, 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, and the Board may overturn such13
determinations only when it has “sufficiently sound” reasons for doing so.
Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the
administrative judge thoroughly reviewed the evidence and specifically cited
Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), in setting forth
his credibility determinations. ID at 9. We discern no reason to disturb his
well-reasoned findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106
(1997) (stating that there is no reason to disturb the initial decision where the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions).
¶21As noted above, the administrative judge also concluded that RADM Fears’
awareness of unnoticed portions of an AR 15-6 investigation into the appellant’s
charged conduct violated the appellant’s due process rights because, among other
things, Fears used the investigating officer’s negative credibility determinations
—in that he essentially called the appellant a liar—as a central reason for
sustaining the charged misconduct and because the agency did not provide the
appellant notice of Fears’ considerations in this regard. ID at 10-11. On review,
the agency maintains that RADM Fears did not review the entire AR 15-6
investigation file and that Fears’ past involvement with investigations provided
him with knowledge on what the appellant’s AR 15-6 investigation contained.
PFR File, Tab 1 at 17. However, the administrative judge specifically discussed
this argument and found, contrary to the agency’s assertions, that Fears was privy
to the entire AR 15-6 investigation for multiple reasons. ID at 11 n.1. The
agency’s argument simply disagrees with the administrative judge and is thus
unavailing. See Yang v. U.S. Postal Service, 115 M.S.P.R. 112, ¶ 12 (2010)
(arguments that constitute mere disagreement with the initial decision do not
provide a basis to grant the petition for review).
¶22Finally, the agency claims that the appellant had a meaningful opportunity
to present his side of the story here because he submitted a written reply to the
notice of proposed removal that substantively addressed all of the charges against14
him. PFR File, Tab 1 at 16-17. It asserts that the appellant received all due
process that he was entitled to. Id. at 16. However, the agency’s mere
disagreement with the administrative judge’s evaluation of the evidence does not
establish a basis for review. Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987).
ORDER
¶23We ORDER the agency to cancel the removal and retroactively restore the
appellant effective May 11, 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.
¶24We 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.
¶25We 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).
¶26No 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 not15
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).
¶27For 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 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
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
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. 17
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 the18
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 of19
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. 20
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 Grippando
Clerk of the Board
Washington, D.C.21
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. | Greene_Daniel_A_AT-0752-22-0418-I-2__Final_Order.pdf | 2024-05-09 | DANIEL GREENE v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-22-0418-I-2, May 9, 2024 | AT-0752-22-0418-I-2 | NP |
1,513 | https://www.mspb.gov/decisions/nonprecedential/Holliday_Thomas_R_AT-0752-19-0073-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS R. HOLLIDAY,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-0752-19-0073-I-1
DATE: May 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas R. Holliday , Rupert, Idaho, pro se.
Amanda J. Adams , Esquire, and James Hoffman , Esquire, Jacksonville,
Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his indefinite suspension based on the suspension of his access to
classified information. On petition for review, the appellant argues that the
Acknowledgment Order misled him into believing that he would have a hearing at
which he could challenge the merits of the agency’s decision to suspend 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).
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
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).
An indefinite suspension lasting more than 14 days is an adverse action
appealable to the Board under 5 U.S.C. § 7513(d). 5 U.S.C. § 7512(2);
Rogers v. Department of Defense, 122 M.S.P.R. 671, ¶ 5 (2015). It is well settled
that an agency may indefinitely suspend an appellant when his access to classified
information has been suspended and he needs such access to perform his job. See
Rogers, 122 M.S.P.R. 671, ¶ 5. In such a case, the Board lacks the authority to
review the merits of the decision to suspend access. Id. However, the Board
retains the authority to review whether (1) the appellant’s position required
access to classified information; (2) the appellant’s access to classified
information was suspended; and (3) the appellant was provided with the
procedural protections specified in 5 U.S.C. § 7513. Id., ¶ 5. In addition, the
Board has the authority under 5 U.S.C. § 7701(c)(2)(A) to review whether the
agency provided the procedural protections required under its own regulations.
Id., ¶ 7. Finally, because a tenured Federal employee has a property interest in
continued employment, the Board also may consider whether the agency2
provided minimum due process in taking the indefinite suspension action. See
Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶¶ 13–15 (2014)
(holding that the Board has the authority to review whether the agency provided
due process in taking an indefinite suspension action based on the suspension of a
security clearance).
The appellant’s petition for review contends that, by issuing an
acknowledgment order containing the language “[i]f your appeal is timely filed,
and within the Board’s jurisdiction, you have the right to a hearing on the merits
of your case,” the administrative judge misled him to believe that, at a hearing, he
would have the opportunity to challenge the merits of the reasons underlying the
agency’s decision to suspend his access to classified information, and in effect
erroneously denied the appellant discovery of relevant information. Petition for
Review (PFR) File, Tab 3 at 7-8 (quoting Initial Appeal File (IAF), Tab 2 at 1).
The appellant argues that, had he known that the hearing would not address the
merits of the agency’s reasons for suspending his access to classified information,
he would not have made certain admissions and would have directed his
discovery toward the issue of whether the agency provided him with the
procedural protections specified in 5 U.S.C. § 7513. PFR File, Tab 3 at 7-8.
The appellant was represented below, IAF, Tab 3, but he obtained new
representation on petition for review, PFR File, Tab 1 at 5, Tab 3. The
appellant’s arguments on petition for review suggest that he is asserting that his
representative below erred in failing, when he realized that the hearing before the
administrative judge would not include the merits of the decision to suspend his
access to classified information, to identify the language of the acknowledgment
order regarding a hearing on the merits as allegedly misleading, to redirect
discovery, and to have the appellant recant his admissions. PFR File, Tab 3
at 7-8. The failure of the appellant’s representative below to be aware of the
scope of the Board’s review in an appeal of an indefinite suspension for loss of
access to classified information and to direct the appellant’s admissions and3
discovery in accord with the scope of Board review provides no basis for granting
the petition for review. It is well settled that the appellant is responsible for
the errors of his chosen representative . Sofio v. Internal Revenue Service,
7 M.S.P.R. 667, 670 (1981).
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).
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
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.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
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
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 | Holliday_Thomas_R_AT-0752-19-0073-I-1__Final_Order.pdf | 2024-05-09 | THOMAS R. HOLLIDAY v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-0752-19-0073-I-1, May 9, 2024 | AT-0752-19-0073-I-1 | NP |
1,514 | https://www.mspb.gov/decisions/nonprecedential/Brooks_Robert_A_SF-1221-17-0131-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT BROOKS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-1221-17-0131-W-1
DATE: May 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
Robert Brooks , Green Cove Springs, Florida, pro se.
Christina T. Fuentes and Sandra Lizeth Olivares , Washington Navy Yard,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
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
On April 8, 2013, the agency appointed the appellant to the position of
GS-12 Diving Operations Director for its Ship Repair Unit in Singapore. Initial
Appeal File (IAF), Tab 6 at 86. On October 29, 2013, the appellant filed a
complaint with the agency’s Inspector General concerning the unauthorized
circulation of his résumé among agency staff. IAF, Tab 1 at 27, 52-54.
On January 24, 2014, the appellant filed a whistleblower complaint with
the Office of Special Counsel (OSC), claiming that the agency retaliated against
him for his Inspector General complaint. Id. at 56-65. On June 2, 2014, OSC
closed the appellant’s file without taking corrective action, and on August 18,
2014, he filed an IRA appeal. Brooks v. Department of the Navy , MSPB Docket
No. SF-1221-14-0751-W-1, Appeal File (0751 AF), Tab 1. The appellant
withdrew his appeal, and on September 22, 2014, the administrative judge
dismissed it with prejudice. 0751 AF, Tabs 15, 17.
Meanwhile, on June 14, 2014, the appellant filed another OSC complaint,
alleging several improper actions by the agency and claiming that the agency was
trying to compel his resignation. IAF, Tab 1 at 67-80. OSC, which apparently
did not construe this as a whistleblower complaint, closed the appellant’s file on
October 21, 2014. IAF, Tab 29 at 10-13. The appellant did not file an appeal.
Effective February 21, 2015, the appellant resigned from his position,
citing various acts of agency malfeasance as the reason for his resignation. IAF,
Tab 6 at 89-91. Subsequently, the appellant sought employment with the
Department of the Air Force, once in April 2015, and once in October 2015, but
he was not selected either time. IAF, Tab 1 at 38-39.
On April 27, 2016, the appellant filed a third complaint with OSC,
claiming, among other things, that the agency constructively removed him and
interfered with the two Department of the Air Force selection processes in
retaliation for protected activity. Id. at 19-50. OSC once again closed the2
appellant’s file without taking corrective action. Id. at 17-18. The appellant filed
the instant IRA appeal and requested a hearing. Id. at 2, 7-8, 15.
After the close of the jurisdictional record, the administrative judge issued
an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 61,
Initial Decision (ID). Regarding the appellant’s constructive removal claim, she
found that he failed to make a nonfrivolous allegation that his resignation was
involuntary. ID at 7-10. Regarding the appellant’s claims that the agency
interfered with the Department of the Air Force’s selection processes, the
administrative judge found that he failed to make a nonfrivolous allegation that
his protected activity was a contributing factor. ID at 10-14. Regarding the
remainder of the appellant’s claims, the administrative judge dismissed them
variously as res judicata or for lack of jurisdiction on the basis that the appellant
failed to satisfy the exhaustion requirement. ID at 6, 14-15.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis of the constructive removal issue and arguing that he was
improperly denied discovery that would have allowed him to make a nonfrivolous
allegation of contributing factor with respect to the agency’s alleged interference
with the Department of the Air Force’s selection processes. 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
The appellant has not challenged the administrative judge’s dismissal of the
several personnel actions as set forth on pages 6 and 14-15 of the initial decision.
We decline to disturb those findings. See 5 C.F.R. § 1201.115 (“The Board
normally will consider only issues raised in a timely filed petition or cross
petition for review.”). The only three remaining personnel actions are the alleged
interference with the April 2015 job application, the alleged interference with the
October 2015 job application, and the alleged constructive removal.3
The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that
(1) he 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). Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6 (2014).
In this case, the administrative judge made no finding as to whether the appellant
engaged in protected activity or exhausted his administrative remedies. We find
that he did both. The appellant’s October 29, 2013 Inspector General complaint
and June 14, 2014 OSC prohibited personnel practice complaint were protected
under 5 U.S.C. § 2302(b)(9)(C), and his prior IRA appeal and January 24, 2014
OSC whistleblower complaint were protected under 5 U.S.C. § 2302(b)(9)(A)(i).
See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 10 (2016); Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 12 (2016). Furthermore, the
appellant identified his February 21, 2015 “constructive discharge” and the
agency’s alleged interference with the April and October 2015 Department of the
Air Force selection processes as personnel actions that were in reprisal for his
Inspector General and OSC complaints. IAF, Tab 1 at 27, 38-39.
Interference with Job Applications
The administrative judge found that the appellant was not claiming that his
Department of the Air Force nonselections were personnel actions but was instead
claiming that the agency interfered with the Department of the Air Force’s
selection processes. ID at 10-11. Assuming without deciding that such
interference would constitute a personnel action within the Board’s IRA
jurisdiction, the administrative judge found that the appellant failed to make a
nonfrivolous allegation concerning the contributing factor element of his claim.
ID at 10-14. Specifically, she found that the appellant’s theory of contributing
factor was based on two facts—that the unnamed Department of the Air Force4
interviewer knew a retired Navy diver, and that a different Navy diver knew of
and was the subject of some of the appellant’s protected activity. ID at 11-12.
The administrative judge found that the appellant’s theory of contributing factor
was “attenuated, insubstantial, and speculative” because it depended on
assumptions that the two Navy divers knew each other, they communicated to
each other about the appellant, and the diver that the interviewer knew in turn
influenced the nonselection. Id.
On petition for review, the appellant argues that the agency destroyed or
withheld pertinent evidence, and he was denied discovery which might have
established the contributing factor element of his case. PFR File, Tab 1 at 6.
However, we do not reach this issue. We find that it is immaterial to the outcome
of the appeal because the appellant did not make a nonfrivolous allegation that
the agency subjected him to a personnel action in connection with his
nonselections for positions in the Department of the Air Force. The appellant has
been very clear that the personnel actions he is challenging are not the
Department of the Air Force’s nonselections per se but his employing agency’s
alleged interference in the selection processes. PFR File, Tab 1 at 6; IAF, Tab 1
at 39-40, Tab 56 at 3. There is no indication or even a bare allegation that the
Navy diver at issue had any authority to take, direct others to take, recommend, or
approve any personnel action against the appellant, which is a prerequisite for a
prohibited personnel practice under 5 U.S.C. § 2302(b). It appears that the
appellant and this enlisted Navy diver shared the same direct supervisor, and in
fact, the appellant alleges that the Navy diver was technically subordinate to him.
IAF, Tab 1 at 53, 82, 85, Tab 37 at 10. Even assuming that the Navy diver
somehow interfered with the Department of the Air Force’s selection processes,
there is simply no basis to find that he was acting in his official capacity, and5
therefore, he could not have subjected the appellant to a prohibited personnel
practice.2 See Lopez v. Veterans Administration , 12 M.S.P.R. 187, 191 (1982).
As the administrative judge correctly noted, the Board has stated that
“blacklisting” could constitute a prohibited personnel practice under 5 U.S.C.
§ 2302(a)(2)(A). ID at 11 n.6; see Mattil v. Department of State , 118 M.S.P.R.
662, ¶ 23 (2012). However, the alleged blacklisting in Mattil was committed by
employees of the respondent agency with respect to employment opportunities
within the agency. 118 M.S.P.R. 662, ¶ 23. The allegations in the instant appeal
are different because they pertain to a coworker’s alleged denigration of the
appellant to officials in another agency. This is not to say that there is no viable
reprisal claim available to the appellant. The Department of the Air Force’s
nonselection is certainly a personnel action under 5 U.S.C. § 2302(a)(1)(A)(i),
and in an IRA appeal with the Department of the Air Force as the respondent, the
appellant might be able to prove contributing factor through the Navy diver under
a cat’s paw theory. See Aquino v. Department of Homeland Security ,
121 M.S.P.R. 35, ¶ 19 (2014). In such a scenario, the nonselection itself would
be the personnel action and the selecting official for the Department of the
Air Force the alleged retaliating official. However, this is not the claim that the
appellant brought.
Because the appellant’s coworker’s alleged interference with the
selection process at another agency is not a “personnel action” under 5 U.S.C.
§ 2302(a)(2)(A), we agree with the administrative judge that the Board lacks
jurisdiction over these claims. See Kochanoff v. Department of the Treasury ,
54 M.S.P.R. 517, 521, (1992).
2 In this regard, this appeal is distinguishable from Cooper v. Department of Veterans
Affairs, 2023 MSPB 24. In Cooper, the Board found that the appellant made a
nonfrivolous allegation that her former supervisor had the authority to recommend a
personnel action, construing the notion of “supervisory or personnel authority . . . quite
broadly to include instances where a manager’s recommendation . . . is given some
weight and consideration, even if no action was ultimately taken against the employee.”
Id., ¶ 11. 6
Constructive Removal
To establish IRA jurisdiction over a constructive removal claim, an
appellant must show that his resignation was a personnel action within the
meaning of 5 U.S.C. § 2302(a)(2)(A). Vaughan v. Department of Agriculture ,
116 M.S.P.R. 493, ¶ 8 (2011). Just as in a direct appeal under 5 U.S.C.
§ 7513(d), a resignation is actionable in an IRA appeal only if the appellant
shows that it amounted to a constructive removal. See Bravo v. Department of
Veterans Affairs , 83 M.S.P.R. 653, ¶ 12 (1999). The legal standards in both types
of appeal are the same. Vaughn, 116 M.S.P.R. 493, ¶ 8. To prove that a
resignation amounted to a constructive removal, an appellant must show that he
lacked a meaningful choice in the matter and that it was the agency’s wrongful
actions that deprived him of that choice. See Bean v. U.S. Postal Service ,
120 M.S.P.R. 397, ¶ 8 (2013).
In this case, the administrative judge found that the appellant failed to
make a nonfrivolous allegation that his resignation was involuntary. ID at 8-10.
She found that the appellant was alleging constructive removal based on
intolerable working conditions but that the working conditions that the appellant
alleged were not so intolerable that a reasonable person in his situation would
have felt compelled to resign because of them. Id. She reasoned that, although
the appellant might have been faced with the choice of resigning and remaining in
an unpleasant job, this situation did not mean that his decision to leave was
involuntary. ID at 9.
On petition for review, the appellant argues that he was denied the
opportunity to conduct proper discovery on the issue of his constructive removal.
PFR File, Tab 1 at 4-5. However, the Board has found that to be entitled to
discovery in an IRA an appellant must first set forth nonfrivolous jurisdictional
allegations. Sobczak v. Environmental Protection Agency , 64 M.S.P.R. 118, 122
(1994). Moreover, even assuming that the appellant was improperly denied full
discovery on the constructive removal issue, he has not explained with specificity7
what information he hoped to obtain or how such information might have helped
him meet his burden of proof. See Sherwood v. Department of Veterans Affairs ,
88 M.S.P.R. 208, ¶ 11 (2001); Karapinka v. Department of Energy , 6 M.S.P.R.
124, 127 (1981).
The appellant also disputes the administrative judge’s finding that his
allegations amounted to a “[d]issatisfaction with work assignments, a feeling of
being unfairly criticized, or difficult or unpleasant working conditions [which]
are generally not so intolerable as to compel a reasonable person to resign.”
PFR File, Tab 1 at 5-6; ID at 9 (quoting Miller v. Department of Defense ,
85 M.S.P.R. 310, ¶ 32 (2000)). We agree with the appellant. The administrative
judge’s characterization of the events that led to appellant’s resignation is not
inaccurate, but it does understate their magnitude.
The appellant’s complaints about the way that the agency treated him
predate his first protected activity (the October 29, 2013 Inspector General
complaint) and even predate his April 8, 2013 appointment. IAF, Tab 1 at 75-77,
Tab 37 at 8-9. Although all of these matters would normally be relevant to the
issue of whether the appellant was constructively removed, see Heining v.
General Services Administration , 68 M.S.P.R. 513, 519-20 (1995) (endorsing a
totality-of-the-circumstances approach to the issue of voluntariness), only the
ones occurring after the responsible officials became aware of his disclosure
would be relevant to the issue of whether he was constructively removed in
retaliation for protected activity, see Davis v. Department of Defense ,
106 M.S.P.R. 560, ¶ 12 (2007) (finding that a protected disclosure could not be a
contributing factor in a personnel action that predated it), aff’d, 278 Fed. App’x
1009 (Fed. Cir. 2008). According to the appellant, the relevant agency officials
became aware of his Inspector General complaint no later than December 2013,
and after that, his working conditions deteriorated markedly. IAF, Tab 37 at 8-9.
Even considering only the matters that occurred in December 2013, and
later, we find that the appellant made a nonfrivolous allegation that the agency8
coerced his resignation. He alleged that the agency stripped away his supervisory
and other duties, usurped his authority by supervisors passing him over to work
with his would-be subordinates, set him up to fail, withheld favorable
assignments, and forced him to endure periods of little to no substantive work.
IAF, Tab 23 at 20. The appellant further alleged that the agency improperly
withheld his promotion to full performance level, delayed giving him his
performance plan by 9 months, and even then, failed to give him a proper
performance plan. Id. He also alleged that his supervisor and his coworkers
exhibited outward hostility towards him, that his supervisor told him that no relief
would come from his Inspector General complaint, and that the agency never
gave him a performance evaluation, which prevented him from moving to another
position in the agency. Id. The appellant supported these general assertions with
documentary evidence and specific allegations of fact. IAF, Tab 1 at 78-80, 82,
85, Tab 23 at 12-18, 23-75, Tab 37 at 6-13. The Board and the Federal Circuit
have previously found that similar sets of circumstances can support a
constructive removal claim.3 E.g., Shoaf v. Department of Agriculture , 260 F.3d
1336, 339-40 (Fed. Cir. 2001); Ragland v. Department of the Army , 84 M.S.P.R.
58, ¶¶ 8-10 (1999); Bravo, 83 M.S.P.R. 653, ¶¶ 13-15; Markon v. Department of
State, 71 M.S.P.R. 574, 580-83 (1996).
3 The appellant also alleges that he brought these matters to the agency’s attention prior
to his resignation, thereby giving the agency an opportunity to ameliorate the conditions
which he claims forced his resignation. IAF, Tab 23 at 16-17; see Bravo, 83 M.S.P.R.
653, ¶ 14 (1999). However, it is not clear whether there might have been other avenues
of redress of which the appellant failed to avail himself before resigning. Although an
appellant is not necessarily required to pursue all potential avenues of redress before
resigning due to intolerable working conditions, see Heining v. General Services
Administration, 68 M.S.P.R. 513, 523 (1995), he must at least make reasonable efforts
in this regard, see Baker v. U.S. Postal Service , 84 M.S.P.R. 119, ¶ 22 (1999) (finding
that the appellant did not prove that his resignation was involuntary when, among other
things, he failed to take reasonable steps in seeking redress of the conditions underlying
his resignation). Whether the appellant failed to take reasonable steps to seek redress
prior to his resignation will likely be an issue on remand.9
Furthermore, not only might a reasonable person feel compelled to resign
under these circumstances, but the appellant has made a nonfrivolous allegation
that these circumstances were the result of the agency’s wrongful actions.
Some of the agency’s alleged actions were wrongful on their face, including its
failure to give the appellant a performance plan until 9 months into his tenure and
its failure to give him a performance evaluation at any point during his nearly
2 years of service. See 5 C.F.R. §§ 430.206(b)(2) (“Performance plans shall be
provided to employees at the beginning of each appraisal period (normally within
30 days).”), 430.208(a) (“As soon as practicable after the rating period a . . .
rating of record shall be given to each employee.”). The remainder of the
agency’s actions would be wrongful if they were motivated by whistleblower
retaliation, as the appellant claims.
For these reasons, we find that the appellant made a nonfrivolous
allegation that his resignation constituted a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii). We also find that the appellant made a nonfrivolous
allegation that he engaged in protected activity and that at least some of that
protected activity, the October 29, 2013 Inspector General complaint, was a
contributing factor in the claimed personnel action. Supra pp. 4, 8; IAF, Tab 37
at 8-9. Furthermore, as explained above, we find that the appellant exhausted his
administrative remedies with respect to the constructive removal claim. Supra
p. 4. Having thus established IRA jurisdiction over his constructive removal
claim, the appellant is entitled to a hearing on the merits.4
4 To establish jurisdiction over a constructive removal appeal under 5 U.S.C. chapter
75, an appellant must prove by preponderant evidence that his resignation was
tantamount to a forced removal. Garcia v. Department of Homeland Security , 437 F.3d
1322, 1344 (Fed. Cir. 2006) (en banc). An appellant who makes a nonfrivolous
allegation of jurisdiction in such an appeal is entitled to a jurisdictional hearing, and an
appellant who establishes jurisdiction thereby prevails on the merits of his appeal as
well. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643 (Fed. Cir. 1985);
Quiet v. Department of Transportation , 104 M.S.P.R. 292, ¶ 6 (2006). However, in an
IRA appeal, an appellant establishes jurisdiction, in relevant part, by making a
nonfrivolous allegation that the agency subjected him to a personnel action under
5 U.S.C. § 2302(a)(2)(A). Yunus v. Department of Veterans Affairs , 242 F.3d 1367,10
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 reincorporate prior findings as
appropriate, consistent with this Remand Order.5
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
1371 (Fed. Cir. 2001); 5 C.F.R. § 1201.57(b); see Perkins v. Department of Veterans
Affairs, 98 M.S.P.R. 250, ¶ 23 (2005). In an IRA appeal, there is no such thing as a
jurisdictional hearing; an appellant who establishes jurisdiction by making the requisite
nonfrivolous allegations is entitled to a hearing on the merits. Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434, ¶ 22 (2016). Therefore, the appellant’s
nonfrivolous allegation that the agency constructively removed him would not be
sufficient to establish jurisdiction over a chapter 75 constructive removal appeal, but it
is sufficient to establish jurisdiction over the instant IRA appeal. Whether the appellant
can prove by preponderant evidence that his resignation amounted to a constructive
removal goes to the merits of his claim.
5 After the close of record on review, the appellant filed a motion for leave to submit an
additional pleading in which he requested to submit new information in support of his
appeal. PFR File, Tab 9. Because we are remanding this appeal, we deny this motion.
The appellant will have the opportunity to submit additional evidence and argument on
remand, and, to the extent it is relevant to the issues in this appeal, the administrative
judge should consider it.11 | Brooks_Robert_A_SF-1221-17-0131-W-1__Remand_Order.pdf | 2024-05-08 | ROBERT BROOKS v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-1221-17-0131-W-1, May 8, 2024 | SF-1221-17-0131-W-1 | NP |
1,515 | https://www.mspb.gov/decisions/nonprecedential/Ayala_EmmanuelAT-0752-23-0043-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EMMANUEL AYALA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-23-0043-I-1
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hector Torres , Tampa, Florida, for the appellant.
Managing Counsel , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his initial appeal from an unspecified agency
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
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).
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 administrative judge correctly dismissed the appeal for lack of jurisdiction.
¶2The administrative judge correctly determined that the Board lacks
jurisdiction over this matter as an adverse action appeal because the appellant, as
a nonpreference-eligible, nonsupervisory, nonmanagerial Postal Service
employee, who is not engaged in personnel work, has no adverse action appeal
rights. Initial Appeal File, Tab 7, Initial Decision (ID) at 2-4; see Clark v. U.S.
Postal Service, 118 M.S.P.R. 527, ¶ 7 (2012).2 Because the appellant failed to
make any nonfrivolous allegation to the contrary, the administrative judge also
rightly determined the appellant had no right to a hearing. ID at 1; see O’Neal v.
U.S. Postal Service , 39 M.S.P.R. 645, 649, aff’d, 887 F.2d 1095 (Fed. Cir. 1989)
(Table).
The evidence and argument provided by the appellant for the first time on review
does not provide a basis for disturbing the initial decision.
¶3The appellant argues for the first time on review concerning an on-the-job
injury resulting in hospitalization and incarceration, and he alleges that the
agency took several actions, such as placing him in an emergency off-duty status
on or about September 14, 2022, and subjecting him to a discriminatory, hostile
2 Because the appellant did not clarify what action he was appealing, the administrative
judge assumed that the appellant was attempting to appeal some type of adverse action.
ID at 1 n.1.2
environment since at least 2018. Petition for Review File, Tab 1 at 1-14. He
asserts that he has not had the “proper time to appeal or respond to the various
letter[s] due to the loss of work and countless doctors [sic] appoin[t]ments and
court dates.” Id. at 4. He states that since 2018 he has “been removed for
exercising [his] right to file numerous complaints[,] greivancies [sic] [and] EEO
and labor charges” and that “management will stop at no cost to remove and fire
[him] from [his] employment with the Postal Service.” Id. He attaches
supporting documentation. Id. at 1-3, 5-14.
¶4The Board generally will not consider an argument or evidence raised for
the first time in a petition for review absent a showing that, despite the
appellant’s due diligence, was not available prior to the administrative judge’s
closing of the record. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R.
§ 1201.115(d). Moreover, 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. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1990); 5 C.F.R. § 1201.115(d). The U.S.
Court of Appeals for the Federal Circuit has consistently upheld the Board’s
regulatory requirement that parties must raise arguments before the assigned
administrative judge, or the full Board may properly decline to review those
arguments. McClenning v. Department of the Army , 2022 MSPB 3, ¶ 11 (2022).
¶5Here, because the appellant has not established that his allegations about the
agency’s actions were based on any previously unavailable evidence, they cannot
be considered as new under 5 C.F.R. § 1201.115(d); thus, we need not consider
them. See Banks, 4 M.S.P.R. at 271; 5 C.F.R. § 1201.115(d) (providing that
evidence is new when it contains information that is unavailable despite due
diligence when the record closed). Regardless, the appellant’s evidence and
argument on review is not of sufficient weight to change the outcome of this
appeal because none of it shows that he is the type of Postal Service employee3
who may appeal an adverse action or establishes any other basis for Board
jurisdiction. ID at 2-4; see Clark, 118 M.S.P.R. 527, ¶ 7. To the extent that the
appellant claims he has suffered retaliation for filing complaints, grievances, and
“EEO and labor charges,” such claims are not a source of Board jurisdiction, and
Postal Service employees lack individual right of action (IRA) appeal rights. See
Hicks v. U.S. Postal Service , 114 M.S.P.R. 232, ¶ 13 (2010) (holding that a Postal
Service employee’s allegations of prohibited personnel practices under 5 U.S.C.
§ 2302(b)(1) and (9) do not confer jurisdiction on the Board in the absence of an
otherwise appealable action); Matthews v. U.S. Postal Service , 93 M.S.P.R. 109,
¶ 13 (2002) (stating that Postal Service employees may not file IRA appeals under
5 U.S.C. § 1221 because they are not covered by the Whistleblower Protection
Act).
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.4
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 obtain5
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 6
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. 7
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 | Ayala_EmmanuelAT-0752-23-0043-I-1__Final_Order.pdf | 2024-05-08 | EMMANUEL AYALA v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-23-0043-I-1, May 8, 2024 | AT-0752-23-0043-I-1 | NP |
1,516 | https://www.mspb.gov/decisions/nonprecedential/Allen_JericDC-0714-21-0128-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JERIC ALLEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0714-21-0128-I-1
DATE: May 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jeric Allen , Durham, North Carolina, pro se.
Winnie Jordan Reeves , Winston-Salem, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to prosecute. For the reasons discussed
below, we GRANT 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.
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).
2
BACKGROUND
The appellant was removed from the position of Food Service Worker,
WG-3, effective November 13, 2019, under the authority of 38 U.S.C. § 714, the
Department of Veterans Affairs Accountability and Whistleblower Protection Act
of 2017, based on three charges. He filed a formal equal employment opportunity
(EEO) complaint alleging that his removal was in retaliation for his prior EEO
activity, and the agency issued a final agency decision finding that the appellant
had failed to prove his claim. Initial Appeal File (IAF), Tab 7-15. The appellant
then filed this mixed case appeal. IAF, Tab 1.
On January 28, 2021, the parties held a telephonic status conference and
agreed upon extending the discovery deadlines. IAF, Tab 12 at 3. The
administrative judge set a deadline for prehearing submissions of April 5, 2021,
and scheduled a prehearing conference for April 9, 2021.2 Id. The appellant
additionally raised an affirmative defense of disability discrimination, and the
administrative judge ordered him to submit supporting evidence by March 26,
2021. IAF, Tab 13 at 8. The appellant did not respond to the affirmative defense
order.
On March 29, 2021, the administrative judge scheduled a hearing date and
ordered the parties to participate in a test of the video conference system. IAF,
Tab 15 at 1, 3.3 The parties were ordered to contact the administrative judge’s
paralegal to schedule a time to conduct the test at least 1 week before the
scheduled hearing on April 13, 2021. Id. at 3. The appellant failed to contact the
paralegal or respond to her phone calls and emails regarding the test conference.
IAF, Tab 17 at 2. Moreover, the appellant failed to submit prehearing
submissions, which were due by April 5, or appear for the prehearing conference
2 The administrative judge originally scheduled the prehearing conference for April 7
but subsequently rescheduled it for April 9, 2021. IAF, Tab 14 at 1.
3 Although the deadline to respond to the affirmative defense order had passed, the
administrative judge made no mention of the missed deadline in this order. IAF, Tab 15
at 1-3.
3
scheduled for April 9, 2021. Id. at 1-2. As such, the administrative judge
ordered the appellant to show cause as to why the appeal should not be dismissed
for failure to prosecute. Id. at 1-3. The appellant similarly failed to respond to
this order.
The administrative judge subsequently issued an initial decision dismissing
the appeal for failure to prosecute. IAF, Tab 18, Initial Decision (ID) at 1.
Specifically, the administrative judge found that the appellant failed to file
prehearing submissions, participate in the prehearing conference, respond to the
affirmative defense order, participate in the video conference testing, or respond
to the final show cause order regarding sanctions. ID at 3-4.
The appellant has filed a petition for review alleging that he was
hospitalized and incapacitated from April 4 through April 12, 2021. Petition for
Review (PFR) File, Tab 1 at 4, 6. He provided medical documentation supporting
his hospitalization. PFR File, Tab 1 at 6, Tab 5 at 5. The agency has responded
to his petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
Dismissal for failure to prosecute is an extreme sanction that may be
imposed if a party fails to prosecute or defend an appeal. Chandler v.
Department of the Navy , 87 M.S.P.R. 369, ¶ 6 (2000). The imposition of such a
severe sanction, however, must be used only when necessary to serve the ends of
justice, such as when a party has failed to exercise basic due diligence in
complying with an order or has exhibited negligence or bad faith in his efforts to
comply. Id. The severe sanction of dismissal with prejudice for failure to
prosecute an appeal should not be imposed when a pro se appellant has made
incomplete responses to the Board’s orders but has not exhibited bad faith or
evidenced any intent to abandon his appeal, and appears confused by Board
procedures. Id. Furthermore, the failure to obey a single order does not
ordinarily justify dismissal for failure to prosecute. Id.
4
The administrative judge found that the appellant failed to file prehearing
submissions, participate in the prehearing conference, respond to the affirmative
defense order, participate in the video conference testing, or respond to the final
show cause order regarding sanctions. ID at 3-4. However, the appellant’s
evidence demonstrates that he was unexpectedly hospitalized from April 4-12,
2021, which period included the deadline for the prehearing submissions and the
date of the prehearing conference. IAF, Tab 12 at 3; PFR File, Tab 1 at 6. The
appellant’s hospitalization began prior to and continued through the deadline for
contacting the administrative judge’s paralegal to test the video conference
system. IAF, Tab 15 at 3; PFR File, Tab 1 at 6. Although the paralegal
attempted to contact the appellant via phone and email, it is unclear when these
attempted contacts occurred or whether the appellant was already hospitalized at
that time. IAF, Tab 17 at 2. Thus, we find that the appellant was hospitalized on
the occasions he failed to prosecute his appeal, except regarding his failure to
respond to the affirmative defense order and the final order to show cause. IAF,
Tab 13 at 8, Tab 17 at 2; PFR File, Tab 1 at 6.
Under the circumstances of this appeal, we find that the sanction of
dismissal for failure to prosecute is not warranted. The Board has found that an
appellant’s medical treatment can represent good cause for a failure to comply
with an administrative judge’s orders. Monley v. U.S. Postal Service ,
74 M.S.P.R. 27, 29-30 (1997); see also Reynolds v. Department of
Transportation, 17 M.S.P.R. 564, 566 (1983) (reversing a dismissal for failure to
prosecute when the appellant missed the hearing due to medical reasons).
Moreover, the Board has found dismissal for failure to prosecute to be
inappropriate when, although the appellant failed to respond to some orders and
missed a prehearing conference, he nonetheless participated in an earlier status
conference and responded to other orders, and his conduct, although unresponsive
and incomplete, did not exhibit bad faith or evidence an intent to abandon the
appeal. Wiggins v. Department of the Air Force , 113 M.S.P.R. 443, ¶¶ 12-14
5
(2010). The appellant here responded to a timeliness show cause order,
participated in an earlier status conference, and provided responses to the
agency’s discovery requests. IAF, Tab 7, Tab 12 at 1, Tab 16 at 12-23. We
therefore find that the appellant’s unresponsiveness to the two orders, in light of
his prior participation in the appeal and subsequent hospitalization, does not
evidence bad faith or an intent to abandon his appeal. See Wiggins, 113 M.S.P.R.
443, ¶¶ 12-14.
Further bolstering this finding is the appellant’s medical evidence, which
suggests that his hospitalization stemmed from an altered mental status. PFR
File, Tab 5 at 5.4 Moreover, the appellant’s hospital discharge summary
recommends multiple follow-up visits for continued treatment. PFR File, Tab 1
at 6. As such, the record suggests that the appellant may have suffered from
various health effects leading up to and following his hospitalization. Given that
the deadline to respond to the affirmative defense order fell just 9 days before his
hospitalization, and the deadline to respond to the final show cause order was
1 week after his discharge, we find that the appellant’s failure to respond to these
two orders did not represent an intent to abandon his appeal. See Wiggins,
113 M.S.P.R. 443, ¶¶ 13-14 (reversing a dismissal for failure to prosecute when
the appellant failed to obey two orders from the administrative judge).
In remanding this appeal, we note that appellants are expected to comply
with all orders issued by the Board’s administrative judges. Id., ¶ 15.
Accordingly, on remand, the appellant must be more diligent in complying with
the administrative judge’s orders and in pursuing his appeal to avoid the
imposition of sanctions necessary to serve the ends of justice. Id. The
4 These documents, which predate the issuance of the initial decision, were submitted as
part of a reply to the agency’s response to the petition for review. As such, they were
untimely by 2 days. PFR File, Tab 2 at 1, Tabs 3, 7; see 5 C.F.R. §§ 1201.23,
1201.114(e). The agency has not objected to these documents or claimed any prejudice.
In these circumstances, given what the records indicate regarding the appellant’s
medical conditions and mental state, we exercise our discretion to consider them. See
5 C.F.R. § 1201.114(g).
6
administrative judge on remand should provide the appellant with an opportunity
to explain his failure to respond to the affirmative defense order, which was due
prior to the appellant’s hospitalization. Should the appellant fail to justify this
specific failure to respond, the administrative judge may impose various
sanctions, if any, as appropriate. See Simon v. Department of Commerce ,
111 M.S.P.R. 381, ¶ 14 (2009) (discussing various sanctions appropriate for an
appellant’s failure to respond to an affirmative defense order); 5 C.F.R.
§ 1201.43.
Finally, the appellant has filed a motion to stay the proceedings until he has
recovered. PFR File, Tab 5 at 1. Given the passage of time and the ill-defined
recovery period, and the fact that we are remanding this appeal, we decline to rule
on this motion. On remand, the administrative judge should gather more
information as necessary and rule on the motion.
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. | Allen_JericDC-0714-21-0128-I-1__Remand_Order.pdf | 2024-05-08 | JERIC ALLEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0714-21-0128-I-1, May 8, 2024 | DC-0714-21-0128-I-1 | NP |
1,517 | https://www.mspb.gov/decisions/nonprecedential/Yancey_Carol_D_AT-1221-22-0134-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROL D. YANCEY,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
AT-1221-22-0134-W-1
DATE: May 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
David R. Schleicher , Esquire, Waco, Texas, for the appellant.
Lindsey Ann Gotkin , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in her individual right of action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the initial decision, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
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).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant is a GS-12 Budget Analyst with over 32 years of Federal
service. Initial Appeal File (IAF), Tab 1 at 1. In or around January 2020, the
Acting Superintendent at the appellant’s worksite asked her to sign a direct
charge authorization (DCA) form certifying the availability of funds for a site
visit. IAF, Tab 6 at 18-19, 23. The appellant initially returned the form to the
Acting Superintendent unsigned, then returned a copy with three X’s instead
of her signature, and later, after the Acting Superintendent again asked the
appellant to sign her name to the form, she stated, “I can’t be forced signed
anything not required or that I don’t feel comfortable signing.” Id. at 24-38. On
February 10, 2020, the Acting Superintendent reprimanded the appellant for
failing to sign the DCA form and for failing to follow the agency’s leave
requesting procedures. Id. at 18-21.
The appellant filed this IRA appeal alleging that the letter of reprimand
was retaliatory for refusing to obey an order that would require her to violate a
law, rule, or regulation in violation of 5 U.S.C. § 2302(b)(9)(D). IAF, Tab 1.
After finding jurisdiction over the appeal, IAF, Tab 11, the administrative judge
held a hearing on the merits, IAF Tab 30. In an initial decision, the
administrative judge found that the appellant exhausted some, but not all, of her
allegations before the Office of Special Counsel (OSC) and that she failed to
prove by preponderant evidence that her supervisor’s order would have required
her to violate a law, rule, or regulation.2 IAF, Tab 32, Initial Decision (ID).
Accordingly, he denied corrective action. ID at 13. The 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, 7.
2 The administrative judge found that the reasonable belief standard contained in
5 U.S.C. § 2302(b)(8) does not apply to claims under 5 U.S.C. § 2302(b)(9)(D). IAF,
Tab 32, Initial Decision at 12-13. We agree with the administrative judge’s finding for
the reasons stated in the initial decision.2
On review, the appellant argues that the administrative judge erred
in finding that she did not exhaust all of her claims before OSC. PFR File,
Tab 1 at 19-21. She asserts that, at the hearing, the administrative judge
instructed the appellant not to introduce testimony regarding exhaustion because
it was not in dispute and because the agency stipulated that the appellant had
exhausted her administrative remedies. Id. at 4, 19-24 (citing Hearing Transcript
at 119:6-14). The appellant attaches several documents to her petition for review
and asserts that the documents prove that all claims were exhausted before OSC.
Id. at 24, 202-36. Further, the appellant argues that the administrative judge
erred in finding that she failed to prove that her supervisor’s order would have
required her to violate a law, rule, or regulation. Id. at 24-28. She notes that the
administrative judge did not address testimony from multiple witnesses in
concluding that the agency rule cited by the appellant did not apply and, further,
that he did not address the appellant’s argument that the name on the donation
account at issue specified that the funds were for use at a different national park,
in violation of law, rule, or regulation. Id.
We find that the administrative judge erred in concluding that the appellant
failed to exhaust her claims with OSC. ID at 7-10. As an initial matter,
exhaustion is a legal conclusion to which parties cannot stipulate. See King v.
Department of Veterans Affairs , 105 M.S.P.R. 21, ¶ 16 n.2 (2007) (stating that,
although parties may stipulate to facts, they may not stipulate to legal
conclusions). Although we agree with the appellant that the administrative judge
should have permitted testimony on the issue of exhaustion, there is sufficient
evidence in the existing record to find that the appellant exhausted her
administrative remedies as to all of her claims, as set forth below.
An appellant in an IRA appeal must exhaust her administrative remedies by
seeking corrective action from OSC before seeking corrective action from the
Board. 5 U.S.C. § 1214(a)(3). The substantive requirements of exhaustion are
met when an appellant provided OSC with a sufficient basis to pursue an3
investigation; however, an appellant may give a more detailed account of her
whistleblowing activity before the Board than she did to OSC. Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶ 10 (2022). An appellant may
demonstrate exhaustion through her initial OSC complaint, correspondence with
OSC, or other sufficiently reliable evidence, such as an affidavit or declaration
attesting that the appellant raised with OSC the substance of the facts in the
Board appeal. Id., ¶ 11. Exhaustion must be proved by preponderant evidence.
Id.; 5 C.F.R. § 1201.57(c)(1).
In its close out letter, OSC summarized that the appellant alleged that the
agency retaliated against her because she “refused to sign the Direct Charge
Authorization form because the form was improper and the funds and the account
being used as indicated on the form violated federal law and agency rules and
regulations.” IAF, Tab 1 at 17. Before the administrative judge, the appellant
asserted 12 explanations as to why she believed the DCA form was improper.
IAF, Tab 4 at 6-7. The administrative judge found that only nine explanations
that were explicitly raised with OSC were exhausted. ID at 7-9. We disagree.
The appellant notified OSC of the basis of her complaint, i.e., that the agency
retaliated against her for refusing to obey an order which she believed to violate a
law, rule, or regulation. IAF, Tab 1 at 17-18. Appellants are permitted to
provide more detail at the Board than they did to OSC. Chambers, 2022 MSPB 8,
¶ 10. We find that the explanations raised in the proceedings before the
administrative judge are substantively similar to those that the appellant explicitly
raised with OSC. Compare IAF, Tab 1 at 15-18, with IAF, Tab 4 at 6-7. Based
on the appellant’s communications with OSC, we find that OSC had a sufficient
basis to pursue an investigation of her claims and she therefore satisfied her4
burden to prove exhaustion.3 On remand, the administrative judge shall
adjudicate these claims on the merits.
On review, the appellant has also challenged the administrative judge’s
conclusion that she failed to prove that her supervisor’s request to sign the DCA
form would have violated an agency rule, Director’s Order # 21, asserting that the
administrative judge disregarded testimony from several witnesses that supported
her claim. PFR File, Tab 1 at 24-25. Although the administrative judge may
have implicitly considered the witness testimony in making his findings, the
initial decision does not explicitly discuss it. ID at 10-12. On remand, the
administrative judge shall make explicit findings, including credibility findings,
if necessary, as to the effect of the witness testimony on the appellant’s argument
that her supervisor’s order violated an agency rule.
3 Because we find that the record before the administrative judge was sufficient to prove
exhaustion, we have not considered the documents attached to the appellant’s petition
for review, which do not appear to have been filed before the administrative judge.
PFR File, Tab 1 at 202-36. Accordingly, we do not decide if the documents constitute
new and material evidence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
213-14 (1980) (stating that the Board generally will 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 before the administrative judge despite the party’s due diligence).5
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.4
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.6 | Yancey_Carol_D_AT-1221-22-0134-W-1__Remand_Order.pdf | 2024-05-08 | CAROL D. YANCEY v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. AT-1221-22-0134-W-1, May 8, 2024 | AT-1221-22-0134-W-1 | NP |
1,518 | https://www.mspb.gov/decisions/nonprecedential/White_Mrs.__Beverly_A_DA-0831-22-0375-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BEVERLY A. WHITE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0831-22-0375-I-1
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mrs. Beverly Ann White , Houston, Texas, pro se.
Tanisha Elliott Evans , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) denying her
application for deferred annuity benefits under the Civil Service Retirement
System (CSRS). 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,2 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 find no reason to disturb the administrative judge’s decision that the
appellant did not meet her burden of proving entitlement to a deferred annuity
under CSRS by a preponderance of the evidence. Initial Appeal File (IAF),
Tab 20, Initial Decision (ID) at 11. On review, the appellant challenges the
administrative judge’s allocation of the burden of proof and re-raises her
argument that OPM business records showing that she applied for a refund of her
CSRS contributions and that a refund was authorized are not entitled to
substantial weight.3 Petition for Review (PFR) File, Tab 1 at 5-18, 29. Because
2 The appellant has challenged Vice Chairman Limon’s impartiality with respect to her
case because of his past employment as an attorney for OPM. Petition for Review
(PFR) File, Tab 1 at 17-18; see Board Members,
https://www.mspb.gov/About/members.htm (last visited May 8, 2024). The Board
looks to the disqualification standards Congress established for the Federal judiciary at
28 U.S.C. § 455, which requires recusal “in any proceedings in which [the judiciary’s]
impartiality might be reasonably questioned.” 28 U.S.C. § 455(a); see Baker v. Social
Security Administration , 2022 MSPB 27, ¶ 7. Vice Chairman Limon was not employed
by OPM during the relevant time frame; and even if he had been, the appellant has
offered no specifics regarding the purported conflict of interest. PFR File, Tab 1
at 17-18. Therefore, Vice Chairman Limon has not recused himself from this case.
3 The appellant also argues that the administrative judge denied her right to
cross-examine OPM regarding its business records at the hearing. PFR File, Tab 12
the administrative judge correctly applied the law to the facts of the case, we
affirm the initial decision. ID at 11; see Rint v. Office of Personnel Management ,
48 M.S.P.R. 69, 72, aff’d, 950 F.2d 731 (Fed. Cir. 1991) (Table). To the extent
that the appellant has submitted new arguments on review, we decline to consider
them because she has not shown that they are based on new and material evidence
not previously available despite her due diligence. See Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 34 n.10; Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980).
On review, the appellant also presents 10 letters from friends and family
speaking to her character. PFR File, Tab 1 at 19-28. We decline to consider this
evidence submitted for the first time with her petition for review because the
appellant has not shown that it was unavailable before the close of the record
before the administrative judge despite her due diligence. See Chin v.
Department of Defense , 2022 MSPB 34, ¶ 8; Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980). In addition, this evidence is not of sufficient weight
to warrant an outcome different from that of the initial decision. See Spivey v.
Department of Justice , 2022 MSPB 24, ¶ 15; Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980). The administrative judge did not find that the
appellant’s character was lacking or that her testimony was not credible. ID
at 11. Rather, the administrative judge correctly applied the well-established
principle that OPM records, maintained in the ordinary course of business,
typically outweigh an appellant’s uncorroborated testimony that she never
received a refund. ID at 11; see Rint, 48 M.S.P.R. at 72. Thus, we affirm the
initial decision.
at 11. However, we note that an OPM representative was present at the hearing in a
representative capacity and not as a witness. IAF, Tab 17, Hearing Recording. The
appellant did not avail herself of the opportunity to submit a written list of requested
witnesses in response to the administrative judge’s order. IAF, Tab 7 at 2-3. 3
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.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.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. 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 | White_Mrs.__Beverly_A_DA-0831-22-0375-I-1__Final_Order.pdf | 2024-05-08 | BEVERLY A. WHITE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0831-22-0375-I-1, May 8, 2024 | DA-0831-22-0375-I-1 | NP |
1,519 | https://www.mspb.gov/decisions/nonprecedential/Wade_Joseph_E_AT-1221-20-0341-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH E. WADE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-20-0341-W-1
DATE: May 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
Joseph E. Wade , Miami, Florida, pro se.
Joved Gonzalez-Rivera , Esquire, Mayaguez, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
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,
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
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
On March 1, 2020, the appellant, a WS-2 Housekeeping Aid Supervisor,
filed an appeal with the Board alleging that the agency had wrongfully conspired
to terminate him from his position. Initial Appeal File (IAF), Tab 1 at 3, Tab 3
at 78. The appellant averred that he had received a notice of proposed removal on
February 28, 2020. IAF, Tab 3 at 5. The appellant also alleged that the agency
had done the following: (1) discriminated against him; (2) concealed reports of
on-duty employee drug usage; (3) concealed health code violations that resulted
in wrongful death(s); (4) provided false information about him to the agency’s
Office of the Inspector General (OIG); (5) misplaced evidence relevant to his
innocence; (6) violated departmental procedures; and (7) slandered and/or
defamed him. IAF, Tab 1 at 5. With his initial filings, the appellant submitted
documents pertaining to an agency police investigation into allegations against
him involving on-the-job sexual misconduct, e.g., IAF, Tab 3 at 12-15, as well as
a partially truncated January 2, 2020 newspaper article seemingly regarding the
investigation into the same, id. at 98, 100-01. The appellant also provided a copy
of an undated complaint that he had filed with the Office of Special Counsel
(OSC) wherein he had alleged, among other things, retaliation for
whistleblowing. IAF, Tab 4 at 13-37. The appellant requested a hearing on the
matter. IAF, Tab 1 at 2.
The administrative judge issued a show cause order wherein she explained
that, insofar as the agency had, to date, merely proposed to remove the appellant,
the Board lacked jurisdiction over the matter as an adverse action appeal. IAF,
Tab 7 at 1-2. She ordered the appellant to file evidence and argument as to the
basis of the Board’s jurisdiction. Id. at 2. In response, the appellant filed a
pleading that suggested that he had intended to file an IRA appeal. IAF, Tab 12
at 4, 13. However, the pleading also referenced both the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) and the Veterans2
Employment Opportunities Act (VEOA).2 Id. at 13. Thereafter, the
administrative judge issued a jurisdictional order wherein she explained the
circumstances under which the Board has jurisdiction to adjudicate IRA appeals;
however, the order did not address the Board’s jurisdiction under either USERRA
or VEOA. IAF, Tab 13 at 2-8. In response, the appellant provided three letters
from OSC, including a March 11, 2020 close-out letter that provided him with his
Board appeal rights. IAF, Tab 15 at 4-10.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 30, Initial Decision (ID) at 1, 11. In so doing, she found that the appellant
had failed to exhaust his administrative remedies with OSC regarding either
(1) his purported protected disclosures or (2) the personnel action at issue in his
Board appeal, i.e., his proposed removal. ID at 7-9 & n.8. She further concluded
that the appellant had failed to make a nonfrivolous allegation of a protected
disclosure under 5 U.S.C. § 2302(b)(8) insofar as the appellant’s characterization
of his disclosures was “too vague and non-specific.” ID at 9-11. She also
implicitly concluded that the appellant had failed to make a nonfrivolous
allegation that he had engaged in protected activity under 5 U.S.C. § 2302(b)(9).
ID at 10.
The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply to the agency’s response. Petition
for Review (PFR) File, Tabs 1, 5, 7.3
2 Standard Form 50s included in the record indicated that the appellant is a disabled
veteran. E.g., IAF, Tab 3 at 78. The appellant also averred on his initial appeal form
that he is a “DISABLED SERVICE CONNECTED VETERAN.” IAF, Tab 1 at 5
(punctuation as in original).
3 With his reply, the appellant provides additional documents, to include general
information about the Board and OSC, information regarding his prior Board filings,
and various email communications. PFR File, Tab 7 at 4-14, 18-23. The appellant has
briefly annotated some of these documents. E.g., id. at 8-9. We find that the
documents are not material to the jurisdictional issue, and we do not decide whether
they constitute “new,” previously unavailable evidence. See 5 C.F.R. §§ 1201.114(a)3
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence4 that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (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 an assertion that, if proven, could establish the matter at issue.
5 C.F.R. § 1201.4(s). 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). Any doubt or ambiguity as to whether the
appellant made nonfrivolous jurisdictional allegations should be resolved in favor
of affording the appellant a hearing . Grimes v. Department of the Navy ,
96 M.S.P.R. 595, ¶ 12 (2004). Whether the appellant’s allegations can be proven
on the merits is not part of the jurisdictional inquiry. Lane v. Department of
Homeland Security , 115 M.S.P.R. 342, ¶ 12 (2010).
We find that the appellant made nonfrivolous allegations of two protected
disclosures under 5 U.S.C. § 2302(b)(8) and showed that he exhausted these
claims with OSC.
The appellant referenced numerous disclosures in his filings before the
administrative judge. IAF, Tab 1 at 5, Tab 3 at 2-3, Tab 4 at 20-21. However, in
(4), 1201.115(d).
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).4
her initial decision, the administrative judge concluded that the appellant’s
assertions were “too vague and non-specific” to amount to a nonfrivolous
allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8). ID at 10-11.
We disagree.
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 and safety. 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 any of the
conditions set forth in 5 U.S.C. § 2302(b)(8). Id., ¶ 5. The disclosures must be
specific and detailed, not vague allegations of wrongdoing. Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 6 (2016). In determining
whether an appellant has made a nonfrivolous allegation in an IRA appeal, the
Board may consider matters incorporated by reference, matters integral to the
appellant’s claim, and matters of public record. Hessami, 979 F.3d at 1369 n.5.
The appellant made a nonfrivolous allegation that he made a
protected disclosure to the Occupational Safety and Health
Administration (OSHA).
In his filings before the administrative judge, the appellant referenced
health code violations and he asserted that he had made disclosures regarding
“[v]iolations of public safety” and “[e]ndangering patients’ safety.” IAF, Tab 1
at 5, Tab 3 at 2. He also referenced an OSHA complaint(s), IAF, Tab 4 at 9, and
provided a letter from OSC indicating that he had alleged that he had been
retaliated against for having made a report to OSHA, IAF, Tab 15 at 4.
In a prior Board appeal adjudicated by the same administrative judge, the
appellant submitted an OSHA complaint wherein he disclosed the following:5
(1) the agency’s purported contamination of storm drains; (2) the agency’s
intermixing of biohazardous waste with regular trash; (3) unsecured biohazardous
waste containers; and (4) unsanitary conditions in patient rooms that led to an
“EXTREMELY HIGH RISE IN PATIENTS DEATHS.” Wade v. Department of
Veterans Affairs , MSPB Docket No. AT-3443-19-0380-I-1, Initial Appeal File
(0380 IAF), Tab 5 at 43 (grammar and punctuation as in original).5 Although the
complaint is undated, we can surmise that the appellant filed the same on or about
April 6, 2019, when OSHA apparently referred the appellant to the Environmental
Protection Agency. Id. at 86-88. We find that, through this complaint, the
appellant may reasonably have believed that he had disclosed a substantial and
specific danger to public health and safety. See Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285, ¶¶ 19-20 (2013) (concluding that an
appellant’s disclosure that medical carts were not properly cleaned and restocked
constituted a protected disclosure of a substantial and specific danger to public
health and safety); see also Easterbrook v. Department of Justice , 85 M.S.P.R.
60, ¶ 8 (2000) (concluding that the appellant made a protected disclosure when he
notified OSHA that there were dead pigeons and pigeon excrement in his
workplace). Thus, we find that the appellant made a nonfrivolous allegation of a
protected disclosure vis-à-vis his OSHA complaint. Moreover, insofar as OSC’s
preliminary determination letter specifically references the appellant’s report with
OSHA, we find that the appellant exhausted his administrative remedies regarding
this disclosure. IAF, Tab 15 at 4.
5 Although the appellant submitted this document in another Board appeal, he
referenced both his OSHA complaint and patient safety in his pleadings for this matter;
thus, we find that it is appropriate to consider this filing. See Hessami, 979 F.3d
at 1369 n.5. 6
The appellant made a nonfrivolous allegation that he made a
protected disclosure on August 19, 2019.
The appellant asserted that he made a series of disclosures to both agency
management and agency police on August 19, 2019.6 IAF, Tab 4 at 20-21.
Although the appellant’s description of the majority of his August 19, 2019
disclosures was both vague and conclusory, read together, we interpret his filings
as alleging that, on this date, he disclosed to agency management and agency
police drug-related criminal activity at the agency, to include his having
witnessed agency employees under the influence of illegal narcotics while on
duty. IAF, Tab 1 at 5, Tab 3 at 2-3, Tab 4 at 20-21, 31. We find that this
assertion amounted to a nonfrivolous allegation of a protected disclosure under
5 U.S.C. § 2302(b)(8). See Berkley v. Department of the Army , 71 M.S.P.R. 341,
351-52 (1996) (concluding that the appellant’s allegation that he had witnessed an
apparent theft while on duty constituted a nonfrivolous allegation of a disclosure
of a violation of law). Insofar as the appellant provided documentation showing
that he referenced this purported August 19, 2019 disclosure in his OSC
complaint, we find that he showed that he exhausted his administrative remedies
regarding the same. IAF, Tab 4 at 20; see Mudd, 120 M.S.P.R. 365, ¶ 12
(explaining that an appellant can demonstrate exhaustion by providing, among
other things, an OSC complaint).
The appellant made nonfrivolous allegations that he engaged in protected activity
under 5 U.S.C. § 2302(b)(9), and he showed that he exhausted his administrative
remedies regarding this activity.
The appellant averred before the administrative judge that he had disclosed
information to the following entities: (1) the Department of Veterans Affairs
6 The appellant also alleged that he had made these same disclosures to “EEO.” IAF,
Tab 3 at 2, Tab 4 at 21. However, reprisal for exercising an equal employment
opportunity (EEO) right is a prohibited personnel practice under 5 U.S.C. § 2302(b)(9),
not 5 U.S.C. § 2302(b)(8). See Linder v. Department of Justice , 122 M.S.P.R. 14, ¶¶ 7,
10 (2014). Accordingly, we have considered the appellant’s EEO-related assertions
herein as allegations of protected activity under 5 U.S.C. § 2302(b)(9). 7
Office of Accountability and Whistleblower Protection (OAWP)/OIG; (2) the
agency’s Office of Resolution Management (ORM)/“EEO”;7 (3) “HHP”;8 and
(4) the Board. IAF, Tab 18 at 4. In her initial decision, the administrative judge
acknowledged that the appellant had submitted correspondence from both OAWP
and OIG, and had provided a copy of a complaint alleging employment
discrimination. ID at 10. She did not, however, render an explicit finding as to
whether the appellant made a nonfrivolous allegation that he engaged in any
protected activity as a result of this activity; rather, she implicitly concluded that
the appellant could not have satisfied the subject jurisdictional criterion because
his communications with these entities “appear[ed] to contain the appellant’s
grievances concerning his proposed removal and allegations of discrimination
because of his protected status.” Id. We disagree with this conclusion.
The appellant engaged in protected activity through his disclosure of
information to OAWP/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 (or any
other component responsible for internal investigation or review) in accordance
with applicable provisions of law . Thus, if an appellant’s disclosure of
information to such an entity was lawful, the substance of the disclosure is not
material to whether the appellant has satisfied the subject jurisdictional criterion.9
See Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8 (explaining that,
under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure
7 ORM, which offered alternative dispute resolution for, among other things, equal
employment opportunity (EEO) matters, is now the agency’s Office of Resolution
Management, Diversity & Inclusion. See https://www.va.gov/ormdi/ (last visited
May 8, 2024). We surmise that the appellant’s purported disclosures to both ORM and
“EEO” were one and the same, i.e., his EEO -related complaints.
8 The appellant neither identified “HHP” nor discernably alleged any disclosures made
thereto. We surmise, however, that he was referring to the agency’s Harassment
Prevention Program, which is a subcomponent of the agency’s Office of Resolution
Management, Diversity & Inclusion that is referred to on the agency’s website as
“HPP.” See https://www.va.gov/ORMDI/HPP.asp (last visited May 8, 2024).8
of information to OIG is protected regardless of its content as long as such
disclosure is made in accordance with applicable provisions of law). Here, the
appellant alleged that he disclosed information to OAWP, an agency component
responsible for internal investigation and review. IAF, Tab 18 at 4; see 38 U.S.C.
§ 323(c)(1)(H). Indeed, he provided an email summarizing an initial series of
disclosures that he made to OAWP on October 28, 2019, IAF, Tab 4 at 4-5, as
well as a January 14, 2020 email evincing that OIG had accepted for investigation
some of his allegations, thereby closing OAWP’s investigation, id. at 41. The
appellant’s filings also indicated that he made subsequent, additional disclosures
to OAWP. Id. at 42-47. Accordingly, we find that the appellant made a
nonfrivolous allegation that he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(C) through his disclosure of information to OAWP.10 Insofar as the
appellant provided correspondence with OSC evincing that he raised this
protected activity with OSC, we also find that he showed by preponderant
evidence that he exhausted his administrative remedies regarding the same. IAF,
Tab 15 at 4, 9.
The appellant made a nonfrivolous allegation of protected activity
through one of his prior equal employment opportunity (EEO)/ORM
complaints.
Protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) includes “the exercise
of any appeal, complaint, or grievance right granted by any law, rule, or
regulation . . . with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].”
5 U.S.C. § 2302(b)(9)(A)(i) (emphasis added). Thus, an EEO complaint may be
9 However, the nature of an appellant’s disclosures may be relevant at the merits stage
of an IRA appeal, when an appellant must prove the contributing factor element by
preponderant evidence and the agency can defend itself by providing clear and
convincing evidence that it would have taken the same personnel action absent the
protected activity. See Fisher, 2023 MSPB 11, ¶ 8 n.1; see also Corthell , 123 M.S.P.R.
417, ¶ 13 (setting forth the elements and burden of proving the merits of an IRA appeal
based on a claim of reprisal for perceived activity under 5 U.S.C. § 2302(b)(9)(C)).
10 We are unable to distill from the appellant’s filings any allegations that he disclosed
information directly to the agency’s OIG.9
protected under 5 U.S.C. § 2302(b)(9)(A)(i) if the complaint sought to remedy a
violation of 5 U.S.C. § 2302(b)(8). Bishop v. Department of Agriculture ,
2022 MSPB 28, ¶¶ 15-16.
Here, the appellant provided documents showing that he had filed two
separate EEO complaints, one on August 27, 2019, and one on November 19,
2019. IAF, Tab 4 at 6, 9, 38-40. In his August 27, 2019 complaint, the appellant
alleged that he had been subjected to harassment and a hostile work environment.
Id. at 38-39. Following informal counseling, the agency apparently closed the
matter on November 19, 2019. Id. at 38. That same day, the appellant filed a
second EEO complaint wherein he alleged that the agency had subjected him to
retaliation and harassment for filing, among other things, “Osha complaints.” Id.
at 9 (punctuation as in original). Insofar as the appellant’s August 27, 2019
complaint did not seek to remedy a violation of 5 U.S.C. § 2302(b)(8), it did not
amount to protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). See Mudd,
120 M.S.P.R. 365, ¶¶ 2, 7 (concluding that the Board lacked jurisdiction over an
appellant’s filing of a grievance that did not seek to remedy a violation of
5 U.S.C. § 2302(b)(8)). However, because the appellant seemingly alleged
whistleblower reprisal in his November 19, 2019 complaint, i.e., retaliation for
his disclosures to OSHA, we find that he has made a nonfrivolous allegation of
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). Moreover, we find that the
appellant exhausted this claim with OSC. IAF, Tab 15 at 4-5.
The appellant failed to make a nonfrivolous allegation of protected
activity vis-à-vis his prior activity with the Board.
Lastly, the appellant ostensibly alleged that he engaged in protected
activity vis-à-vis prior activity with the Board. IAF, Tab 18 at 4. Although the
nature of his argument was unclear, OSC’s preliminary determination letter
suggested that the appellant had alleged before OSC that the agency had retaliated
against him for his prior “appeal of a letter of admonishment with the MSPB.”
IAF, Tab 15 at 4; 0380 IAF, Tab 1. However, insofar as the appellant’s prior10
Board appeal did not seek to remedy a violation of 5 U.S.C. 2302(b)(8), we find
that the appellant failed to make a nonfrivolous allegation that he engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). 0380 IAF, Tab 10, Initial
Decision at 4 (finding that the appellant did not make a nonfrivolous allegation
that he engaged in whistleblowing activity that was a contributing factor in the
letter of admonishment); see Mudd, 120 M.S.P.R. 365, ¶¶ 2, 7.
Accordingly, we find that the appellant made nonfrivolous allegations of
two protected disclosures, i.e., his April 2019 OSHA complaint and his
August 19, 2019 drug-related disclosure, and two instances of protected activity,
i.e., his disclosures to OAWP beginning on October 28, 2019, and his
November 19, 2019 EEO complaint, and he exhausted his administrative remedies
with OSC regarding the same.
The appellant made a nonfrivolous allegation of three personnel actions under
5 U.S.C. § 2302(a), and he showed that he exhausted his administrative remedies
regarding two of these three personnel actions.
The appellant identified three personnel actions in his filings before OSC
and the Board: (1) a change in his working conditions; (2) a reassignment; and
(3) his proposed removal. IAF, Tab 1 at 3, Tab 15 at 5, 9. In the initial decision,
the administrative judge found that, although the appellant “may have exhausted
his administrative remedies with OSC” as to his claims regarding changes in his
job duties and his reassignment, he “ha[d] not indicated that he [was] appealing
those actions [with the Board].” ID at 9. She also seemingly concluded that,
although the appellant’s proposed removal constituted a cognizable personnel
action, the appellant could not have exhausted this personnel action with OSC
because he had filed his OSC complaint before the agency had proposed his
removal. ID at 9 & n.8. We disagree with these findings.11
The appellant made a nonfrivolous allegation that the agency
significantly changed his working conditions, and he showed that he
exhausted this personnel action with OSC.
As relevant here, the definition of “personnel action” includes “any . . .
significant change in duties, responsibilities, or working conditions.” 5 U.S.C.
§ 2302(a)(2)(A)(xii). The Board has found that, although “significant change”
should be interpreted broadly to include harassment and discrimination that could
have a chilling effect on whistleblowing or otherwise undermine the merit
system, only agency actions that, individually or collectively, have practical
consequence for an appellant constitute a personnel action covered by section
2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs , 2022 MSPB 17,
¶¶ 15-16. To this end, the agency actions must have a significant effect on the
overall nature and quality of the appellant’s working conditions, duties, or
responsibilities. Id.
Here, in his Board filings, the appellant averred that agency personnel had
harassed him, bullied him, slandered him, defamed him, coerced false testimony
about him, and falsely accused him of criminal activity. IAF, Tab 1 at 5, Tab 3
at 2-3. We find that these contentions, if accepted as true, collectively amount to
a nonfrivolous allegation of a significant change in working conditions. See
Skarada, 2022 MSPB 17, ¶ 18 (concluding that the appellant’s allegations that
agency personnel harassed him, subjected him to a hostile work environment,
subjected him to multiple investigations, accused him of “fabricating data” and of
a Privacy Act violation, refused his request for a review of his position for
possible upgrade, yelled at him, and failed to provide him the support and
guidance needed to successfully perform his duties amounted to a nonfrivolous
allegation of a significant change in his working conditions). Moreover, insofar
as the appellant provided documentation evincing that he raised similar claims
with OSC, we find that the appellant showed that he exhausted his administrative
remedies with respect to this claim. IAF, Tab 4 at 31, Tab 15 at 5, 9.12
The appellant made a nonfrivolous allegation that the agency
reassigned him, and he showed that he exhausted this claim with
OSC.
The definition of “personnel action” also includes “a detail, transfer, or
reassignment.” 5 U.S.C. § 2302(a)(2)(A)(iv). Here, the appellant provided a
document indicating that, on August 23, 2019, he had received a letter “removing
him from acting as in a Supervisor capacity and assigning him to perform
Administrative duties.” IAF, Tab 4 at 38 (punctuation as in original). Thus, we
find that he has made a nonfrivolous allegation of a personnel action under
5 U.S.C. § 2302(a)(2)(A)(iv). See Miles v. Department of Veterans Affairs ,
84 M.S.P.R. 418, ¶ 6 (1999) (explaining that the Board construes pro se pleadings
liberally). We also find that he demonstrated that he exhausted his administrative
remedies regarding this personnel action. IAF, Tab 15 at 5, 9.
The appellant made a nonfrivolous allegation that the agency
proposed his removal; however, he failed to show that he exhausted
this claim with OSC.
A proposed removal is a personnel action under 5 U.S.C. § 2302(a)(2)(A)
(iii), (b)(8), and (b)(9). See Grubb v. Department of the Interior , 96 M.S.P.R.
361, ¶ 25 (2004). In her initial decision, the administrative judge seemingly
concluded that, although the appellant’s proposed removal constituted a
threatened personnel action, the appellant could not have exhausted his proposed
removal with OSC because he had filed his OSC complaint prior to the
February 28, 2020 proposed removal. ID at 9 & n.8. However, the relevant
inquiry was not whether the appellant raised his proposed removal in his initial
OSC complaint but rather whether he had provided OSC with a sufficient basis to
investigate his proposed removal prior to OSC’s March 11, 2020 termination of
its investigation into his complaint. See Ward v. Merit Systems Protection Board ,
981 F.2d 521, 526 (Fed. Cir. 1992) (stating that, to satisfy the exhaustion
requirement of 5 U.S.C. § 1214(a)(3) in an IRA appeal, an appellant must inform
OSC of the precise ground of her charge of whistleblowing, giving OSC a13
sufficient basis to pursue an investigation which might lead to corrective action);
see also MacDonald v. Department of Justice , 105 M.S.P.R. 83, ¶ 10 (2007)
(concluding that the appellant could not have exhausted his suspension with OSC
when OSC had terminated its investigation into his complaint before the agency
had effected his suspension).
Here, the appellant provided a copy of his response to OSC’s preliminary
determination letter, which is dated February 28, 2020, i.e., the date the appellant
received notice of his proposed removal. IAF, Tab 3 at 5, Tab 15 at 11-15. In
this filing, the appellant seemingly made a vague reference to his proposed
removal. IAF, Tab 15 at 14. Specifically, he stated, without clear context, the
following: “[u]nsubstantiated, allegations and rumors do not provide grounds for
termination, as suggested in a memorandum issued along with the evidence
packet, provided by [agency management], on 02/28/20.” Id. (punctuation as in
original). Given the ambiguity of the appellant’s apparent reference to his
proposed removal, we conclude that the appellant did not exhaust this claim with
OSC. See Ellison v. Merit Systems Protection Board , 7 F.3d 1031, 1037 (Fed.
Cir. 1993) (explaining that the exhaustion inquiry requires the Board to determine
whether the appellant has “articulate[d] with reasonable clarity and precision
[before OSC] the basis for his request for corrective action”). Indeed, subsequent
to the issuance of the initial decision in this matter, the appellant filed a separate
complaint with OSC regarding his proposed removal and, thereafter, a separate
IRA appeal related thereto. Wade v. Department of Veterans Affairs , MSPB
Docket No. AT-1221-21-0210-W -1, Initial Appeal File, Tab 1 at 11.
Accordingly, we find that, for purposes of this matter, the appellant has
nonfrivolously alleged two personnel actions for which he showed that he
exhausted his administrative remedies with OSC, i.e., his change in working
conditions and his reassignment. See 5 U.S.C. § 2302(a)(2)(A)(iv), (xii).14
The appellant satisfied the contributing factor jurisdictional criterion.
Although the appellant has not provided a clear timeline of events
regarding all of his allegations, insofar as the appellant, who is pro se, alleged
knowledge by agency officials and a close temporal proximity between his
protected disclosures/protected activity and the personnel actions at issue here,
i.e., his altered working conditions and his reassignment, we find that he has
satisfied the contributing factor jurisdictional criterion. IAF, Tab 4 at 4-5, 21-22,
38; see Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012).
Accordingly, we find that the appellant made a nonfrivolous allegation that
his protected disclosures and his protected activity contributed to his
reassignment and a significant change in his duties and working conditions;
therefore, he is entitled to his requested hearing and a decision on the merits of
his appeal. IAF, Tab 1 at 2; see Salerno, 123 M.S.P.R. 230, ¶ 5. Prior to
conducting a hearing, the administrative judge shall afford the parties a
reasonable opportunity to complete discovery and order the parties to submit any
other evidence that she deems necessary to adjudicate the merits of the
appellant’s IRA appeal. See Lewis v. Department of Defense , 123 M.S.P.R. 255,
¶ 14 (2016). Additionally, because the appellant referenced both USERRA and
VEOA in his filings and the administrative judge did not provide him with
jurisdictional notice related thereto, on remand, the administrative judge shall
clarify whether the appellant intended to raise a USERRA and/or VEOA claim
and, if so, she shall inform him of the applicable burdens and the elements of
proof. IAF, Tab 12 at 13; see Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985) (explaining that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional
issue).15
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.16 | Wade_Joseph_E_AT-1221-20-0341-W-1__Remand_Order.pdf | 2024-05-08 | JOSEPH E. WADE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-20-0341-W-1, May 8, 2024 | AT-1221-20-0341-W-1 | NP |
1,520 | https://www.mspb.gov/decisions/nonprecedential/Wade_Joseph_E_AT-1221-21-0210-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH E. WADE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-21-0210-W-1
DATE: May 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
Joseph E. Wade , Miami, Florida, pro se.
Joved Gonzalez-Rivera , Esquire, Mayaguez, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
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,
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
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
On January 30, 2021, the appellant, a WS-2 Housekeeping Aid Supervisor,
filed an appeal with the Board alleging that the agency had (1) proposed his
removal without sufficient evidence and (2) committed a series of misconduct.
Initial Appeal File (IAF), Tab 1 at 5; Wade v. Department of Veterans Affairs ,
MSPB Docket No. AT-1221-20-0341-W-1, Initial Appeal File (0341 IAF), Tab 3
at 78. With his appeal, the appellant provided a copy of an undated notice of
proposed removal wherein the agency sought to remove him pursuant to
38 U.S.C. § 714 for conduct unbecoming a supervisory Federal employee, i.e.,
numerous instances of on-duty sexual misconduct. IAF, Tab 1 at 7-10. The
appellant also provided a January 28, 2021 close-out letter from the Office of
Special Counsel (OSC) that referenced his proposed removal. Id. at 11-12. The
appellant requested a hearing on the matter. Id. at 2.
The administrative judge issued a jurisdictional order wherein she
explained the circumstances under which the Board has jurisdiction to adjudicate
IRA appeals and she ordered the appellant to provide specific evidence and
argument regarding jurisdiction. IAF, Tab 3 at 2-8. The appellant thereafter
submitted numerous filings, IAF, Tabs 5-6, 8-10, wherein he alleged, among
other things, that the agency had “retaliated against [him] with extreme prejudice,
Malice, and contempt, for engaging in multiple protected activities,
whistleblowing,” IAF, Tab 5 at 25 (grammar and punctuation as in original). In
one of these filings, the appellant referenced “a multitude of report of contacts
formerly investigated by OAPW.”2 IAF, Tab 9 at 7. He also alluded to his
having alerted a facility director of “numerous violations,” IAF, Tab 10 at 4, and
referenced an unspecified Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA) violation, IAF, Tab 8 at 17.
2 The appellant may have intended to reference “OAWP,” the Department of Veterans
Affairs Office of Accountability and Whistleblower Protection. IAF, Tab 9 at 7.2
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 11, Initial Decision (ID) at 1, 10. In so doing, she found that the appellant
had failed to make a nonfrivolous allegation of a protected disclosure under
5 U.S.C. § 2302(b)(8) insofar as his allegations were “too vague and
non-specific.” ID at 8-9. She also found that the appellant had failed to show
that he had exhausted any of his purported disclosures with OSC. ID at 7-9. She
concluded, however, that the appellant had exhausted his administrative remedies
regarding the personnel action at issue, i.e., his proposed removal. ID at 8.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence3 that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (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 an assertion that, if proven, could establish the matter at issue.
5 C.F.R. § 1201.4(s). 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
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).3
1362, 1364, 1369 (Fed. Cir. 2020). Any doubt or ambiguity as to whether the
appellant made nonfrivolous jurisdictional allegations should be resolved in favor
of affording the appellant a hearing . Grimes v. Department of the Navy ,
96 M.S.P.R. 595, ¶ 12 (2004). Whether the appellant’s allegations can be proven
on the merits is not part of the jurisdictional inquiry. Lane v. Department of
Homeland Security , 115 M.S.P.R. 342, ¶ 12 (2010).
We agree with the administrative judge’s conclusion that the appellant failed to
make a nonfrivolous allegation that he made a protected disclosure or engaged in
protected activity in his filings for this appeal.
Here, we discern no basis to disturb the administrative judge’s conclusion
that the appellant failed to make a nonfrivolous allegation that he made a
protected disclosure or engaged in protected activity. ID at 8-9. Indeed, the
appellant’s filings in this matter consisted of a litany of assertions of agency
misconduct absent any clear allegations of protected disclosures or protected
activity related thereto. See Doster v. Department of the Army , 56 M.S.P.R. 251,
253-54 (1993) (concluding that the Board lacked jurisdiction over the appellant’s
IRA appeal when the appellant’s filings contained a litany of allegations of
agency improprieties but failed to discernably allege any disclosures regarding
the same).
We find that it is appropriate to consider the appellant’s filings in a prior IRA
appeal and, in so doing, we find that the appellant made nonfrivolous allegations
that he made protected disclosures and engaged in protected activity.
In their filings before the administrative judge, both the appellant and the
agency referenced a prior IRA appeal filed by the appellant.4 IAF, Tab 7 at 4-6,
Tab 8 at 4. Indeed, the agency argued that, if the administrative judge did not
dismiss this matter for lack of jurisdiction, she should dismiss it on the basis of
adjudicatory efficiency because the appellant’s claims were already “the subject
of his case pending on petition for review.” IAF, Tab 7 at 8-9. In determining
4 Although the appellant referenced “the precious case,” we surmise that he intended to
refer to “the previous case.” IAF, Tab 8 at 4.4
whether an appellant has made a nonfrivolous allegation in an IRA appeal, the
Board may consider matters incorporated by reference, matters integral to the
appellant’s claim, and matters of public record. Hessami, 979 F.3d at 1369 n.5.
In the prior IRA appeal to which the parties refer, the appellant alleged
that, in retaliation for various protected disclosures and activity, the agency had
done the following: (1) proposed his removal; (2) reassigned him; and (3) altered
his working conditions. 0341 IAF, Tab 1 at 3, Tab 15 at 5, 9. In her August 24,
2020 initial decision for the matter, the administrative judge concluded that the
appellant had not exhausted his administrative remedies regarding his proposed
removal with OSC and, accordingly, the Board lacked jurisdiction over the same.
0341 IAF, Tab 30, Initial Decision at 7-9 & n.8. Following receipt of this initial
decision, the appellant apparently filed a new complaint with OSC, i.e., OSC File
No. MA-20-002609, i.e., the complaint that resulted in the January 28, 2021
close-out letter that he has provided here. IAF, Tab 1 at 11-12. In this new OSC
complaint, the appellant alleged whistleblower reprisal and raised the issue of his
proposed removal, ostensibly with an eye towards exhaustion. Id. Given this
series of events, we find that it is appropriate to consider for purposes of this
appeal the appellant’s allegations of protected disclosures and protected activity
in his prior IRA appeal. See Hessami, 979 F.3d at 1369 n.5; see also Miles v.
Department of Veterans Affairs , 84 M.S.P.R. 418, ¶ 6 (1999) (explaining that the
Board construes pro se pleadings liberally).5
In a Remand Order issued concurrent with this order, we conclude that the
appellant exhausted his administrative remedies with OSC and made nonfrivolous
allegations of two protected disclosures under 5 U.S.C. § 2302(b)(8) in his prior
IRA appeal, i.e., (1) an April 2019 complaint with the Occupational Safety and
5 Indeed, with his petition for review, the appellant provides his response to OSC’s
preliminary determination letter for OSC File No. MA-19-5334, i.e., the OSC complaint
at issue in his prior IRA appeal, suggesting that he believes that his two OSC
complaints, and by, extension, his Board appeals, are interrelated. PFR File, Tab 1
at 18-20; 0341 IAF, Tab 15 at 4-10.5
Health Administration and (2) an August 19, 2019 disclosure to agency
management and agency police regarding illegal drug usage. 0341 IAF, Tab 4
at 9, 20-21, Tab 15 at 4. We also find that the appellant exhausted his
administrative remedies with OSC and made nonfrivolous allegations that he
engaged in protected activity vis-à-vis (1) his disclosure of information to the
agency’s Office of Accountability and Whistleblower Protection beginning on
October 28, 2019, and (2) his November 19, 2019 equal employment opportunity
complaint wherein he alleged whistleblower reprisal. 0341 IAF, Tab 4 at 4-5, 9.
Under the circumstances, we find it appropriate to incorporate those findings
here.
The appellant made a nonfrivolous allegation of a personnel action that he
exhausted with OSC.
A proposed removal is a threatened personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii), (b)(8), and (b)(9). See Grubb v. Department of the Interior ,
96 M.S.P.R. 361, ¶ 25 (2004). Here, insofar as the appellant (1) has alleged that
the agency proposed his removal pursuant to 38 U.S.C. § 714 on February 20,
2020, and (2) has provided a close-out letter from OSC referencing the same, we
find that the appellant has made a nonfrivolous allegation of a personnel action
that he exhausted with OSC. IAF, Tab 1 at 5, 7 -12; 0341 IAF, Tab 3 at 5; see
5 U.S.C. § 2302(a)(2)(A)(iii).
The appellant satisfied the contributing factor jurisdictional criterion.
Insofar as the appellant has alleged knowledge by agency officials and a
close temporal proximity between his protected disclosures/protected activity and
his February 20, 2020 proposed removal, we find that he has satisfied the
contributing factor jurisdictional criterion. 0341 IAF, Tab 4 at 4-5, 21-22, 38; see
Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012).
Accordingly, we find that the appellant made a nonfrivolous allegation that
his protected disclosures and his protected activity contributed to his proposed
removal; therefore, he is entitled to his requested hearing and a decision on the6
merits of his appeal. IAF, Tab 1 at 2; see Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016). Prior to conducting a hearing, the administrative
judge shall afford the parties a reasonable opportunity to complete discovery and
order the parties to submit any other evidence that she deems necessary to
adjudicate the merits of the appellant’s IRA appeal. See Lewis v. Department of
Defense, 123 M.S.P.R. 255, ¶ 14 (2016).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.
6 In this appeal, as in his prior IRA appeal, the appellant has generally referenced both
USERRA and the Veterans Employment Opportunities Act. IAF, Tab 8 at 17; PFR File,
Tab 1 at 4. On remand, the administrative judge shall clarify whether the appellant
sought to raise any claims related thereto and, if so, shall inform the appellant of the
applicable burdens and the elements of proof. See Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985 ) (explaining that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional issue).7 | Wade_Joseph_E_AT-1221-21-0210-W-1__Remand_Order.pdf | 2024-05-08 | JOSEPH E. WADE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-21-0210-W-1, May 8, 2024 | AT-1221-21-0210-W-1 | NP |
1,521 | https://www.mspb.gov/decisions/nonprecedential/Varad_ChristinePH-0831-18-0477-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINE VARAD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0831-18-0477-I-1
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christine Varad , Scituate, Massachusetts, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
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) denying as untimely her application for Civil Service Retirement System
(CSRS) survivor annuity benefits. 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. We MODIFY the initial
decision to supplement the administrative judge’s finding that OPM properly
determined that the appellant’s application was untimely filed more than 30 years
after the death of her father and to VACATE the portion of the initial decision
addressing whether the appellant showed that she is a disabled dependent child as
defined in 5 U.S.C. § 8341(a)(4)(B). Except as expressly modified, we AFFIRM
the initial decision, still affirming OPM’s reconsideration decision denying the
appellant’s application.
BACKGROUND
The appellant’s father, a former Federal civilian employee, retired in 1974
and passed away in 1975. Initial Appeal File (IAF), Tab 11 at 22, 24-27. On his
1973 application for retirement, he listed the appellant as an unmarried child
under the age of 22, but he did not indicate that she was disabled. IAF, Tab 1
at 8, Tab 11 at 25. Following the appellant’s father’s death, the appellant’s
mother timely filed an application for CSRS death benefits wherein she listed the
appellant as a dependent student child; however, she did not indicate that the
appellant was disabled. IAF, Tab 1 at 10-11, Tab 13 at 8-9. 2
On March 7, 2017, the appellant filed an application for CSRS survivor
benefits as a disabled dependent child survivor of her father. IAF, Tab 11
at 16-21. In her application, the appellant averred that she became permanently
disabled in 1971 at the age of 16. Id. at 16, 24.
On April 11, 2017, OPM issued an initial decision finding the appellant
ineligible for CSRS survivor benefits. Id. at 14. OPM explained that, pursuant to
5 U.S.C. § 8345(i)(2),2 her application was untimely because she had filed it more
than 30 years after the death of her father. Id. Thereafter, on April 14, 2017,
May 22, 2017, and December 27, 2017, the appellant requested reconsideration of
OPM’s initial decision. Id. at 9-12. The appellant explained that, at the time of
her father’s death, she was unaware of any “survivor rights [she] might have had
as a disabled child associated with [her] father’s [CSRS benefits].” Id. at 12.
The appellant averred that she did not become aware of her potential claim to
benefits until February 2017. Id. On September 7, 2018,3 OPM issued a
reconsideration decision on the matter, affirming the initial decision on the basis
of untimeliness. IAF, Tab 1 at 6-7, Tab 11 at 7-8. Thereafter, the appellant filed
an appeal with the Board. IAF, Tab 1. She did not request a hearing on the
matter. Id. at 2.
The administrative judge issued an initial decision on the written record
affirming OPM’s reconsideration decision. IAF, Tab 16, Initial Decision (ID).
The administrative judge found that the appellant failed to prove her entitlement
to CSRS survivor annuity benefits by a preponderance of the evidence. ID at 2-4.
Specifically, he found that the appellant failed to prove that she “was diagnosed
or even considered disabled before reaching age 18 or that her application was
timely.” ID at 4.
2 OPM’s initial decision erroneously reads “Title 5, Code of Federal Regulations ,
§8345 (i) (2).” IAF, Tab 11 at 14 (emphasis added) (punctuation as in original).
3 The reconsideration decision is erroneously dated September 7, 2017. IAF, Tab 1 at 3,
Tab 16, Initial Decision at 1-2 n.1; Petition for Review File, Tab 5 at 9.3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s application was untimely.
The appellant contends on review that an application for survivor benefits
was timely filed but that her disabled status was omitted inadvertently from both
her father’s 1973 application for retirement and her mother’s 1975 application for
death benefits. Petition for Review (PFR) File, Tab 1 at 8. The appellant asserts
that these “inadvertent and minor errors never intended to deny any rights and
interests.” Id. The appellant also contends that she sought clarity “as to her
rights” from OPM “in the years following the death of her father” but that OPM
did not respond. PFR File, Tab 5 at 9. We hereby supplement the initial decision
to address these arguments and explain further why the appellant’s application
was untimely.
In order to receive an annuity, the survivor of a deceased Federal annuitant
must file an application for benefits either personally or through a representative
within 30 years of the death of the Federal annuitant or other event giving rise to
the benefit. 5 U.S.C. § 8345(i)(2); 5 C.F.R. § 831.643(a). Here, the appellant’s
father, the Federal annuitant, passed away on December 11, 1975; thus, her
application for survivor benefits was due not later than December 11, 2005.4 IAF,
Tab 11 at 22; see 5 U.S.C. § 8345(i)(2).
The appellant’s assertion that her father’s 1973 retirement application
constituted a timely application for disabled dependent child survivor benefits is
unavailing because the application was filed during her father’s lifetime; thus,
any claim for survivor benefits would have been premature. PFR File, Tab 1 at 8;
IAF, Tab 11 at 22, 25-26. Although the appellant’s mother filed an application
for benefits in 1975 shortly after the death of the appellant’s father, IAF, Tab 13
at 8-9, she did not list the appellant as a disabled dependent despite being
4 Although OPM’s reconsideration decision correctly states that the appellant’s
application was untimely because she did not file it within 30 years of the death of her
father, it also erroneously states that her application “should have been filed no later
than January 11, 1976.” IAF, Tab 1 at 7, Tab 11 at 8.4
provided an opportunity to do so. As such, the first and only application for the
benefits sought was not filed until March 7, 2017. ID at 4; IAF, Tab 11 at 16-21.
Thus, the appellant’s application was untimely by more than 11 years. See
5 U.S.C. § 8345(i)(2).5
Although the appellant alleges on review that, following the death of her
father, she attempted to contact OPM regarding her potential entitlement to
benefits, she does not specify in what years she did so, and we find that her
general allegations of “phon[ing] the OPM and writ[ing] letters to the OPM
asking for clarification” are too vague to evince that she filed an application for
survivor benefits as a disabled dependent child survivor of her father within
30 years of his death. PFR File, Tab 5 at 9; see Davis v. Office of Personnel
Management, 918 F.2d 944, 946 (Fed. Cir. 1990) (explaining that an application
for a CSRS survivor annuity must be affirmatively filed). Moreover, these
allegations contradict her assertion that she was altogether unaware of her
potential claim to benefits until February 2017. IAF, Tab 11 at 12. Thus, the
record substantiates the administrative judge’s conclusion that the appellant failed
to timely file her application for benefits. ID at 4.
We discern no basis to waive the prescribed filing time limit.
The appellant also contends that she was unaware of her potential right to
survivor annuity benefits within the 30-year statutory timeframe, and she avers
that she acted promptly as soon as she became aware of such rights. IAF, Tab 11
at 12; PFR File, Tab 5 at 4. We construe this assertion as a request for the Board
to waive the prescribed filing time limit for equitable considerations.
5 Prior to the enactment of 5 U.S.C. § 8345(i), the Civil Service Commission, OPM’s
predecessor agency, retained records pertaining to unclaimed retirement benefits in
perpetuity, which eventually became “a large and unnecessary recordkeeping problem.”
S. Rep. No. 94-540 (1975), reprinted in 1975 U.S.C.C.A.N. 2141, 2142, 2144, 2146.
The express legislative purpose of 5 U.S.C. § 8345(i) was to eliminate this cumbersome
recordkeeping burden by enabling the Civil Service Commission to “destroy retirement
records when no claim for a benefit [had] been received within the periods specified by
law.” 1975 U.S.C.C.A.N. at 2142.5
The Board has recognized three possible bases for waiving a filing time
limit prescribed by statute or regulation: (1) the statute or regulation provides for
a waiver under specified circumstances; (2) an agency’s affirmative misconduct
precludes enforcement of the time limit under the doctrine of equitable estoppel;
and (3) an agency fails to provide a notice of rights and the applicable filing time
limit when such notice is required by statute or regulation. Perez Peraza v.
Office of Personnel Management , 114 M.S.P.R. 457, ¶ 7 (2010).
Here, neither the statute nor its implementing regulations provide any basis
for waiver of the 30-year time limit.6 5 U.S.C. § 8345(i)(2); 5 C.F.R.
§ 831.643(a). Although the appellant seemingly alleges that OPM fraudulently
concealed her mother’s 1975 application from her, such misconduct, even if
assumed true, does not give rise to equitable estoppel because the 1975
application neither indicated that the appellant was disabled nor sought disabled
dependent child survivor benefits on her behalf; thus, the application is
immaterial to the issue of timeliness. PFR File, Tab 5 at 4-9; see Perez Peraza ,
114 M.S.P.R. 457, ¶ 9 (explaining that to invoke equitable estoppel the appellant
must have reasonably and detrimentally relied on an agency misrepresentation).
Additionally, OPM had no statutory or regulatory duty to notify the appellant of
the requirement to file a claim for a survivor annuity within 30 years. See Davis,
918 F.2d at 946-47. Thus, we discern no basis to waive the 30-year filing time
limit. See Perez Peraza , 114 M.S.P.R. 457, ¶ 7.
The appellant’s contentions regarding discovery are unavailing.
Finally, the appellant makes a series of arguments on review suggesting
that OPM withheld material evidence and that the Board erroneously denied her
6 Although the appellant avers that she became permanently disabled as the result of a
work accident in 1971, she does not allege that her disabilities impacted her ability to
timely file her application with OPM. IAF, Tab 11 at 9, 12, 16. Moreover, even if the
appellant intended to levy this allegation, we discern no authority permitting either
OPM or the Board to waive the 30 -year time limit on this basis. Cf. 5 U.S.C. § 8453
(giving OPM the authority to grant a waiver of the 1-year time limit for filing a
disability retirement application on the basis of mental incompetence).6
discovery requests for this evidence. PFR File, Tab 1 at 6-8, Tab 5 at 4-9.
Although unclear, the “material evidence” to which the appellant refers seemingly
again concerns her mother’s 1975 application for death benefits.7 PFR File,
Tab 1 at 6, 8, Tab 5 at 6-9.
To the extent the appellant argues that OPM failed to provide her with
either information about her mother’s 1975 application or the application itself in
discovery, we find her contention without merit. PFR File, Tab 1 at 6, 8, Tab 5
at 6-9. Here, the record is devoid of any discovery disputes.8 Because the
appellant failed to file a motion to compel before the administrative judge, she is
precluded from raising discovery issues for the first time on review. See Szejner
v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F.
App’x 217 (Fed. Cir. 2006); 5 C.F.R. § 1201.73(c). Moreover, as stated, the 1975
application is immaterial to the issue of the appellant’s timeliness. Thus, even
assuming the administrative judge committed an adjudicatory error as related to
the 1975 application or any documents associated therewith, the appellant has
failed to show that her substantive rights were adversely affected. See Lee v.
Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 7 (2010) (explaining 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); see also Vincent v.
Federal Deposit Insurance Corporation , 41 M.S.P.R. 637, 640 (1989) (finding
unavailing the appellant’s allegations of discovery -related adjudicatory errors
7 Despite her argument in this regard, the record reflects that the appellant herself twice
submitted a copy of her mother’s 1975 application into the record; in fact, she
submitted this document along with her initial appeal form. IAF, Tab 1 at 10-11,
Tab 13 at 8-9.
8 The appellant filed her discovery requests into the record both in this proceeding and
in a separate appeal pertaining to her claim of survivor’s benefits. IAF, Tab 8; Varad v.
Office of Personnel Management , MSPB Docket No. PH-0831-18-0130-I-1, Initial
Appeal File, Tab 12. In this proceeding, the administrative judge issued a notice
explaining that, in accordance with 5 C.F.R. § 1201.71, the Board does not participate
in the discovery process until there is a failure or refusal to fully reply to a discovery
request and a motion to compel is filed. IAF, Tab 8. The appellant never filed such a
motion in either proceeding. 7
when the appellant neither clearly identified the evidence he was precluded from
obtaining nor explained how his rights were prejudiced by the alleged denial of
such evidence).
We vacate the portion of the initial decision finding that the appellant failed to
establish that she was disabled prior to the age of 18.
Neither OPM’s initial decision nor its reconsideration decision considered
whether the appellant qualified as a disabled dependent child as defined in
5 U.S.C. § 8341(a)(4)(B); rather, both decisions denied her application for
survivor annuity benefits on the basis of her untimeliness alone. IAF, Tab 1
at 6-7, Tab 11 at 7-8, 14. Because OPM never rendered an initial disability
determination, the administrative judge should not have analyzed the issue on
appeal. See Deese v. Office of Personnel Management , 116 M.S.P.R. 166, ¶ 9
(2011) (explaining that, because OPM’s reconsideration letter did not consider
whether the appellant was capable of self-support, the Board lacked jurisdiction
over the issue); see also Salarzon v. Office of Personnel Management ,
44 M.S.P.R. 588, 593 (1990) (explaining that the Board lacks jurisdiction to
decide an issue without a final decision from OPM concerning that issue), aff’d,
925 F.2d 1479 (Fed. Cir. 1991) (Table). Thus, we vacate the administrative
judge’s finding that the appellant failed to show that she qualified as a disabled
dependent child as defined in 5 U.S.C. § 8341(a)(4)(B). ID at 4.
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
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.8
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. 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.
(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 the10
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.10 The court of appeals must receive your petition for
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 of11
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. 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 | Varad_ChristinePH-0831-18-0477-I-1__Final_Order.pdf | 2024-05-08 | CHRISTINE VARAD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0831-18-0477-I-1, May 8, 2024 | PH-0831-18-0477-I-1 | NP |
1,522 | https://www.mspb.gov/decisions/nonprecedential/Terry_DeborahNY-114M-22-0041-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBORAH TERRY,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-114M-22-0041-X-1
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deborah Terry , Irvington, New Jersey, pro se.
Christina Bui , Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
In a January 20, 2023 compliance initial decision, the administrative judge
found the agency in partial noncompliance with a settlement agreement that had
been accepted into the record for enforcement by the Board in her underlying
removal appeal. Terry v. Department of Homeland Security , MSPB Docket No.
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).
NY-114M-22-0041-C-1, Compliance File (CF), Tab 7, Compliance Initial
Decision (CID); Terry v. Department of Homeland Security , MSPB Docket No.
NY-114M-22-0041-Y-1, Initial Appeal File (IAF), Tab 55, Initial Decision (ID).
Accordingly, the administrative judge granted in part the appellant’s petition for
enforcement and ordered the agency to comply with the settlement agreement.
CID at 7. For the reasons discussed below, we now find the agency in
compliance and DISMISS the appellant’s petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
During the pendency of the appellant’s removal appeal, the parties entered
into a settlement agreement providing, in relevant part, that the agency would
rescind and expunge all references to the appellant’s December 21, 2019 removal
from her official personnel file (OPF) and local personnel file and replace the
removal Standard Form 50 (SF-50) with a resignation SF-50 indicating that the
appellant resigned for personal reasons. IAF, Tab 50 at 6. The agreement further
provided that the parties agreed to keep the terms and conditions of the settlement
agreement confidential except in limited circumstances. Id. The administrative
judge accepted the settlement agreement into the record for enforcement by the
Board and dismissed the removal appeal as settled. ID at 3.
On July 30, 2022, the appellant filed a petition for enforcement with the
Board arguing that the agency had breached the settlement agreement when a
Human Resources Representative informed a potential employer that the
appellant had “resigned from the TSA because she was about to be terminated.”
CF, Tab 1.
In the January 20, 2023 compliance initial decision, the administrative
judge found that, although the Human Resources Representative stated that she
did not recall informing the appellant’s potential employer that the appellant
resigned to avoid being terminated, there was no other explanation for how the
potential employer knew the Human Resources Representative’s name and the
2
information it reported back to the appellant after its background investigation.
CID at 6. She further found that the potential employer’s screening service was
not one of the types of entities exempted from the nondisclosure provision of the
settlement and that there was no indication that the appellant consented to the
release of the information. Id. Thus, the administrative judge found that the
agency materially breached the settlement, granted the petition for enforcement,
and ordered the agency to fully comply with the terms of the settlement
agreement.2 CID at 7. She further ordered the agency to submit the name, title,
grade, and address of the agency official charged with complying with the
Board’s order “as far as any future inquiries received by the agency pertaining to
the appellant’s employment history,” and to inform such official in writing of the
potential sanction for noncompliance as set forth in 5 U.S.C. 1204(a)(2) and (e)
(2)(A). CID at 7-8.
On February 9, 2023, the agency submitted its first compliance report
notifying the Board that it was in full compliance with the settlement agreement.
Terry v. Department of Homeland Security , MSPB Docket No. NY-114M-22-
0041-X-1, Compliance Referral File (CRF), Tab 1. In relevant part, the agency
stated and cited record evidence showing that the appellant’s removal SF-50 was
cancelled, that the removal SF-50 was replaced with a resignation SF-50 noting
resignation for personal reasons, and that the appellant’s OPF did not contain any
reference to the removal. Id. at 5; CF, Tab 3 at 15-145, 150-53. The agency
counsel, who signed the compliance report and declared under penalty of perjury
that the facts stated in the pleading were true and correct, stated that she reviewed
2 The compliance initial decision informed the agency that, if it decided to take the
actions required by the decision, it must submit to the Clerk of the Board, within the
time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that
it has taken the actions identified in the compliance initial decision, along with
evidence establishing that it has taken those actions. CID at 8-9; see 5 C.F.R.
§ 1201.183(a)(6)(i). The compliance initial decision also informed the parties that they
could file a petition for review if they disagreed with the compliance initial decision.
CID at 9; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party petitioned for
review of the compliance initial decision.
3
the appellant’s entire OPF and confirmed that it did not contain a copy of the
removal SF-50. CRF, Tab 1 at 5. The agency identified two responsible agency
officials and provided copies of emails informing them, as well as the Newark
Liberty International Airport (EWR) Administrative Officer, of the potential
sanctions for noncompliance with the Board’s order regarding future inquiries
into the appellant’s employment history and that the agency should refrain from
discussing her previous removal action and resignation in lieu of removal. Id.
at 6, 8, 10, 12.
In response, the appellant argued that the agency had failed to produce
evidence reflecting that it had expunged references to her removal from the local
personnel file maintained at the local Headquarters in Union, New Jersey. CRF,
Tab 3 at 4. She stated that, with this exception, “the Agency has complied.” Id.
On April 13, 2023, the agency submitted a supplemental compliance report
containing a declaration under penalty of perjury from the EWR Administrative
Officer confirming that all documents referencing the appellant’s removal had
been removed from the local personnel files. CRF, Tab 5. The Administrative
Officer also attested that she would ensure her staff was aware and compliant
with the requirement not to reference the appellant’s removal or resignation in
lieu of removal in response to any future inquiries into the appellant’s
employment history. Id. at 5.
ANALYSIS
A settlement agreement is a contract and, as such, will be enforced in
accordance with contract law. Burke v. Department of Veterans Affairs ,
121 M.S.P.R. 299, ¶ 8 (2014). The Board will enforce a settlement agreement
that has been entered into the record in the same manner as a final Board decision
or order. Id. When the appellant alleges noncompliance with a settlement
agreement, the agency must produce relevant material evidence of its compliance
with the agreement or show that there was good cause for noncompliance. Id.
4
The ultimate burden, however, remains with the appellant to prove breach by a
preponderance of the evidence. Id.
As described above, the administrative judge found that the Human
Resources Representative’s disclosure to a potential employer that the appellant
resigned in lieu of removal established that the agency was not in compliance
with the settlement agreement, which provided the appellant a “clean record” and
precluded disclosure of the terms and conditions of the agreement with limited
exceptions. CID at 5-7. Accordingly, the administrative judge ordered the
agency to comply with the settlement agreement and to identify the responsible
agency officials and notify them of the potential sanction for noncompliance with
the Board’s order regarding future inquiries into the appellant’s employment
history. CID at 7-8. The agency’s submissions now show that it is in
compliance. In particular, as set forth above, the agency provided evidence
reflecting that references to the appellant’s removal have been removed from her
OPF and local personnel files and that the responsible agency officials have been
notified of the potential sanction for noncompliance with the Board’s order.
CRF, Tabs 1, 5; CF, Tab 3 at 15-145, 150-53. In addition, the appellant indicated
that she was satisfied with the agency’s compliance except to the extent it had
failed to demonstrate it had removed references to her removal from the local
personnel file maintained at the local Headquarters in Union, New Jersey. CRF,
Tab 3. The agency has since submitted such evidence, and the appellant did not
respond to it. CRF, Tab 5. Accordingly, we assume that she is satisfied. See
Baumgartner v. Department of Housing and Urban Development , 111 M.S.P.R.
86, ¶ 9 (2009).
In light of the foregoing, we find that the agency is now in compliance and
dismiss the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
5
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.
6
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
7
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
8
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.
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 | Terry_DeborahNY-114M-22-0041-X-1__Final_Order.pdf | 2024-05-08 | DEBORAH TERRY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-114M-22-0041-X-1, May 8, 2024 | NY-114M-22-0041-X-1 | NP |
1,523 | https://www.mspb.gov/decisions/nonprecedential/Varad_ChristinePH-0831-18-0130-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINE VARAD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0831-18-0130-I-1
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christine Varad , Scituate, Massachusetts, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her survivor annuity benefits appeal for lack of jurisdiction. 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).
On May 17, 2018, the administrative judge issued an initial decision
dismissing the appellant’s Civil Service Retirement System (CSRS) survivor
annuity benefits appeal for lack of jurisdiction. Initial Appeal File, Tab 19,
Initial Decision (ID). She notified the appellant that the initial decision would
become the Board’s final decision on June 21, 2018, unless a petition for review
was filed by that date. ID at 5.
On December 28, 2018, the appellant filed a petition for review via
facsimile. Petition for Review (PFR) File, Tab 1. In her petition for review, the
appellant avers that she is entitled to CSRS survivor benefits as a disabled adult
child based on the Federal service of her father. Id. at 5. She also requests
additional time so that she can procure and consult with legal counsel on the
matter. Id. at 3-4. Thereafter, on February 4, 2019,2 the Office of the Clerk of
the Board informed the appellant that her petition for review appeared to be
untimely filed and afforded her 15 days to file a motion, signed under penalty of
perjury, or an affidavit showing either that the petition was timely filed or that
good cause existed to waive the filing deadline. PFR File, Tab 2 at 1-2. The
appellant did not file a response.
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. 5 C.F.R. § 1201.114(e).
Here, the appellant has not alleged that she received the initial decision more than
5 days after the issuance date; therefore, her petition is untimely filed by
approximately 6 months. PFR File, Tab 1.
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. §§ 1201.113(d),
1201.114(g). The party who submits an untimely petition for review has the
burden of establishing good cause for the untimely filing by showing that she
2 The delayed response was due to the partial shutdown of the Federal Government.2
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Sanders v. Department of the Treasury , 88 M.S.P.R. 370, ¶ 5 (2001).
To determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of the party’s excuse and her showing of
due diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causal relationship to her inability to timely file her
petition. Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63 (1995),
aff’d sub nom. Moorman v. Merit Systems Protection Board , 79 F.3d 1167 (Fed.
Cir. 1996) (Table).
We find that the appellant has not demonstrated good cause for the
untimely filing of her petition for review. Her 6-month delay in filing is
significant. See, e.g., Dean v. U.S. Postal Service , 100 M.S.P.R. 556, ¶ 5 (2005)
(finding a 6-month delay not minimal); Floyd v. Office of Personnel Management ,
95 M.S.P.R. 260, ¶ 6 (2003) (finding a 1-month delay not minimal). The
appellant’s pro se status alone does not excuse her significant delay. See Dean,
100 M.S.P.R. 556, ¶ 5. Moreover, the appellant provides no explanation for her
late filing despite being given an opportunity to do so.3 PFR File, Tab 2 at 1-2.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
3 In her petition for review, the appellant states that she is disabled. PFR File, Tab 1
at 2-5. In response, the Office of the Clerk of the Board explained that, to the extent
she was alleging that her health impacted her ability to meet filing deadlines, she
needed to provide additional information. PFR File, Tab 2 at 7 n.1. The appellant did
not respond. Thus, we find that she fails to demonstrate good cause for her untimely
filing on the basis of illness or mental or physical incapacity. See Lacy v. Department
of the Navy, 78 M.S.P.R. 434, 437 (1998); see also Stribling v. Department of
Education, 107 M.S.P.R. 166, ¶ 8 (2007).3
of the appellant’s petition for review. The initial decision remains the final
decision of the Board regarding its lack of jurisdiction over this appeal.4
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
4 The appellant has initiated a separate appeal pertaining to her claim of survivor’s
benefits for which the administrative judge has issued an initial decision and the
appellant has timely filed a petition for review. Varad v. Office of Personnel
Management, MSPB Docket No. PH-0831-18-0477-I-1, Initial Appeal File, Tab 16,
Initial Decision; Petition for Review File, Tab 2 at 1. The Board will address that
matter in a separate order.
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.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.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.
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. 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 | Varad_ChristinePH-0831-18-0130-I-1__Final_Order.pdf | 2024-05-08 | CHRISTINE VARAD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0831-18-0130-I-1, May 8, 2024 | PH-0831-18-0130-I-1 | NP |
1,524 | https://www.mspb.gov/decisions/nonprecedential/McGhee_BenjaminSF-831M-20-0648-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN MCGHEE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-831M-20-0648-I-1
DATE: May 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
Benjamin McGhee , Spring Valley, California, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of the calculation of an overpayment by the Office of
Personnel Management (OPM). For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Western Regional Office for further adjudication in accordance with
this Remand Order.
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).
2
BACKGROUND
In this appeal, the appellant contended that OPM erroneously determined
he received an overpayment of Civil Service Retirement System (CSRS) benefits
caused by an error in the apportionment of his former spouse’s annuity. Initial
Appeal File (IAF), Tab 1 at 12. He stated that OPM had issued a July 20, 2020
final decision finding that he had received an overpayment, but he did not include
a copy of that decision with his appeal. Id. On January 27, 2021, OPM moved to
dismiss the appeal on the basis that it had not issued an initial or final decision on
the appellant’s claim, and the appellant had not provided one.2 IAF, Tab 8 at 4.
Because he found that OPM had not issued a final decision on the alleged
overpayment, the administrative judge dismissed the appeal for lack of
jurisdiction. IAF, Tab 9, Initial Decision at 3.
With his petition for review, the appellant provides a copy of OPM’s
July 20, 2020 final decision. Petition for Review (PFR) File, Tab 1 at 3-8. OPM
has filed a response to the appellant’s petition for review, asserting that the
petition fails to meet the criteria for Board review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The issue of Board 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. Hasanadka v. Office of Personnel Management , 116 M.S.P.R. 636,
¶ 19 (2011). The Board has jurisdiction to adjudicate an individual’s rights and
interests under the CSRS only after OPM has rendered a final or reconsideration
2 This is the appellant’s second appeal on this matter. In the first appeal, OPM
rescinded its final decision finding that the appellant had received an overpayment, and
notified the Board that it would be issuing a new final decision on the appellant’s claim.
McGhee v. Office of Personnel Management , MSPB Docket No SF-831M-20-0278-I-1,
Initial Decision (June 17, 2020). Because the Board no longer has jurisdiction over an
appeal when OPM has rescinded its final decision, the administrative judge
appropriately dismissed the appeal. Id. at 2; Frank v. Office of Personnel Management ,
113 M.S.P.R. 164, ¶ 7 (2010).
3
decision on the issue in question. 5 U.S.C. § 8347(d)(1); Newman v. Office of
Personnel Management , 93 M.S.P.R. 159, ¶ 5 (2002); 5 C.F.R. § 831.110.
We are troubled by OPM’s erroneous assertion in January 2021 that it had
not issued a final decision in the matter, IAF, Tab 8 at 4, when in fact it had.3
Because the record now shows that OPM issued a final decision in this matter and
that the appellant timely filed his appeal of that final decision, IAF, Tab 1; PFR
File, Tab 1 at 3-8, we find that the Board has jurisdiction over the appeal, and
remand the appeal to the Western Regional Office for adjudication. 5 U.S.C.
§ 8347(d)(1); Newman, 93 M.S.P.R. 159, ¶ 5; 5 C.F.R. § 831.110 .
ORDER
For the reasons discussed above, we REMAND this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3 We are further troubled by OPM’s assertion in its response to the petition for review
that the appellant’s petition fails to meet the Board’s criteria for review. PFR File, Tab
4 at 4. Instead, as noted above, the appellant’s petition for review shows that, contrary
to OPM’s assertions, OPM issued a final decision on the overpayment at issue on July
20, 2020, which clearly establishes Board jurisdiction over the appeal. PFR File, Tab 1
at 3-8; 5 U.S.C. § 8347(d)(1); Newman, 93 M.S.P.R. 159, ¶ 5; 5 C.F.R. § 831.110.
Strikingly, on review, OPM made no attempt to explain its earlier erroneous statement
regarding the issuance of its final decision. | McGhee_BenjaminSF-831M-20-0648-I-1_Remand_Order.pdf | 2024-05-08 | BENJAMIN MCGHEE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-831M-20-0648-I-1, May 8, 2024 | SF-831M-20-0648-I-1 | NP |
1,525 | https://www.mspb.gov/decisions/nonprecedential/Keating_RobertDC-0752-18-0767-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT KEATING,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-0752-18-0767-I-1
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Keating , Cary, North Carolina, pro se.
Gretchen McMullen , Esquire, Mount Rainier, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed 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
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. Except as expressly MODIFIED to
supplement the administrative judge’s mitigating factor analysis, we AFFIRM the
initial decision.
BACKGROUND
The appellant was employed as a GS-13 Investigator with the agency’s
Internal Controls Staff (ICS), Office of the Administrator, Food Safety and
Inspection Service (FSIS) in Raleigh, North Carolina. Initial Appeal File (IAF),
Tab 6 at 15. In April 2018, contractors in the Office of the Chief Information
Officer (OCIO), the agency’s information technology unit, flagged the appellant’s
computer activity for further investigation and agency management referred the
matter to ICS. IAF, Tab 6 at 83-92, Tab 7 at 4-7. In May 2018, an ICS
investigator performed a forensic analysis of the appellant’s FSIS computer,
which revealed that he had viewed, accessed, and downloaded pornographic or
sexually explicit content since April 2016, a period of 2 years. IAF, Tab 7
at 9-21.
Shortly thereafter, the agency proposed the appellant’s removal based on
the charge of misuse of Government-owned equipment, supported by three
specifications that described the stated conduct. IAF, Tab 6 at 73-79. After
considering the appellant’s oral and written responses, in which he admitted
viewing images of adult women, id. at 22-72, the agency removed the appellant
from his position, effective July 20, 2018, id. at 15-21.2
The appellant filed an appeal challenging his removal and raised a claim of
reprisal for whistleblowing disclosures. IAF, Tab 1. In the order and summary of
the parties’ telephonic prehearing conference, the administrative judge stated that
the parties stipulated to numerous facts, the appellant admitted to engaging in the
charged misconduct, he withdrew his claim of reprisal for whistleblowing, and
he did not raise any other affirmative defenses. IAF, Tab 26 at 5-8, Tab 33 at 2.
The administrative judge further stated that the scope of the appeal was limited to
nexus and the reasonableness of the penalty. IAF, Tab 33 at 2.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision sustaining the removal. IAF, Tab 37, Hearing Compact
Disc (HCD), Tab 38, Initial Decision (ID) at 1-2, 10. She found that the agency
proved the charge by preponderant evidence, that the removal was taken for such
cause as promotes the efficiency of the service, and that the penalty was within
the tolerable bounds of reasonableness. ID at 2-10.
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
On review, the appellant does not challenge the administrative judge’s
finding that the agency proved the charged misconduct, ID at 3, and we affirm her
finding herein. Instead, the appellant argues that the agency did not prove nexus
or the reasonableness of the penalty. PFR File, Tab 1 at 4-5, 8-22. He also
argues that the administrative judge abused her discretion when she denied his
motion to compel, excluded the testimony of a witness to refute the deciding
official’s credibility, and disallowed the admission of additional evidence relating
to the deciding official’s assessment of the penalty. Id. at 4-8. For the reasons
set forth below, we find that the appellant’s arguments on review do not warrant a
different outcome.3
We affirm the administrative judge’s finding that the removal was taken for such
cause as promotes the efficiency of the service.
The appellant challenges the administrative judge’s nexus determination
because there was no “evidence of damage to any equipment, or malfeasance or
intent to do harm.” PFR File, Tab 1 at 10; ID at 3-4. The appellant misstates the
nexus requirement. The nexus requirement, for purposes of whether an agency
has shown that its action promotes the efficiency of the service, means there must
be a clear and direct relationship between the articulated grounds for an adverse
action and either the employee’s ability to accomplish his or her duties
satisfactorily or some other legitimate government interest. Scheffler v.
Department of Army , 117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed.
Cir. 2013).
Here, the appellant’s misconduct occurred at work while he was on duty
and involved misuse of Government equipment. There is sufficient nexus
between an employee’s conduct and the efficiency of the service when the
conduct occurs at work. Parker v. U.S. Postal Service , 819 F.2d 1113, 1116 (Fed.
Cir. 1987); Miles v. Department of the Navy , 102 M.S.P.R. 316, ¶ 11 (2006).
Moreover, the Board has held that a nexus between the efficiency of the service
and the charge of misuse of Government equipment exists. Els v. Department of
the Army, 82 M.S.P.R. 27, ¶ 11 (1999); Sternberg v. Department of Defense ,
52 M.S.P.R. 547, 559 (1992). Given the sustained misconduct, we agree with the
administrative judge that the agency proved nexus in this case. ID at 3-4.
We supplement the administrative judge’s penalty analysis, still finding that the
penalty of removal was within the tolerable bounds of reasonableness.
When, as here, the Board sustains an agency’s charge, 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)4
(quoting Parker, 819 F.2d at 1116). 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 she considered all the mitigating factors, and
the Board will independently weigh the relevant factors only if the deciding
official failed to demonstrate that she considered any specific, relevant mitigating
factors before deciding on a penalty. Id. For the reasons set forth below, we find
that the appellant’s arguments on review do not provide a basis for disturbing the
agency’s penalty determination.
The appellant challenges the administrative judge’s analysis of nearly all
the penalty factors and requests that the penalty of removal be mitigated to a
suspension. PFR File, Tab 1; 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). Among the relevant Douglas factors are: (1) the
nature and seriousness of the offense; (2) the employee’s job level and type of
employment; (3) the employee’s past disciplinary record; (4) the employee’s past
work record; (5) the effect of the offense upon the employee’s ability to perform
at a satisfactory level and its effect upon his supervisors’ confidence in the
employee’s ability to perform assigned duties; (6) the consistency of the penalty
imposed with those imposed upon other employees for the same or similar
misconduct; (7) the consistency of the penalty with any applicable agency table of
penalties; (8) the notoriety of the offense or its impact on the agency’s reputation;
(9) the clarity with which the employee was on notice of any rules that were
violated in committing the offense;2 (10) the potential for the employee’s
2 The deciding official noted in the notice of removal that there was no notoriety
surrounding the offense and the appellant had notice of agency policies concerning
appropriate conduct. IAF, Tab 6 at 18. The appellant on review appears to challenge
the deciding official’s extraneous statements regarding her consideration of the
notoriety of the offense. PFR File, Tab 1 at 15. However, because the deciding official
properly acknowledged that there was no notoriety and the appellant does not challenge5
rehabilitation; (11) mitigating circumstances surrounding the offense; and
(12) the adequacy and effectiveness of alternative sanctions to deter such conduct
in the future by the appellant and others. Douglas, 5 M.S.P.R. at 305-06. The
record reflects that the deciding official considered these factors in making her
decision to remove the appellant from his position. HCD (testimony of the
deciding official); IAF, Tab 6 at 16-19.
The appellant asserts that the deciding official attributed adverse weight to
his admission in her consideration of the first Douglas factor. PFR File, Tab 1
at 10. Regarding the second and fifth Douglas factors, he disagrees with the
deciding official’s statements that he investigated the specific conduct with which
he was charged as he was never assigned any pornography cases, and that his
supervisors lost confidence in his ability to perform his duties. Id. at 11-13.
In assessing the appropriateness of the agency’s penalty selection, the most
important factor is the first factor, the nature and seriousness of the offense and
its relation to the employee’s duties, position, and responsibilities, including
whether the offense was intentional or was frequently repeated. Batara,
123 M.S.P.R. 278, ¶ 8; Davis v. U.S. Postal Service , 120 M.S.P.R. 457, ¶ 7
(2013). Here, the deciding official observed that the appellant engaged in
“willful” and “egregious” misconduct that caused the agency to lose trust in his
ability to effectively perform the duties of his position, especially considering the
length of time over which it repeatedly occurred and the fact that his offense was
antithetical to the purpose of his position, which involved investigating
allegations of employee misconduct. ID at 5-6; IAF, Tab 6 at 16-18. We agree
with the administrative judge that the deciding official properly accorded
substantial weight to the first, second, and fifth Douglas factors. IAF, Tab 6
at 16-18; HCD (testimony of the deciding official); see Edwards v. Department of
the Army, 87 M.S.P.R. 27, 30, ¶ 9 (2000) (stating that a supervisor’s opinions are
the deciding official’s determination that he was on notice of any rules that were
violated in committing the offense, we need not analyze the eighth and ninth factors
further.6
insufficient to overcome the agency’s judgment concerning the seriousness of the
misconduct and the appropriateness of the agency-imposed penalty), aff’d sub
nom. Rodriquez v. Department of the Army , 25 Fed. Appx. 848 (Fed. Cir. 2001).
Regarding the sixth and seventh Douglas factors, the appellant asserts that
the penalty was neither consistent with those imposed upon other employees for
the same or similar misconduct, nor consistent with the agency’s table of
penalties. PFR File, Tab 1 at 7-9, 13-15. In particular, he claims that the
deciding official relied on “false and misleading information” in the notice of
proposed removal because she did not consider the broad range of penalties for a
first offense of misuse of Government equipment in the agency’s table of
penalties or a broad range of comparators throughout the agency (USDA), not just
the largest sub-agency (FSIS). Id. at 8-9.
The record reflects that the deciding official considered the sixth and
seventh Douglas factors. IAF, Tab 6 at 18. Removal was within the range of
penalties for a first offense of misuse of Government equipment. IAF, Tab 10
at 26; see Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 18 (finding that an
agency’s decision to impose a penalty at the more lenient end of a range of
penalties should not mean that it cannot impose a penalty at the more severe end
of that range in another case).
Regarding the appellant’s claim that the agency treated him more harshly
than other similarly-situated employees, the Board has recently clarified that the
relevant inquiry is whether the agency knowingly and unjustifiably treated
employees differently.3 Singh, 2022 MSPB 15, ¶ 14. The fact that two
3 The appellant asserts that the administrative judge improperly denied his motion to
compel discovery of comparator evidence. PFR File, Tab 1 at 5, 7-8. He clarifies that
he sought discovery regarding potential comparator employees throughout the agency
(USDA), not just the largest subagency (FSIS). Id. at 7-8. The agency noted that it had
already provided the three comparator cases that the deciding official had considered in
making her decision, and that the appellant had misused his position as an Investigator
to obtain three different comparator cases upon which the deciding official did not rely.
Id. at 5-7 (citing IAF, Tab 10 at 27). The administrative judge denied the appellant’s
motion to compel for the reasons provided by the agency. IAF, Tab 19. An7
employees come from different work units and/or supervisory chains remains an
important factor in determining whether it is appropriate to compare the penalties
they are given. Id., ¶ 13. In most cases, employees from another work unit or
supervisory chain will not be proper comparators. Id. The universe of potential
comparators will vary from case to case, but it should be limited to those
employees whose misconduct and/or other circumstances closely resemble those
of the appellant. Id.
We find that the appellant has failed to establish that the agency knowingly
and unjustifiably treated any employees differently, as required under Singh.
The standard set forth in Douglas calls for comparison with penalties “imposed
upon other employees for the same or similar offenses.” Id., ¶ 17 (citing
Douglas, 5 M.S.P.R. at 305). The administrative judge noted that the deciding
official considered three comparator cases, and she determined that the deciding
official credibly testified that the facts and circumstances surrounding the three
comparator employees was dissimilar enough to justify treating the appellant
differently. ID at 6-9. The Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing, and may overturn
such determinations only when it has “sufficiently sound” reasons for doing so.
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find
that the appellant has not presented sufficiently sound reasons for overturning the
administrative judge’s well-reasoned credibility determinations.
Although the appellant maintains that he is not raising K.B. as a potential
comparator employee, he indicates that K.B. was an “identically situated”
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. Kingsley v.
U.S. Postal Service , 123 M.S.P.R. 365, ¶ 16 (2016 ). We find that the appellant has not
established that the administrative judge abused her discretion when she denied the
appellant’s motion to compel.8
coworker who received lesser discipline.4 PFR File, Tab 1 at 6. The record
reflects that K.B. held the same job title and was in the same work unit as the
appellant; however, by the appellant’s own admission, she did not commit the
same or similar offense. PFR File, Tab 1 at 13-14. Rather, she was suspended
for 14 days for failure to follow instructions and time and attendance related
offenses. Id. Given the circumstances, K.B. was not a similarly situated
employee.
The appellant asserts that the third, fourth, and tenth Douglas factors weigh
in his favor. He points to his expression of remorse, length of service (3 years
civilian and 34 years military), lack of prior discipline, positive performance
appraisals, letters of support from colleagues, and his participation in a
rehabilitative program. PFR File, Tab 1 at 8, 10 -12, 15-16. Regarding the
eleventh Douglas factor, the mitigating circumstances surrounding the offense,
the appellant argues that the deciding official did not fully consider his evidence
as to his mental impairments and its effects on his actions. Id. at 16-17.
The appellant’s disagreement with the weight given to those factors does
not provide a basis to change the outcome. See Kirkland v. Department of
Homeland Security , 119 M.S.P.R. 74, ¶ 25 (2013). As the administrative judge
stated, the deciding official considered the third and fourth Douglas factors, his
4 The appellant asserts that the administrative judge improperly denied his request to
call K.B. as a witness “to refute the credibility of the deciding official[].” PFR File,
Tab 1 at 4, 6. He notes that he sought the inclusion of the testimony of K.B., not as a
potential comparator employee, but as a challenge to the testimony of the deciding
official that “whenever a misconduct investigator engaged in serious misconduct, the
only option for the [a]gency was removal and the employee had no prospect for
rehabilitation.” Id. at 6. An administrative judge has wide discretion to control the
proceedings, including the authority to exclude evidence she believes would be
irrelevant, immaterial, or unduly repetitious. Sanders v. Social Security Administration ,
114 M.S.P.R. 487, ¶ 10 (2010 ). The Board has held that, 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. Id. Here, the appellant has neither shown
that the testimony of K.B. could have affected the outcome of his appeal nor provided
sufficiently sound reasons to overturn the administrative judge’s determination that the
deciding official’s testimony was credible. See Haebe, 288 F.3d at 1301.9
past disciplinary and work record, as mitigating factors but concluded that they
were not significant enough to outweigh the nature and seriousness of the
sustained misconduct. ID at 6, 9 -10; IAF, Tab 6 at 17-19; HCD (testimony of the
deciding official). The administrative judge observed that the appellant appeared
sincerely remorseful for his conduct and that he provided medical evidence that
he suffered from depression, but noted that the deciding official did not grant this
evidence much weight because it did not excuse his misconduct. ID at 6, 9.
Because neither the administrative judge nor the deciding official fully addressed
the appellant’s claim of mental impairments as a mitigating factor, we modify the
initial decision to supplement the administrative judge’s analysis.
The record reflects that the appellant began counseling through the
Employee Assistance Program (EAP) shortly after he learned that the agency
would propose his removal. IAF, Tab 3 at 180. He continued counseling with a
psychiatrist who diagnosed him with Adjustment Disorder with Mixed Emotional
Features; Major Depression; Complicated Grief Disorder, and Mixed Personality
Disorder; with Self Destructive Tendencies with Obsessive Compulsive and
Addictive Behavior. Id. at 186. The appellant asserted that he submitted this
evidence to the deciding official, but she did not consider it as a mitigating factor,
seek additional information, refute his medical evidence, or order him to take a
fitness for duty exam.5 PFR File, Tab 1 at 16-17.
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); Bowman v. Small Business Administration , 122 M.S.P.R. 217,
¶ 13 (2015); Roseman v. Department of the Treasury , 76 M.S.P.R. 334, 345
(1997). In circumstances where a medical condition or mental impairment is
reasonably substantiated and shown to be related to the grounds for removal,
5 Under these circumstances, the agency is not required to refute his medical evidence
or order him to take a fitness for duty exam. 10
it must be considered in the penalty analysis. Malloy, 578 F.3d at 1356. The
Board will not consider a medical or mental impairment to be a significant
mitigating factor in the absence of evidence that the impairment can be
remedied or controlled, i.e., when the potential for rehabilitation is poor.
Mingledough v. Department of Veterans Affairs , 88 M.S.P.R. 452, ¶ 12 (2001),
review dismissed , 35 F. App’x 873 (Fed. Cir. 2002).
In his response to the proposed removal, the appellant submitted a
June 5, 2018 report from his EAP counselor and a June 14, 2018 report from his
psychiatrist suggesting that he suffered from depression, among other conditions,
during the period of the misconduct.6 IAF, Tab 3 at 180-87. The June 5, 2018
report shows that the appellant sought counseling through EAP in order to
address and/or treat his depression following the proposed removal; however, it
was short-term and does not provide much in the way of significant analysis.
Id. at 180. In contrast, the June 14, 2018 report provides a substantive discussion
of the appellant’s mental impairment, and thus, it is the main subject of our
review. Id. at 181-87.
The psychiatrist stated that he conducted a clinical and diagnostic
evaluation of the appellant. Id. at 182. He concluded that the appellant “was
suffering from mental health issues when [the misconduct] occurred that were
somewhat known, but only partially and ineffectively treated.” Id. at 181.
He explained that the appellant’s depression “manifested . . . in aberrant behavior
that involved using pornography to ‘act out’ guilt and shame associated with a
rigid religious view,” and it was exacerbated by recurrent deployments in his
military career, a chaotic and isolated childhood, and a marriage that lacked
physical and emotional intimacy. Id. at 182. The psychiatrist indicated that the
appellant’s “own morality led him to reject acting out in the marriage or viewing
6 The appellant also provided documentation showing that, in December 2014, the
Veterans Benefit Administration determined that he had a service-connected disability,
50% of which was attributed to “generalized anxiety disorder, with major depressive
disorder.” IAF, Tab 3 at 188 -95. 11
[pornography] on his home or private computer” and that viewing pornography on
his office computer allowed him to “remain committed to his marriage and home,
while seeking the sort of punishment for his conduct which would be exposed.”
Id. at 184. He described the appellant’s behavior as akin to that of an addict and
suggested that the appellant was caught in a “shame cycle” and that he did not
have the ability to “self-regulate” his behavior. Id. at 185. He expressed a
concern that the agency “appeared to have been aware of the misconduct for some
time[] but took no action” and, in doing so, entrapped the appellant. Id. He
opined that the appellant is a “prime candidate for retention and rehabilitation”
and that “[g]iven adequate medical treatment, use of support groups, and
employee assistance, [he] is not likely to reengage in the destructive behavior.”
Id. at 186.
We have thoroughly reviewed the psychiatrist’s report and we are not
persuaded that his conclusions in the report warrant a different outcome. We note
that the treating psychiatrist appeared to place the lion’s share of the
responsibility for the appellant’s actions on the employer, both in terms of
deterrence and rehabilitation. He indicated that the appellant has the potential for
rehabilitation, but his description of the appellant as an individual whose
addiction was quite severe in nature suggests that the appellant may relapse and
repeat such behavior when he needs an outlet for his suppressed emotions. In
fact, although the appellant denied that he had an addiction, he also indicated that
he had difficulty curing his compulsion to view pornography and sexually explicit
material. HCD (testimony of the appellant). That the appellant was depressed as
a result of a number of personal stressors and engaged in “self -destructive”
behavior arising from his feelings of guilt and shame does not adequately connect
his mental impairments to his misconduct such that his impairments are entitled
to considerable weight as a mitigating factor.
We have considered the appellant’s assertion that the psychiatrist’s report
shows that his misconduct was due to “a loss of behavioral self-control caused by12
inadequate medication to treat [his] medical disability.” PFR File, Tab 1 at 9;
HCD (testimony of the appellant). According to the psychiatrist, the appellant
recognized that his behavior was inappropriate, and he made an apparently
deliberate decision to view pornographic and sexually explicit content on his
Government computer but not his personal computer. The fact that he could
control this impulse at home but not at the workplace suggests that he had some
self-control. The psychiatrist questioned the efficacy of the appellant’s
medication regimen, particularly given side effects impacting libido and
impulsivity, but he did not clearly explain the impact of these medications on the
appellant as it relates to his apparent pornography addiction. IAF, Tab 3 at 182.
The administrative judge noted in the initial decision that the appellant
provided evidence demonstrating that he was taking medications and that he
sought behavioral health counseling. ID at 7; IAF, Tab 36 at 1-7. The
administrative judge further noted that she empathized with the appellant’s
medical conditions and efforts to seek treatment, but she held that the agency
properly considered the relevant Douglas factors. ID at 9-10. Based on our
review of the record, we find that the appellant’s conditions existed at the time of
the misconduct and are entitled to some weight as a mitigating factor. However,
the appellant has offered no persuasive evidence that his conditions have been
remedied or controlled, i.e., that his potential for rehabilitation is strong.
On review, the appellant argues that the deciding official misunderstood
and misapplied the tenth Douglas factor, the potential for rehabilitation. PFR
File, Tab 1 at 15-16. The record reflects that the deciding official considered but
did not accord much weight to this factor. IAF, Tab 6 at 18; HCD (testimony of
the deciding official). As the administrative judge stated, the appellant’s “mere
participation in a rehabilitative program cannot preclude an agency from
instituting disciplinary action in every case in which an employee has sought and
received assistance” because it would impermissibly undermine “the agency’s
primary discretion in exercising its managerial obligation to maintain employee13
discipline and efficiency.” ID at 9. Even a good prognosis or a favorable
“forward-looking analysis” for an appellant’s future behavior, as stated in the
psychiatrist’s report, does not outweigh the agency’s legitimate apprehension as
to his ability to perform his duties, and the effect of his proven misconduct on the
efficiency of the service.7 Quander v. Department of Justice , 22 M.S.P.R. 419,
422 (1984), aff’d, 770 F.2d 180 (Fed. Cir. 1985) (Table).
Regarding the twelfth Douglas factor, the adequacy and effectiveness of
alternative sanctions, the appellant argues that the deciding official did not
consider this factor. PFR File, Tab 1 at 4-5, 17-18. He asserts that his case is
analogous to Toth v. U.S. Postal Service , 76 M.S.P.R. 36 (1997), in which the
Board held that the agency’s failure to consider a lesser penalty and other
relevant Douglas factors supported mitigation of the removal to a 30-day
suspension. Id. at 17. The record reflects that the deciding official considered
the twelfth Douglas factor in making her decision. IAF, Tab 6 at 19; HCD
(testimony of the deciding official). She testified that no penalty other than
removal would have been appropriate because the appellant was expected to have
a reputation of integrity and she did not trust the appellant to satisfactorily
perform his duty of independently investigating allegations of employee
misconduct after he committed the offense at issue. HCD (testimony of the
deciding official). She later clarified that imposing an alternate sanction such as
a suspension would not have been effective, and she believed that the
appellant’s removal was in the best interest of the agency. Id. In contrast to
7 The appellant also argues that the agency’s purported awareness of his misconduct for
more than 1 year undermines the deciding official’s testimony that his misconduct was
“egregious.” PFR File, Tab 1 at 7, 18. In making such an assertion, the appellant
appears to be avoiding responsibility for his actions. We find that the appellant’s
attempt to minimize his own misconduct weighs against a finding of rehabilitative
potential. Even assuming his assertion regarding the agency’s purported awareness of
his misconduct is true, it defies credulity that any employee would think it appropriate
to view pornographic or sexually explicit materials on work equipment and on work
time. Chavez v. Small Business Administration , 121 M.S.P.R. 168, ¶ 16 n.5 (2014 ).
Thus, the appellant’s arguments do not change our analysis of the factors relating to the
nature and seriousness of the offense or his potential for rehabilitation.14
Toth, 76 M.S.P.R. at 39, in which the agency did not show that it substantively
considered a lesser penalty, the deciding official testified unequivocally that she
considered all Douglas factors, and she concluded that no alternative sanction
was appropriate. HCD (testimony of the deciding official).
Based on the record evidence, we conclude that a different outcome is not
warranted. We supplement the initial decision to find that the nature, seriousness,
extended duration, and repeated occurrence of the offense, particularly given the
appellant’s position and job duties, outweigh the mitigating factors, including, but
not limited to, his mental impairments, length of Federal and military service, and
lack of prior discipline. Accordingly, we affirm the removal penalty for the
sustained misconduct. See Baldwin v. Department of Veterans Affairs ,
109 M.S.P.R. 392, ¶ 14 (2008) (noting that the Board has held that the penalty of
removal was reasonable for misuse of government equipment arising from an
appellant’s personal use of a government computer, particularly when he used the
computer to view material of a sexually explicit nature).
The appellant’s remaining claims provide no basis to disturb the initial decision.
The appellant asserts that the administrative judge improperly disallowed
the admission of additional evidence relating to the deciding official’s penalty
determination. PFR File, Tab 1 at 4, 6-7. The evidence that the appellant
identifies as erroneously excluded is the OCIO policy, which states that
individuals who violate the office’s restrictions on computer use are banned from
telework. Id. at 6-7. He interprets this policy as supportive of his position that
removal is not mandatory for individuals who view restricted websites on
Government computers. Id. at 7. The appellant has not shown that the inclusion
of the OCIO policy into the record would have led the administrative judge to
reach a different conclusion regarding the reasonableness of the penalty. Thus,
the appellant has not established that the administrative judge abused her
discretion when she disallowed the admission of this additional evidence. See
Sanders, 114 M.S.P.R. 487, ¶ 10. 15
Finally, we have considered the appellant’s assertions that the deciding
official improperly sent a proxy when he presented his oral response to the
proposed removal, she did not seek any additional review of the evidence that she
was provided by the proposing official, and she did not consult with any other
person in making her decision. PFR File, Tab 1 at 18-19. The appellant does not
state that the deciding official was required to attend the oral response in person
or to seek assistance from other individuals. Moreover, there is no indication in
the record that the deciding official failed to consider any relevant evidence in
determining that removal was a reasonable penalty. HCD (testimony of the
deciding official). Thus, these arguments are not persuasive.
Accordingly, we affirm the agency’s removal action.
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.
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. 16
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 you17
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: 18
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.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).
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. 19
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.20 | Keating_RobertDC-0752-18-0767-I-1__Final_Order.pdf | 2024-05-08 | ROBERT KEATING v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-18-0767-I-1, May 8, 2024 | DC-0752-18-0767-I-1 | NP |
1,526 | https://www.mspb.gov/decisions/nonprecedential/Duffner_CherylDC-3443-19-0520-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHERYL DUFFNER,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-3443-19-0520-I-1
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cheryl Duffner , Woodstock, Maryland, pro se.
Kristin Murrock , Suitland, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her reduction in pay appeal for lack of jurisdiction without a hearing.
On petition for review, the appellant argues that she made a nonfrivolous
allegation that the agency reduced her basic pay, argues that this matter should be
appealable to the Board, and asserts that she could claim whistleblower
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).
protections.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).
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
2 Because the appellant’s loss of supervisory performance pay under the Commerce
Alternative Personnel System is not directly appealable to the Board, if the appellant
wishes to claim whistleblower reprisal, she may file a complaint with the Office of
Special Counsel under the provisions of 5 U.S.C. § 1214 and 5 C.F.R. part 1800.
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
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. 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.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. 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 | Duffner_CherylDC-3443-19-0520-I-1__Final_Order.pdf | 2024-05-08 | CHERYL DUFFNER v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-3443-19-0520-I-1, May 8, 2024 | DC-3443-19-0520-I-1 | NP |
1,527 | https://www.mspb.gov/decisions/nonprecedential/Lee_Roberta_A_DE-0752-18-0161-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERTA A LEE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-18-0161-I-1
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Janice L. Jackson , Leavenworth, Kansas, for the appellant.
Eric L. Carter , Esquire, Fort Riley, Kansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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
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. Except as expressly MODIFIED to
address one of the appellant’s due process arguments, we AFFIRM the initial
decision.
Below, the appellant raised several due process arguments, one of which
the administrative judge did not specifically address, i.e., that the agency violated
her due process rights by considering certain adverse penalty factors without
affording her prior notice and an opportunity to respond. Initial Appeal File
(IAF), Tab 39 at 26-27; see Ward v. U.S. Postal Service , 634 F.3d 1274, 1280
(Fed. Cir. 2011). The appellant renews this argument on petition for review.
Petition for Review File, Tab 1 at 12-13.
We have considered the appellant’s argument, but we find that it is not
supported by the record. The deciding official testified that he considered emails
“stretching from January all the way to December [2017],” as reflecting the
appellant’s insubordination. Hearing Transcript, Vol. 1 at 138 (testimony of the
deciding official). Although he testified the emails dated back to January 2017,
he appears to be referencing emails beginning in June 2017. IAF, Tab 10
at 83-103. These emails were discussed in the proposed removal under the charge
of conduct unbecoming a Federal employee, including an August 2017 email in
which the appellant’s supervisor outlined her expectations as to the appellant’s
future behavior. Id. at 64-66, 95-96. In responding to the proposed removal, the
appellant addressed these emails and their contents. Id. at 53-56. Thus, the
information was contained in the proposal notice, and the appellant had an2
opportunity to respond. We therefore find no evidence that the deciding official
considered any information concerning the penalty other than the information
specifically identified in the notice of proposed removal. We therefore find no
due process violation in this regard.
NOTICE OF APPEAL RIGHTS2
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.
(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 | Lee_Roberta_A_DE-0752-18-0161-I-1__Final_Order.pdf | 2024-05-08 | ROBERTA A LEE v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-18-0161-I-1, May 8, 2024 | DE-0752-18-0161-I-1 | NP |
1,528 | https://www.mspb.gov/decisions/nonprecedential/Doe_Pilley_DC-0752-18-0381-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PILLEY DOE,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-18-0381-I-1
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pilley Doe , Cheverly, Maryland, pro se.
Nekeisha Campbell , Esquire, and Susan M. Andorfer , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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 for: (1) failure to maintain
the professional licensure required to perform the duties of her position; and
(2) violation of agency nursing practice standards. Initial Appeal File (IAF),
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).
Tab 1 at 7-17, 128-47, Tab 6 at 12-13, 15-23, 39-49. On petition for review, the
appellant concedes that the agency proved both charges, but contends that her
removal was an excessive penalty. Petition for Review (PFR) File, Tabs 7, 10.
To this end, she avers the following: (1) the agency deciding official failed to
independently analyze all of the Douglas factors and the administrative judge
erroneously deferred to her penalty determination; (2) the agency failed to follow
its own penalty guidelines; (3) the agency violated her due process rights by
failing to timely provide her with information related to a similarly situated
employee; and (4) the agency discriminated against her on the basis of her race by
treating this similarly situated employee more favorably. PFR File, Tabs 7, 10.
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 clarify the analysis
applicable to the appellant’s claim of disparate penalties, we AFFIRM the initial
decision.
When the agency’s charges are sustained, the Board will review an
agency-imposed penalty only to determine if the agency considered all of the
relevant factors and exercised discretion within tolerable limits of reasonableness.
Stuhlmacher v. U.S. Postal Service , 89 M.S.P.R. 272, ¶ 20 (2001). Here, we find2
unsubstantiated the appellant’s assertion that the deciding official failed to
independently analyze the relevant Douglas factors. PFR File, Tab 7 at 10; see
Kramer v. Veterans Administration , 23 M.S.P.R. 271, 274 (1984) (finding that
mere conclusory allegations of factual error are not sufficient to trigger a
complete review of the record), aff’d, 776 F.2d 1061 (Fed. Cir. 1985) (Table).
We further find that the administrative judge applied the proper legal standard
and reasonably concluded that the agency’s selected penalty of removal was not
unwarranted under the circumstances and was within the tolerable bounds of
reasonableness. IAF, Tab 19, Initial Decision (ID) at 11-12, 14; see Stuhlmacher ,
89 M.S.P.R. 272, ¶ 20.
The appellant also argues that the agency violated its own “Table of
Offenses and Penalties.” PFR File, Tab 7 at 11, 21, 27, 30, 34. To support this
contention, the appellant provides, for the first time, a document that she alleges
is a copy of the agency’s table of offenses and penalties. Id. at 43-53.2 However,
she presents no evidence or argument to suggest that this document was
unavailable prior to close of the record. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d).3
Last, we decline to consider the appellant’s due process and race
discrimination claims because she has not shown that these claims are based on
new and material evidence that previously was unavailable to her despite due
2 In its response, the agency avers that the subject document is not an accurate copy of
its table of penalties. PFR File, Tab 9 at 5 n.1. The document, which contains several
references to 43 C.F.R. part 20, seemingly summarizes internal policies of the
Department of the Interior; thus, the document is immaterial to this case. PFR File,
Tab 7 at 43-53.
3 The appellant also provides, for the first time, handwritten notes purportedly taken by
an employee relations specialist, a written reprimand issued to another nurse, a
document purporting to constitute internal agency policy, and an email referencing the
same. PFR File, Tab 7 at 39-41, 56-57, 59 -61. Again, the appellant has not shown
these additional documents were unavailable prior to the close of the record. See
Avansino, 3 M.S.P.R. at 214; 5 C.F.R. § 1201.115(d).3
diligence.4 See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980) (finding that the Board generally will not consider an argument raised for
the first time on review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence); 5 C.F.R.
§ 1201.24(b) (requiring an appellant to show good cause for raising claims or
defenses for the first time after the conference defining the issues in the case).
However, because the consistency of the appellant’s penalty with those imposed
upon other employees is one of the Douglas factors to be considered in
determining the reasonableness of an agency-imposed penalty, we will treat the
appellant’s allegations in this regard as claims that her penalty was
disproportionately harsh as compared to a similarly situated employee. See
Vargas v. U.S. Postal Service , 83 M.S.P.R. 695, ¶ 9 (1999) (explaining that an
appellant’s allegation that the agency treated her more harshly than another
employee, without a claim of prohibited discrimination, is an allegation of
disparate penalties to be proven by the appellant and considered by the Board in
determining the reasonableness of the penalty, but it is not an affirmative
defense); see also Jordan v. Office of Personnel Management , 108 M.S.P.R. 119,
¶ 19 (2008) (explaining that the Board construes pro se pleadings liberally).
After the initial decision in this case, the Board overruled some of its
recent precedent governing the analysis of disparate penalties claims. In Singh v.
U.S. Postal Service , 2022 MSPB 15, ¶¶ 9, 11-12, the Board held that it should not
weigh the relative seriousness of various offenses to determine if the agency
treated employees who committed different acts of misconduct differently; rather,
the universe of potential comparators should be limited to those employees whose
misconduct and/or other circumstances closely resemble those of the appellant.
4 To the extent the appellant alleges on review that the agency failed to provide her with
comparator information in discovery, PFR File, Tab 10 at 10-11, we find that she did
not raise this issue before the administrative judge; accordingly, she is precluded from
raising this issue for the first time on review. See Szejner v. Office of Personnel
Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir. 2006);
see also 5 C.F.R. § 1201.73(c).4
Id., ¶¶ 13, 17 (overruling Portner v. Department of Justice , 119 M.S.P.R. 365
(2013), and Boucher v. U.S. Postal Service , 118 M.S.P.R. 640 (2012)).
Here, we discern no basis to disrupt the administrative judge’s finding that
the agency weighed all relevant factors and reasonably concluded that removal
was appropriate under the circumstances. ID at 14; see Stuhlmacher , 89 M.S.P.R.
272, ¶ 20. To this end, we find that the appellant failed to identify a valid
comparator because, as noted by the administrative judge, the other agency nurse
began the license renewal process before her license expired and did not engage
in any patient care or sign any records during her 1-day lapse in licensure. ID
at 14; 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
disparately). The appellant, by contrast, both had patient contact and signed
patient forms as a registered nurse during her 6-month lapse in licensure. IAF,
Tab 1 at 64-76, Tab 7 at 30-42. Therefore, we find that the appellant was not
similarly situated to this individual for purposes of the penalty analysis.
Accordingly, we affirm the agency’s removal action.
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
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
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. The6
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
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
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.9 | Doe_Pilley_DC-0752-18-0381-I-1__Final_Order.pdf | 2024-05-08 | PILLEY DOE v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0752-18-0381-I-1, May 8, 2024 | DC-0752-18-0381-I-1 | NP |
1,529 | https://www.mspb.gov/decisions/nonprecedential/Carrillo_Antonio_O_SF-0752-19-0456-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTONIO O. CARRILLO,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-19-0456-I-1
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Antonio O. Carrillo , Chula Vista, California, pro se.
Allan Robert Thorson , Esquire, Chula Vista, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of an agency action removing him for violating a last -chance
settlement agreement for lack of jurisdiction. On petition for review, the
appellant argues that he did not breach the last-chance settlement agreement
because his conduct did not result in his arrest. Generally, we grant petitions
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).
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 | Carrillo_Antonio_O_SF-0752-19-0456-I-1__Final_Order.pdf | 2024-05-08 | ANTONIO O. CARRILLO v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-19-0456-I-1, May 8, 2024 | SF-0752-19-0456-I-1 | NP |
1,530 | https://www.mspb.gov/decisions/nonprecedential/Cayanan_Ramon_SF-0353-16-0599-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAMON CAYANAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0353-16-0599-I-3
DATE: May 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Guillermo Mojarro , Corpus Christi, Texas, for the appellant.
Daren K. Draves , Esquire, San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his restoration 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
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 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.
We AFFIRM the initial decision except as expressly MODIFIED to apply the
Board’s recent decisions to the appellant’s claims that he was denied restoration
and that the denial was the result of illegal discrimination and retaliation, and to
find that the agency did not deny arbitrarily and capriciously deny the appellant’s
restoration request on August 10, 2016.
BACKGROUND
The agency employed the appellant in its Santa Ana District as a
Sales/Services Distribution Associate at the La Puente Post Office in La Puente,
California. Cayanan v. U.S. Postal Service , MSPB Docket No. SF-0353-16-0599-
I-1, Initial Appeal File (IAF), Tab 6 at 124; Cayanan v. U.S. Postal Service ,
MSPB Docket No. SF -0353-16-0599-I-3, Appeal File (I-3 AF), Tab 29 at 17. On
April 23, 2015, the appellant sustained a workplace injury while lifting heavy
parcels and went off work. IAF, Tab 1 at 9. He filed a traumatic injury claim
with the Office of Workers’ Compensation Programs (OWCP), which accepted
his claim for cervical sprain/strain and muscle spasm on the left side of his neck.
IAF, Tab1 at 9-11, Tab 6 at 98. In June 2015, the appellant submitted a Duty
Status Report, OWCP Form CA-17, completed by his treating physician,
reflecting that he could return to work with restrictions. IAF, Tab 6 at 123. On
June 23, 2015, the agency offered him a modified duty assignment, which he
accepted. Id. at 122. Two days later, however, he provided another Duty Status
Report completed by his physician reflecting that he was temporarily totally2
disabled (TTD). Id. at 121. From June 25, 2015, through June 29, 2016, the
appellant periodically provided documentation completed by his physician
reflecting that he remained in TTD status due to his traumatic injury. Id. at 102,
104, 108-10, 115-21.
Meanwhile, in August 2015, the appellant filed an occupational illness
claim with OWCP based on carpal tunnel with a date of injury of July 23, 2015.
I-3 AF, Tab 13 at 161-63. OWCP sent the appellant to an orthopedic surgeon to
determine the relationship between his carpal tunnel and the factors of his
employment. Id. at 133. In the resulting December 17, 2015 second opinion, an
orthopedic surgeon confirmed that the appellant suffered from bilateral carpal
tunnel syndrome and bilateral Guyon canal entrapment and found that the
appellant’s conditions were medically connected to his employment. Id. at 116-
31. The orthopedic surgeon determined that the appellant could return to work
with the following restrictions: up to 4 hours per day of repetitive wrist
movements; 4 hours per day of pushing and pulling with a 40-pound weight
limitation; and 4 hours per day of lifting with a 30-pound weight limitation.
Id. at 130. The orthopedic surgeon also completed a December 23, 2015 work
capacity evaluation reflecting that the appellant could return to work with those
restrictions. Id. at 115. OWCP accepted the appellant’s occupational illness
claim based on bilateral carpal tunnel syndrome and bilateral Guyon canal
entrapment for medical benefits only. Id. at 108; IAF, Tab 6 at 99.
On January 22, 2016, the agency received copies of the second opinion
orthopedic evaluation and work capacity evaluation. I-3 AF, Tab 13 at 115-31.
On February 13, 2016, although the appellant was still on TTD status according
to his treating physician, the agency offered him a limited -duty assignment
performing clerk distribution duties “within restrictions” with a 40 -pound limit on
pushing and pulling, a 30 -pound limit on lifting, and no repetitive wrist
movements. IAF, Tab 6 at 113-14. The appellant did not accept this job offer.3
Id.; I-3 AF, Tab 34 at 9, Tab 35, Hearing Compact Disc (HCD) (testimony of the
Rehabilitation Program Coordinator).
On February 23, 2016, the appellant requested reassignment to a customer
care agent position at the agency’s Los Angeles Customer Call Center (LACCC)
as a reasonable accommodation. IAF, Tab 6 at 111; I-3 AF, Tab 34 at 9. On
February 29, 2016, the agency’s Santa Ana District Reasonable Accommodation
Committee offered him the opportunity to attend a meeting to discuss his
reasonable accommodation request, but he did not respond, and the agency closed
out his reasonable accommodation request. I-3 AF, Tab 20 at 92.
OWCP referred the appellant to another orthopedic surgeon for a second
opinion assessment in connection with his traumatic injury claim to determine the
nature of his condition, the extent of his disability, and the appropriate treatment.
I-3 AF, Tab 15 at 65. The appellant attended the appointment on
February 24, 2016. I-3 AF, Tab 14 at 140, Tab 15 at 13-24. In this second
opinion evaluation, the orthopedic surgeon stated that the appellant could return
to work in a sedentary capacity with a 10-pound restriction on lifting, pushing,
and pulling for up to 8 hours per day, and he later provided an April 19, 2016
work capacity evaluation reflecting that the appellant could return to work with
those restrictions. I-3 AF, Tab 14 at 141, Tab 15 at 24.
On May 3, 2016, the appellant requested reasonable accommodation
consistent with the restrictions articulated in the April 19, 2016 work capacity
evaluation. I-3 AF, Tab 20 at 91, Tab 34 at 11. On May 6, 2016, the agency
offered the appellant a limited-duty assignment performing “distribution clerk
duties within restrictions” with a 10-pound limit on lifting, pulling, and pushing.
IAF, Tab 6 at 105. The appellant did not respond to this job offer. Id.; HCD
(testimony of the Customer Services Supervisor). On June 10, 2016, the agency
offered the appellant another limited-duty assignment based on his restrictions as
identified in both OWCP second opinions performing, in pertinent part,4
“distribution clerk duties within restrictions” for up to 4 hours. I-3 AF,
Tab 9 at 18. The appellant did not accept this job offer. I -3 AF, Tab 34 at 8.
On June 15, 2016, the Customer Services Supervisor performed a search for
work within the La Puente Post Office within the appellant’s restrictions but did
not find any available work.2 IAF, Tab 6 at 103. In two OWCP Forms CA -17
dated June 29, 2016—one for the appellant’s traumatic injury and one for his
occupational illness—the appellant’s treating physician indicated that he could
return to work with restrictions. Id. at 102; I-3 AF, Tab 20 at 50. Specifically,
the physician stated that the appellant could perform sedentary work for 4 hours
per day with a 10-pound limitation on pushing, pulling, and lifting and no
overhead work, casing, or repetitive use of his hands. IAF, Tab 6 at 102; I -3 AF,
Tab 20 at 50.
On June 30, 2016, the appellant filed the instant appeal arguing that the
agency improperly denied his request for restoration.3 IAF, Tab 1, Tab 5 at 4.
The agency continued its search for work for the appellant within his medical
restrictions. IAF, Tab 6 at 101; HCD (testimony of the Customer Services
Supervisor and the Rehabilitation Program Coordinator) . In particular, on
July 13, 2016, the agency conducted a 50-mile geographic search that included
facilities within and outside the Santa Ana District boundaries for limited-duty
work, using the updated medical restrictions. I-3 AF, Tab 29 at 17-55, Tab 36,
Initial Decision (ID) at 9. On August 10, 2016, the agency notified the appellant
2 Although the worksheet documenting the appellant’s supervisor’s search for available
work reflects that she searched for work consistent with the second opinion dated
June 3, 2016, it appears from the listed restrictions that she is referring to the April 19,
2016 work capacity evaluation, which the agency received on June 3, 2016. IAF, Tab 6
at 103; I-3 AF, Tab 20 at 31.
3 Pursuant to the appellant’s request for an extension of time to complete discovery, the
administrative judge dismissed the appeal without prejudice. IAF, Tab 9. The appeal
was automatically refiled on October 12, 2016. Cayanan v. U.S. Postal Service , MSPB
Docket No. SF-0353-16-0599-I-2, Appeal File (I-2 AF), Tab 2. The appellant then
requested an additional extension of time for medical reasons, and the administrative
judge dismissed the appeal without prejudice for a second time. I -2 RAF, Tab 6, Initial
Decision. The appeal was automatically refiled on December 5, 2016. I -3 AF, Tab 1.5
that it was unable to find limited -duty work for him, either within the facility or
within the local commuting area. I -3 AF, Tab 15 at 162.
On January 9, 2017, the agency offered the appellant a limited-duty
assignment to train as a Passport Acceptance Agent. I-3 AF, Tab 29 at 58. The
appellant accepted this job offer on January 12, 2017. Id. However, he did not
pass the training required for the position. HCD (testimony of the Rehabilitation
Program Committee Lead). Around January 19, 2017, the agency returned the
appellant to work in a different assignment. I-3 AF, Tab 22 at 4; HCD (testimony
of the Rehabilitation Program Coordinator).
The administrative judge found that the appellant established jurisdiction
over the denial of restoration claim related to his status as a partially recovered
employee. ID at 6; IAF, Tab 7. After holding the appellant’s requested hearing,
the administrative judge issued an initial decision finding on the merits that the
appellant proved the following: (1) he was absent from his official position due
to a compensable injury; (2) he recovered sufficiently to return to duty on a
part-time basis or to return to work in a position with less demanding physical
requirements than those previously required of him; and (3) the agency denied his
restoration request on August 10, 2016, when it notified him that it was unable to
find limited-duty work for him. ID at 7. However, the administrative judge
found that the appellant failed to show that the agency’s denial of restoration was
arbitrary and capricious. ID at 8-15. The administrative judge also found that the
appellant failed to establish his discrimination and retaliation affirmative
defenses. ID at 15-25. The appellant has filed a petition for review of the initial
decision, and the agency has responded. Petition for Review (PFR) File, Tabs 3,
5.4
4 For the first time on review, the appellant has submitted a copy of chapter 5 of the
Employee and Labor Relations Manual. PFR File, Tab 3 at 11-346. Because the
appellant has not shown that this document was unavailable below despite his due
diligence, we decline to consider it for the first time on review. 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 generally will not consider evidence submitted for the first time with the petition6
ANALYSIS
We affirm the administrative judge’s determination that the appellant did not
prove his restoration claim, as modified to apply the Board’s recent case law.
The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, that Federal employees who suffer compensable injuries enjoy
certain rights to be restored to their previous or comparable positions. Kingsley
v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b).
Under OPM’s regulations, such employees have different substantive rights based
on whether they have fully recovered, partially recovered, or are physically
disqualified from their former or equivalent positions. Kingsley, 123 M.S.P.R.
365, ¶ 9; 5 C.F.R. § 353.301. Partially recovered employees, like the appellant,
are those who, “though not ready to resume the full range” of duties, have
“recovered sufficiently to return to part-time or light duty or to another position
with less demanding physical requirements.” Kingsley, 123 M.S.P.R. 365, ¶ 9
(quoting 5 C.F.R. § 353.102).
OPM’s regulations require that agencies “make every effort to restore in
the local commuting area, according to the circumstances in each case, an
individual who has partially recovered from a compensable injury and who is able
to return to limited duty.” Id., ¶ 10 (quoting 5 C.F.R. § 353.301(d)). To establish
jurisdiction over a claim of denial of restoration as a partially recovered
employee, an appellant is required to make nonfrivolous allegations5 of the
following: (1) he was absent from his position due to a compensable injury;
(2) he recovered sufficiently to return to duty on a part-time basis or to return to
work in a position with less demanding physical requirements than those
previously required of him; (3) the agency denied his request for restoration; and
for review absent a showing that it was unavailable before the record was closed despite
the party’s due diligence).
5 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).7
(4) the denial was arbitrary and capricious. Kingsley, 123 M.S.P.R. 365, ¶ 11;
5 C.F.R. § 1201.57(a)(4), (b). Once an appellant establishes jurisdiction, he is
entitled to a hearing at which he must prove the merits of his restoration appeal,
i.e., all four of the above elements, by a preponderance of the evidence.6
Kingsley, 123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4).
After the administrative judge issued his initial decision, the Board issued a
decision clarifying the fourth criterion in partial restoration appeals. Cronin
v. U.S. Postal Service , 2022 MSPB 13. The Board overruled Latham v. U.S.
Postal Service, 117 M.S.P.R. 400 (2012), and its progeny to the extent such
precedent held that a denial of restoration may be arbitrary and capricious based
on an agency’s failure to comply with its self-imposed restoration obligations,
such as those provided in the agency’s Employee and Labor Relations Manual
(ELM). Cronin, 2022 MSPB 13, ¶ 20. Accordingly, an agency’s denial of
restoration is only arbitrary and capricious if it failed to make every effort to
search within the local commuting area for vacant positions to which it could
restore the employee and to consider him for any such vacancies.7 Id., ¶¶ 20-21.
The Board in Cronin also clarified that claims of prohibited discrimination or
reprisal cannot serve as an alternative means of showing that a denial of
restoration was arbitrary and capricious. Id., ¶ 21. Because the Board issued
Cronin while this petition for review was pending, it is given retroactive effect
and applies to this appeal. Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 18
n.8. Therefore, as discussed below, we modify the initial decision to apply the
Board’s decision in Cronin.
6 A preponderance of the 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).
7 The appellant’s reference to Latham and the agency’s self-imposed ELM requirements
in his petition for review is, therefore, unpersuasive. PFR File, Tab 3 at 6, 8; I-3 AF,
Tab 21 at 62.8
We affirm the administrative judge’s finding that the agency did not
deny the appellant restoration through June 10, 2016.
As noted above, the agency offered the appellant limited-duty assignments
performing distribution clerk duties “within restrictions” on February 13, May 6,
and June 10, 2016, but the appellant did not accept any of these job offers.
IAF, Tab 6 at 105-06, 113-14; I-3 AF, Tab 9 at 18; HCD (testimony of the
Rehabilitation Program Coordinator and the Customer Service Supervisor). In the
initial decision, the administrative judge found that the agency’s job offers on
February 13, May 6, and June 10, 2016 fulfilled its restoration obligation because
they were consistent with the medical restrictions provided in the applicable
OWCP second opinions. ID at 13-14. On review, the appellant does not
challenge the administrative judge’s determination that the February 13 and
May 6, 2016 offers were not “so unreasonable” as to constitute a denial of
restoration, and we discern no basis to disturb this finding.
Indeed, the Board has found that there is no denial of restoration when the
appellant does not accept a valid restoration job offer. See Hamilton v. U.S.
Postal Service, 123 M.S.P.R. 404, ¶¶ 4, 15 (2016) (finding that when an appellant
accepted, but never reported for duty in a limited-duty assignment, she failed to
nonfrivolously allege that the agency denied her restoration); Ballesteros v. U.S.
Postal Service, 88 M.S.P.R. 428, ¶¶ 7 -12 (2001) (concluding that the Board
lacked jurisdiction over a restoration appeal when the appellant rejected the
rehabilitation job offer). Nonetheless, a restoration job offer may be deemed so
unreasonable as to amount to an effective denial of restoration. See Kingsley,
123 M.S.P.R. 365, ¶ 13. For example, a job offer that requires an appellant to
perform duties outside of his medical restrictions is tantamount to a denial of
restoration. Paszko v. U.S. Postal Service , 119 M.S.P.R. 207, ¶ 9 (2013). When,
as here, OWCP has not made a ruling on the medical suitability of a job offer, the
Board is free to make an independent finding on this matter. Id., ¶ 12;
Ballesteros, 88 M.S.P.R. 428, ¶ 9. To show that an agency’s restoration job offer9
is unreasonable, an appellant must present specific, independent evidence
corroborating his allegations. See Foley v. U.S. Postal Service , 90 M.S.P.R. 206,
¶ 6 (2001) (setting forth this requirement at the jurisdictional stage).
We have considered the appellant’s reassertion on review that the June 10,
2016 job offer was not within his medical restriction of sedentary duties because
it would have required him to stand and walk. PFR File, Tab 3 at 7. In the initial
decision, the administrative judge found this argument unavailing because the
offer was limited to distribution duties “within restrictions,” and the appellant
failed to proffer any credible evidence that the offer would require him to perform
nonsedentary work. ID at 14-15. The administrative judge’s findings are
supported by the record. See, e.g., I-3 AF, Tab 9 at 18 (noting that the June 10,
2016 limited-duty job offer did not expressly limit the appellant to sedentary
duties, but it provided, among other things, that he would “[p]erform distribution
clerk duties within restrictions” and that the duties were “[b]ased on [the] second
opinion for both cases per employee/representative request”);8 I-3 AF, Tab 14
at 141; HCD (testimony of the Customer Services Supervisor) (explaining that
there are sedentary distribution clerk duties, such as writing second notices, the
job offer was based on the appellant’s medical restrictions, and he would not be
asked to work outside of his restrictions).
We agree and further find that the appellant’s speculation on review that
the job offer would have required him to stand and walk, despite being limited to
duties “within restrictions,” falls short of his burden to present specific,
independent evidence corroborating his allegation that the job offer exceeded his
medical restrictions.9 See Foley, 90 M.S.P.R. 206, ¶ 6. Thus, we find no basis to
8 As discussed above, the December 17, 2015 second opinion for the appellant’s
occupational illness imposed additional medical restrictions. I-3 AF, Tab 13 at 130.
9 Although the appellant’s treating physician did not remove him from TTD status until
June 29, 2016, the appellant does not contend that he could not perform any duties
during this time, only that he had to perform sedentary duties. PFR File, Tab 3; IAF,
Tab 6 at 102, 104, 108-10, 115-21; I-3 AF, Tab 20 at 50, Tab 34 at 8. 10
disturb the administrative judge’s determination that the June 10, 2016 job offer
was not “so unreasonable” as to constitute an effective denial of restoration.
Accordingly, under the circumstances present here, we find that the agency did
not deny him restoration on this date.
We affirm, as modified, the administrative judge’s determination that
the agency did not violate its restoration obligations between June
11, 2016, and January 8, 2017, to find that a Customer Care Agent
position at the LACCC is not within the Board’s scope of review.
Between the appellant’s rejection of a valid job offer on June 10, 2016, and
the agency’s offer of a Passport Acceptance Agent position on January 9, 2017,
the agency made no additional job offers to the appellant. The administrative
judge found that the any denial of restoration during this period was not arbitrary
and capricious because the agency conducted an appropriate facility-wide search
in June 2016 and local commuting area search in July 2016. ID at 8-13. On
August 10, 2016, the agency informed the appellant that it had been unable to
find any work within his restrictions during its search. I-3 AF, Tab 15 at 162.
The administrative judge noted that the appellant did not challenge the
geographic scope of the local commuting area or assert that the agency’s July 13,
2016 search failed to encompass the local commuting area. ID at 10. The
appellant does not contest these findings on review, and we do not revisit them
here. Rather, the appellant reasserts on review his claim that he could have
performed work at the LACCC as a Customer Care Agent. PFR File, Tab 3
at 8-9; I-3 AF, Tab 7 at 9. We are not persuaded.
In its Cronin decision, the Board concluded that it lacks jurisdiction over
claims that the agency failed to restore partially recovered employees to duty in
whatever tasks are available regardless of whether those tasks comprise the
essential functions of an established position. Cronin, 2022 MSPB 13, ¶¶ 15-20.
Rather, the agency’s efforts to find work that did not constitute the essential
functions of an established and vacant position cannot form the basis of a11
restoration claim before the Board. Desjardin v. U.S. Postal Service , 2023 MSPB
6, ¶¶ 17-18.
The administrative judge found that the agency was not required to search
the LACCC for positions, even though it fell within the local commuting area, for
a number of reasons. ID at 10-11. As most relevant to our discussion here,
he reasoned that non-bid positions at the LACCC were reserved for injured
employees who had reached maximum medical improvement. ID at 10-11.
Because the appellant had not reached maximum medical improvement, the
administrative judge concluded that the agency’s failure to include the LACCC as
part of its July 13, 2016 local commuting area search was not arbitrary and
capricious. ID at 11.
We find it unnecessary to determine whether the administrative judge
properly concluded that the agency’s failure to include the LACCC in its search
was not arbitrary and capricious because the appellant was still improving
following his injuries. Instead, we conclude that the appellant could not perform
the essential functions of a Customer Care Agent. Customer Care Agents receive
and respond to customer telephone and email inquiries. I-3 AF, Tab 29 at 62. An
OWCP Rehabilitation Counselor conducted a job analysis describing the physical
requirements of the Customer Care Agent position. Id. at 62-66; HCD (testimony
of the Acting Manager of Support); see Smart v. Department of the Navy ,
92 M.S.P.R. 120, ¶ 11 (2002) (explaining that OWCP, not the employing agency
or the Board, possesses the requisite expertise to evaluate whether a position is
suitable in light of the employee’s particular medical condition). The duties
required up to 8 hours of intermittently grasping and moving a computer mouse,
and fine manipulation up to 8 hours of using a keyboard. I-3 AF, Tab 29 at 62,
66. Ability to use a keyboard and mouse were essential to the position. HCD
(testimony of the Acting Manager of Support). In particular, the job required
typing in the names, addresses, and case numbers of customers calling the
LACCC, and making notes of those calls. I-3 AF, Tab 29 at 66. It also required12
using a mouse to access pull-down menus on a computer screen. Id. Although
the typing and use of the mouse was intermittent, the Rehabilitation Counselor
indicated that the total amount of time spent on these activities was 3.2 hours in
an 8-hour shift. Id. at 62, 66.
These physical demands—which the appellant does not challenge on review
—are inconsistent with his doctor’s concurrent OWCP Form CA-17, which
indicated that the appellant should “avoid repetitive use of hands.” I-3 AF, Tab
20 at 50. Because the appellant could not perform these essential duties of the
Customer Care Agent position, the agency’s failure to offer him the position
cannot form the basis of a finding that it denied him restoration, as it falls outside
of our scope of review. The administrative judge’s different explanation for why
the agency did not violate the appellant’s restoration rights in connection with its
failure to search the LACCC does not provide a basis to reverse the initial
decision. 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).
We affirm, as modified, the administrative judge’s determination that the
appellant did not prove his affirmative defenses.
The appellant argued below that the agency discriminated against him
based on his age, disability, and race, and retaliated against him for requesting
reasonable accommodation. IAF, Tab 5 at 5; I-3 AF, Tab 7 at 4. In the initial
decision, the administrative judge found that the appellant failed to proffer “even
a scintilla” of evidence suggesting a discriminatory or retaliatory motive on the
part of the agency and thus concluded that he failed to prove his discrimination
and retaliation claims. ID at 20, 25. The administrative judge also found that the
appellant failed to prove that the agency improperly denied his reasonable
accommodation requests.10 ID at 18.
10 In Desjardin, 2023 MSPB 6, ¶ 25, the Board stated that the Board’s jurisdiction over
discrimination claims in connection with an alleged denial or restoration extends only to
an agency’s failure to restore the appellant due to its failure to properly search the local13
Since the initial decision was issued, the Board clarified the standards for
evaluating claims of discrimination and retaliation in Pridgen v. Office of
Management and Budget , 2022 MSPB 31. As explained in Pridgen, an appellant
can prove disparate treatment discrimination based on age, race, and disability by
showing that the prohibited consideration was at least a motivating factor in the
agency action. Pridgen, 2022 MSPB 31, ¶¶ 20-22, 40, 42. On review, the
appellant does not specifically challenge the administrative judge’s assessment of
his claims of age and race discrimination. PFR File, Tab 3. Further,
notwithstanding the fact that he did not have the benefit of Pridgen, we find the
administrative judge’s analysis of the appellant’s age and race claims consistent
with that decision. ID at 18-25. Therefore, we decline to reconsider his
determination that the appellant failed to prove discrimination based on age or
race.
Regarding the appellant’s claim of reprisal for equal employment
opportunity (EEO) activity, the administrative judge identified the appellant’s
reasonable accommodation requests as the only EEO activity, ID at 20, and the
appellant does not challenge this statement on review. After the initial decision
was issued, the Board clarified that an appellant alleging retaliation for requesting
a reasonable accommodation must prove “but-for” causation, i.e., that the agency
would not have taken the same action in the absence of his accommodation
request. Pridgen, 2022 MSPB 31, ¶¶ 44-48. Applying the Board’s case law at
the time, the administrative judge found that the appellant did not prove that his
reasonable accommodation requests were a motivating factor. ID at 20. The
appellant does not reassert his claim on review. An appellant who fails to prove
motivating factor necessarily fails to meet the more stringent “but-for” standard.
commuting area for vacant positions to which it could have reassigned him. Here,
because we have affirmed the administrative judge’s finding that the agency did not
violate this restoration obligation, we recognize that there is a question as to whether
we have jurisdiction over his EEO claims. However, we need not reach that issue here.
Even considering the appellant’s claims, as we do below, we agree with the
administrative judge that he failed to prove them on the merits.14
Desjardin, 2023 MSPB 6, ¶ 33. Accordingly, except as modified to find that the
appellant did not prove his requests for accommodation were a “but-for” cause of
the alleged denial of restoration, we decline to disturb the administrative judge’s
determination on this claim.
On review, the appellant challenges the administrative judge’s analysis of
his claims of failure to accommodate and disparate treatment disability
discrimination. PFR File, Tab 3 at 8-9. 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,
¶¶ 28-29. 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); Haas, 2022 MSPB
26, ¶ 28. The administrative judge found that the appellant failed to prove he was
qualified for his prior or a vacant position that he desired. ID at 14-18.
Therefore, he concluded that the appellant did not prove his disability
discrimination claims.
The appellant does not dispute the administrative judge’s determination
that he could not perform the duties of the Sales/Services Distribution Associate
position that he held at the time he was injured, even with accommodation.
ID at 16-17; PFR File, Tab 3 at 8-9. He also does not provide any specific reason
to find error with the administrative judge’s determination that he did not identify
any other vacant position during the relevant timeframe for which he could
perform the essential functions.11 ID at 17; PFR File, Tab 3 at 8-9. Instead, the
appellant argues that he could have performed “duties” of different jobs. We find
11 The appellant’s arguments on review that the administrative judge made “improper
determinations” regarding his discrimination and retaliation claims and that the agency
violated the Rehabilitation Act by requiring employees to reach maximum medical
improvement to be eligible for a rehabilitation assignment at the LACCC provide no
basis to disturb this finding. PFR File, Tab 3 at 7-9. 15
that the appellant provides no basis to find error in the administrative judge’s
determination that he did not prove his disability discrimination claims. See
Desjardin, 2023 MSPB 6, ¶ 29 (concluding that an appellant failed to prove his
disparate treatment and reasonable accommodation disability discrimination
claims because he did not allege he could perform the essential functions of his
position with or without accommodation, and there was no evidence of any vacant
position he could perform within his medical restrictions, even with a reasonable
accommodation).
The appellant’s other arguments on review provide no basis for review.
On review, the appellant argues that the administrative judge failed to
consider all of his pleadings. PFR File, Tab 3 at 6. The appellant has not
identified any particular pleading that the administrative judge failed to consider
or shown that any such error affected the outcome of the appeal. See Panter,
22 M.S.P.R. at 282. Accordingly, this argument provides no basis to disturb the
initial decision.
The appellant also argues that the administrative judge “made improper
determinations regarding the Agency’s [f]ailure to provide the Appellant with his
requested discovery.” PFR File, Tab 3 at 8. The record does not indicate that the
appellant preserved any objection to the administrative judge’s discovery rulings,
as required to preserve the alleged error for the Board’s review. Vores
v. Department of the Army , 109 M.S.P.R. 191, ¶ 14 (2008), aff’d, 324 F. App’x
883 (Fed. Cir. 2009). Further, administrative judges have broad discretion in
ruling on discovery matters, and absent an abuse of discretion, the Board will not
find reversible error in such rulings. Id. Additionally, even if the administrative
judge abused his discretion concerning his rulings below, the appellant must show
how that error affected the result reached in his appeal. Id. Here, the
administrative judge considered each of the appellant’s challenges to the agency’s
discovery responses but found that the appellant’s requests for admission,
document production, and interrogatories were redundant, duplicative, irrelevant,16
vague, or overbroad. I -3 AF, Tab 28 at 1-2. Thus, he denied the appellant’s
motions to compel. Id. The appellant’s mere disagreement with the
administrative judge’s findings on review provides no basis to find that he abused
his discretion or, even if he did, that such abuse of discretion affected the
outcome in this appeal. See Vores, 109 M.S.P.R. 191, ¶ 14. Accordingly, this
argument likewise provides no basis to disturb the initial decision.
NOTICE OF APPEAL RIGHTS12
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.
12 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
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,18
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 19
(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.13 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.
13 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
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.21 | Cayanan_Ramon_SF-0353-16-0599-I-3__Final_Order.pdf | 2024-05-08 | RAMON CAYANAN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0353-16-0599-I-3, May 8, 2024 | SF-0353-16-0599-I-3 | NP |
1,531 | https://www.mspb.gov/decisions/nonprecedential/Elliott-Thompson_Tracy_A_SF-0752-19-0240-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY A. ELLIOTT-THOMPSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-19-0240-I-1
DATE: May 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracy A. Elliott-Thompson , Tulsa, Oklahoma, pro se.
Catherine V. Meek , Long Beach, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appellant’s removal appeal for lack of jurisdiction. On petition for
review, the appellant asks that her request for a hearing be reconsidered.
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).
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 | Elliott-Thompson_Tracy_A_SF-0752-19-0240-I-1__Final_Order.pdf | 2024-05-07 | null | SF-0752-19-0240-I-1 | NP |
1,532 | https://www.mspb.gov/decisions/nonprecedential/Mahmood_Haneefah_R_SF-0752-17-0677-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HANEEFAH R. MAHMOOD,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0752-17-0677-I-2
DATE: May 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Kim , Esquire, Atlanta, Georgia, for the appellant.
Joshua Fizer and Matthew C. Miller , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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).
2
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
make clear that, consistent with the Board’s decision in Boo v. Department of
Homeland Security , 122 M.S.P.R. 100 (2014), the agency provided evidence
demonstrating that the appellant made the statements identified in both
specifications of the false statement charge for her own private material gain, and
to clarify the administrative judge’s findings concerning the appellant’s
affirmative defense of reprisal for equal employment opportunity (EEO) activity,
we AFFIRM the initial decision.
BACKGROUND
The appellant was previously employed as a Senior Case Technician with
the agency’s Disability Adjudication and Review office in Seattle, Washington.
Mahmood v. Social Security Administration , MSPB Docket No. SF-0752-17-
0677-I-1, Initial Appeal File (IAF), Tab 15 at 34. By a letter dated May 2, 2017,
the agency proposed to remove the appellant based on four charges: (1) failure to
cooperate with an administrative investigation, with a single specification;
(2) conduct unbecoming a Federal employee, with four specifications; (3) lack of
candor, with two specifications; and (4) false statements, with two specifications.
Id. at 94-113. The charges arose out of the appellant’s interactions with her
supervisor on three separate occasions: on January 19, 2017, during the agency’s
effort to investigate another employee’s failure to receive two original emails; on
3
March 14, 2017, during the agency’s investigation into allegations that the
appellant had harassed another employee; and during a conversation and
subsequent emails on March 29, 2017, regarding whether the appellant was
completing one of her assigned duties. Id. at 94-100. The appellant provided
written and oral replies to the proposed removal. Id. at 60-90. After considering
the appellant’s responses, the deciding official issued a decision sustaining all of
the charges and specifications and removing the appellant, effective August 4,
2017. Id. at 35-49.
The appellant timely filed an appeal with the Board challenging her
removal. IAF, Tab 1. The appellant also raised a number of affirmative defenses,
including a violation of her Weingarten rights,2 retaliation for her EEO activity, a
due process violation based on ex parte communications between several agency
officials involved in her removal, and a violation of the applicable collective
bargaining agreement. Id. at 2-12; Mahmood v. Social Security Administration ,
MSPB Docket No. SF-0752-17-0677-I-2 , Refiled Appeal File (RAF), Tab 15 at 2.
The appeal was dismissed without prejudice to refiling at the parties’ request, and
was subsequently automatically refiled. IAF, Tab 30; RAF, Tab 1; see RAF,
Tab 6. Following the first day of the appellant’s requested hearing in the refiled
appeal, the parties informed the administrative judge that they had reached a
tentative resolution of the appeal, and consequently, the administrative judge
postponed the remaining scheduled hearing days. RAF, Tabs 29-30, 35. After
the parties were unable to reach a final agreement to settle the appeal, see RAF,
Tab 31 at 1, the appellant withdrew her request for a hearing and requested a
decision on the written record, RAF, Tabs 39, 40.
2 Weingarten rights involve a private sector employee’s right, articulated in National
Labor Relations Board v. J. Weingarten, Inc. , 420 U.S. 251, 260 (1975), to request
union representation at an investigatory interview that the employee reasonably believes
might result in disciplinary action. See Howard v. Office of Personnel Management ,
31 M.S.P.R. 617, 621 (1986), aff’d, 837 F.2d 1098 (Fed. Cir. 1987) (Table). Congress
granted Federal employees Weingarten-type rights in the Civil Service Reform Act.
5 U.S.C. § 7114(a)(2)(B).
4
After the parties submitted their close of record briefs, RAF, Tabs 41-43,
the administrative judge issued an initial decision affirming the agency’s removal
action, RAF, Tab 44, Initial Decision (ID). The administrative judge found that
the agency proved all four charges and all of the attendant specifications. ID
at 8-25. She also found that the appellant failed to prove any of her affirmative
defenses. ID at 25-32. Finally, the administrative judge found that the agency
established a nexus between the misconduct and the efficiency of the service, and
determined that the removal penalty was reasonable under the circumstances. ID
at 32-35.
The appellant has timely 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
On review, the appellant challenges the administrative judge’s finding that
the agency proved the charge of failure to cooperate with an agency investigation,
arguing that her conduct did not rise to the level of a refusal to cooperate. PFR
File, Tab 1 at 9-12. The appellant also argues that the administrative judge
erroneously credited her supervisor’s version of events related to the conduct
unbecoming and lack of candor charges, even where it was in conflict with the
documentary evidence or was insufficiently specific. Id. at 12-16. Finally, the
appellant argues that the administrative judge applied the incorrect legal standard
for the false statement charge by considering whether the appellant made the
purportedly false statements with the intent to deceive, but without considering
whether she made the statements for “private material gain,” as required by the
Board in Boo v. Department of Homeland Security . Id. at 16-17. The appellant
has not challenged any of the administrative judge’s findings denying her
affirmative defenses.
5
The administrative judge correctly concluded that the agency proved the charge
of failure to cooperate with an administrative investigation.
Regarding the charge of failure to cooperate with an administrative
investigation, the appellant does not dispute the administrative judge’s finding
that she exited the interview room before she was asked or answered any
substantive questions for the agency’s investigation. See ID at 9-10. Instead, the
appellant reiterates her argument that she was reluctant to answer questions due
to the fact that she did not have a union representative present with her in-person,
and she faults the agency for failing to contact the union to see whether a
representative was available in -person on the day of her interview. PFR File,
Tab 1 at 9-11. The appellant also notes that she did not actually refuse to answer
any question and blames the agency for failing to attempt to reschedule the
meeting so that a union representative could be present in-person. Id. at 11-12.
She argues that her conduct did not constitute a failure to cooperate with the
investigation, and the administrative judge erred by concluding that the agency
proved the charge as written. Id. As support for her argument, the appellant cites
a number of Board and U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) cases that she argues demonstrate that her actions did not rise to the level
of an actual refusal to cooperate with the investigation. See id. at 9-12 (citing
Modrowski v. Department of Veterans Affairs , 252 F.3d 1344, 1350 (Fed. Cir.
2001); Pedeleose v. Department of Defense , 110 M.S.P.R. 508 (2009); Negron v.
Department of Justice , 95 M.S.P.R. 561 (2004); Hankins v. Department of the
Army, MSPB Docket No. DA-0752-13-0423-I-1, Final Order (Sept. 8, 2014)).
The events discussed in this charge occurred on January 19, 2017, when the
appellant was summoned to an interview room to discuss the facts and
circumstances surrounding another employee’s failure to receive two original
emails. IAF, Tab 18 at 19; see ID at 9. Before the appellant’s supervisor could
begin questioning the appellant, she expressed her belief that the investigation
concerned her pending EEO complaint and stated that she wanted her
6
representative present. IAF, Tab 18 at 19 . After informing the appellant that she
could not have an EEO representative, the appellant left the room. Id. She
returned approximately 4 minutes later and again demanded her choice of a
representative. Id. at 20. Her supervisor informed the appellant that she could
have a union representative assist her, at which point the appellant requested a
break for a few minutes to decide what to do and again left the room. Id.
at 20-21. After returning, the appellant restated her belief that she had the right
to have “any rep” assist her, but stated that she wanted a union representative,
and that she wanted to have the representative appear in-person.3 Id. at 21. The
appellant’s supervisor informed the appellant that she could not direct the manner
of how her union representative appeared and informed her that the representative
could appear by telephone. The appellant said “bye” and subsequently left the
room, never to return, without answering any substantive questions for the
interview. Id.
Concerning the appellant’s claims that she was entitled to have an
in-person union representative and that she rightfully refused to continue the
interview until an in -person representative was available, as the agency correctly
notes, the administrative judge considered and rejected this argument. PFR File,
Tab 3 at 11-12; see ID at 10-11; RAF, Tab 20 at 115. The administrative judge
specifically found that the applicable collective bargaining agreement did not
require the agency to allow an in -person union representative, and so the
appellant could not condition her cooperation with the agency investigation on a
representative’s physical presence at the interview. ID at 10-11, 30-31. We have
reviewed the applicable language in the collective bargaining agreement and
discern no reason to disturb the administrative judge’s finding. RAF, Tab 20
at 115; 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
3 As the union representative noted, the appellant’s office was located in Seattle,
Washington, and the union representatives were located at a different office, a
significant distance away, in Spokane, Washington. See IAF, Tab 42 at 198, 205.
7
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).
Further, as the administrative judge noted, the union representative who
was on call the day of the appellant’s interview indicated in deposition testimony
that she did not believe that the collective bargaining agreement required her
physical presence for a Weingarten meeting, and noted that because she was not
located in the same city as the appellant, she would not have even been able to be
physically present for the meeting and did not typically attend Weingarten
meetings in-person. ID at 10-11; see Tab 42 at 198, 205-08, 225-26.
Consequently, the appellant’s argument that the agency was obligated to
reschedule the interview to accommodate a union representative’s physical
presence is also without merit. PFR File, Tab 1 at 10-12.
Further, to the extent the appellant is arguing that her actions are
distinguishable from those in the Board and Federal Circuit cases she cites on
review, because she never actually “refused” to answer any questions, her
argument is inapposite. PFR File, Tab 1 at 9-12. As the administrative judge
noted, after the agency denied the appellant’s request for an in-person union
representative, the appellant made clear her intention not to participate in the
interview when she said “bye” to the interviewer before answering a single
substantive question, left the interview room for a final time, and made no further
attempt to contact the interviewer to continue the interview. ID at 9-11. In all of
the cases cited by the appellant on review other than Modrowski, the Board
ultimately upheld the charge of failure to cooperate with an investigation based
on conduct substantially similar to the appellant’s conduct in this case. See
Pedeleose, 110 M.S.P.R. 508, ¶¶ 3, 18-20 (upholding the charge of failure to
cooperate where the appellant refused to answer any questions on grounds that
the investigation was unlawful); Negron, 95 M.S.P.R. 561, ¶¶ 10-11, 31
(upholding the charge of failure to cooperate with an investigation based on the
8
appellant’s refusal to provide relevant documents in his possession in response to
an inquiry); Hankins, MSPB Docket No. DA-0752-13-0423-I-1, Final Order,
¶¶ 13, 15 (upholding a charge of failure to cooperate in an investigation where the
appellant did not “outright refuse[]” to answer any particular question, but
nevertheless was “evasive, refused to answer questions directly, and failed to
provide candid and complete answers”).4
Finally, although the Federal Circuit reversed the charge of failure to
cooperate with an investigation in Modrowski, it did so because the information
the agency provided to the appellant in that case created considerable ambiguity
about the scope of the appellant’s immunity from criminal prosecution, and the
appellant did not have an opportunity to meet with his attorney to discuss the
scope of his immunity before he refused to answer the questions—an issue that is
not pertinent to the instant appeal. See Modrowski , 252 F.3d at 1350-53.
Accordingly, we find no error in the administrative judge’s determination that the
agency met its burden of proving the charge of failure to cooperate with an
agency investigation.
The administrative judge correctly concluded that the agency proved all
specifications of the conduct unbecoming a Federal employee and lack of candor
charges.
The appellant also challenges the administrative judge’s findings that the
agency proved the conduct unbecoming a Federal employee and lack of candor
charges. PFR File, Tab 1 at 12-16. Regarding the conduct unbecoming charge,
the appellant attacks the administrative judge’s credibility findings, arguing that
she failed to address the discrepancy between the October 27, 2017 deposition
testimony of the appellant’s supervisor, in which the supervisor responded that it
was not his “recollection” that the appellant said anything about requesting a
representative prior to leaving the interview room for the first time during their
4 We are not citing to this nonprecedential decision as precedent in support of our
decision, but rather in order to respond to the appellant’s argument relying on this
decision. See 5 C.F.R. § 1201.117(c)(2).
9
January 19, 2017 interview, and the contemporaneously prepared notes from
another supervisor who was acting as a note-taker for the interview, reflecting
that the appellant did request a union representative before leaving the interview
for the first time. PFR File, Tab 1 at 12-13; see IAF, Tab 18 at 15; RAF Tab 42
at 100. The appellant argues that this discrepancy, and the administrative judge’s
failure to address it, calls into question the administrative judge’s reliance on the
note-taker’s notes for other purposes—namely, her reliance on the notes to
establish that the appellant did not request a break before exiting the interview for
the first time at 10:01 a.m. on January 19, 2017, which was relevant to the first
specification of the conduct unbecoming charge. PFR File, Tab 1 at 12-13; see
ID at 12-13.
We agree with the agency that the appellant’s reliance on this purported
discrepancy is misplaced. PFR File, Tab 3 at 16-17. As an initial matter, the
appellant’s supervisor merely stated, during a deposition that occurred 9 months
after the incident in question, that it was not his “recollection” that the appellant
requested her representative before leaving the meeting for the first time. See
RAF, Tab 42 at 100. This apparent memory lapse had no bearing on the
challenged specification, which concerned whether the appellant requested a
break. Further, the administrative judge considered the appellant’s claim that she
requested a break at 10:01 a.m., but declined to credit it. ID at 12-13; see IAF,
Tab 18 at 21. In making this determination, the administrative judge credited the
note-taker’s contemporaneous notes and the appellant’s supervisor’s hearing
testimony, both of which identified the appellant’s latter request for a break at
approximately 10:13 a.m., and reasoned that if a prior request for a break at
10:01 a.m. had occurred, the testimony or the notes would have reflected the
request. ID at 13. Given the administrative judge’s demeanor-based finding, we
defer to her credibility determination. See Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (observing that the Board generally must
give deference to an administrative judge’s credibility determinations when they
10
are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing).
With respect to the lack of candor specifications concerning the events on
January 19, 2017, the relevant specifications charge the appellant with
inaccurately annotating the meeting transcript to reflect that she asked for, and
was granted, a break before leaving the interview room for the first time. IAF,
Tab 15 at 95. As with the conduct unbecoming specifications, for each of these
specifications, the administrative judge credited the supervisor’s version of
events, noting that he had credibly and consistently testified at the hearing about
these issues, and that his recollection of events was corroborated by the
note-taker’s notes. ID at 12-13. By contrast, the administrative judge declined to
credit the appellant’s claim that she requested and was granted a break,
concluding that she had provided inconsistent and evolving explanations for why
she left the room, stating at various times that she did so because she “had a panic
attack” after being denied access to her union representative, or that she was
unable to talk and was “gasping for air” when she left the room. Id.; see RAF,
Tab 41 at 66-67. It is possible that “gasping for air” could be considered a
symptom of a “panic attack,” so it is at least arguable that the appellant’s varied
explanations for why she left the room were not necessarily inconsistent.
Nevertheless, we have reviewed the record as a whole, including the supervisor’s
testimony and the note-taker’s notes, and we see no reason to disturb the
administrative judge’s finding in this regard. See Haebe v. Department of Justice ,
288 F.3d at 1301.
Accordingly, with regard to the specifications of the charges of conduct
unbecoming a Federal employee and lack of candor related to the events of
January 19, 2017, we decline to disturb the administrative judge’s decision to
credit the appellant’s supervisor’s testimony and the note-taker’s
contemporaneous notes over the appellant’s version of the incident. See ID
at 12-13; IAF, Tab 15 at 94-95. The appellant’s attempts on review to have the
11
Board reweigh this evidence are unpersuasive. PFR File, Tab 3 at 5-7; see
Crosby, 74 M.S.P.R. at 105-06 (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,
33 M.S.P.R. at 359 (same).
Regarding the specification of the conduct unbecoming charge related to
the March 29, 2017 interaction between the appellant and her supervisor, the
appellant argues on review that the administrative judge failed to consider the
lack of specificity in the supervisor’s email to the appellant outlining the
appellant’s unprofessional conduct during their in-person conversation. PFR File,
Tab 1 at 14-15; see IAF, Tab 18 at 6-7. The relevant specification alleged that,
on the morning of March 29, 2017, after the appellant’s supervisor realized that
no one was covering the phones, he approached the appellant at her workstation
and asked her whether she was aware that she was scheduled to cover the phones,
and in response, the appellant made a number of disrespectful or inappropriate
statements, which were summarized in the proposed removal. IAF, Tab 15
at 94-95, 99. In a subsequent email later that day, the appellant’s supervisor
informed the appellant that her conduct that morning was unacceptable and
directed her to follow the standards of conduct expected of Federal employees.
Id. at 99; see IAF, Tab 18 at 6.
On review, the appellant argues that her supervisor’s email did not contain
the same level of detail as was contained in the notice of proposed removal, so
the administrative judge erred by crediting the supervisor’s recollection of what
the appellant said over the appellant’s assertion that she did not make the alleged
statements. PFR File, Tab 1 at 14-15. The appellant also appears to argue that
the administrative judge did not assign sufficient weight to the fact that there was
a more than 5-hour delay between when the March 29, 2017 interaction occurred
and when the appellant’s supervisor emailed the appellant to inform her that the
interaction was unacceptable and unprofessional. Id. at 15.
12
As the agency correctly notes, the administrative judge did acknowledge
the 5-hour gap between the interaction and the supervisor’s email, and credited
the supervisor’s explanation that he spent that period of time consulting with the
agency’s human resources and legal offices on how to appropriately address the
issue with the appellant. PFR File, Tab 3 at 19; see ID at 15-16. Regarding the
appellant’s suggestion that the lack of specificity in the supervisor’s email
undercuts the allegations in the notice of proposed removal, we disagree. The
administrative judge credited the supervisor’s account of the appellant’s
statements based on witness demeanor, along with the appellant’s own admission
that she perceived the supervisor’s statements as harassing, retaliatory, and
defamatory. She concluded that the appellant likely reacted negatively to the
supervisor’s statements in the manner described in the proposed removal. See ID
at 15-16. The appellant’s arguments on review are not sufficient to disturb the
administrative judge’s finding. Haebe, 288 F.3d at 1301 (stating that the Board
may overturn demeanor -based credibility determinations only when it has
“sufficiently sound” reasons to do so); see Faucher v. Department of the Air
Force, 96 M.S.P.R. 203, ¶ 8 (2004) (stating that “sufficiently sound” reasons for
overturning an administrative judge’s demeanor -based credibility determinations
include circumstances when the administrative judge’s findings are incomplete,
inconsistent with the weight of evidence, and do not reflect the record as a
whole).
Finally, regarding the two specifications of conduct unbecoming a Federal
employee, the agency alleged that on two separate occasions on March 14, 2017,
the appellant hung up the telephone on her supervisor while he was still speaking
to her. On review, the appellant denies hanging up on her supervisor, but she
does not offer any specific argument challenging the administrative judge’s
findings regarding these specifications. PFR File, Tab 1 at 7; see ID at 16-17.
Accordingly, we see no reason to disturb those findings on review. See Crosby,
74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R. at 359.
13
We modify the initial decision to clarify that the agency proved that the appellant
made the charged false statements with the requisite intent to defraud agency
officials for her own private material gain.
With respect to the false statement charge, the appellant argues on review
that the administrative judge analyzed the charge under the wrong legal standard.
PFR File, Tab 1 at 16-17. The specifications of the false statements charge relate
to an email the appellant sent on March 29, 2017, in which she accused her
supervisor of vowing to use his position to “slander [the appellant’s] credibility
during the course of [her] work performance,” and threatening the appellant that
he would “discipline [her] for speaking out,” neither of which was true. IAF,
Tab 15 at 95; see IAF, Tab 18 at 8-9. As the appellant correctly notes, to prove a
charge of false statements or falsification, an agency must prove by preponderant
evidence that the appellant: (1) supplied wrong information; and (2) she did so
knowingly and with the intention of defrauding, deceiving, or misleading the
agency. Haebe, 288 F.3d at 1305; see Leatherbury v. Department of the Army ,
524 F.3d 1293, 1300 (Fed. Cir. 2008). In Boo v. Department of Homeland
Security, the Board clarified that the second element of the charge requires that
the agency prove that the appellant’s falsification was done for her own “private
material gain.” Boo, 122 M.S.P.R. 100, ¶¶ 10-12 (modifying Board case law to
incorporate the elements of falsification established in Leatherbury). The
appellant argues that, although the administrative judge correctly identified the
required intent element of the falsification charge, she failed to address whether
the agency had proven that she made the statements in the email for her own
private material gain. PFR File, Tab 1 at 16-17. The appellant argues that
because neither the initial decision nor the agency’s filings discussed whether the
appellant made the statements in the email for her own “private material gain,”
neither specification can be sustained. Id.
Although the administrative judge did not specifically identify the “private
material gain” language from Boo in the initial decision, her findings clearly
14
reflect that the appellant made the statements in the emails for her own private
material gain. ID at 20-25. As the agency correctly notes, the Board emphasized
in Boo that what is defined as private material gain should be considered “quite
broad,” and constitutes any “advantage to be secured [by the employee],” and is
“by no means limited to monetary gains arising from a falsification.” Boo,
122 M.S.P.R. 100, ¶ 13 (quoting Bradley v. Veterans Administration , 900 F.2d
233, 237 n.6 (Fed. Cir. 1990)); see PFR File, Tab 3 at 23. In discussing whether
the appellant made the statements in the email with the intent to deceive or
mislead the agency, the administrative judge observed that the appellant copied
her second-level supervisor on the email in which she made the false statements,
and concluded that it was more likely true than not that the appellant did so with
the purpose of misleading her second-level supervisor into taking action against
her supervisor based on the accusations. ID at 22; see IAF, Tab 18 at 8. Based
on what the administrative judge identified as the appellant’s obvious frustration
with her supervisor, as well as her effort to falsely cast her supervisor in a
negative light, the administrative judge concluded that the appellant made the
false statements with the intent to deceive her second-level supervisor about the
actions of her first-level supervisor. See ID at 22-23.
This same evidence provides ample support for the conclusion that the
appellant made the false statement for her own private material gain. As the
administrative judge indicated, the appellant attempted to cast her supervisor in a
negative light by making the false statements about him with the goal of spurring
the second-level supervisor to take action against her supervisor. ID at 22. If the
appellant had succeeded in convincing her second-level supervisor to take some
sort of action against her supervisor, it would have been to her advantage. Id.
Such an objective would fit within Boo’s broad definition of private material
gain. See Boo, 122 M.S.P.R. 100, ¶¶ 10-13. Alternatively, even if the appellant’s
objective was merely to bolster her second-level supervisor’s perception of the
appellant at her own supervisor’s expense, by characterizing her supervisor in a
15
negative or unflattering light, that would also meet Boo’s broad definition of the
private material gain element. See id. Accordingly, to the extent the
administrative judge failed to specifically conclude that the appellant sent the
email identified in the false statements charge for her own “private material
gain,” we modify the initial decision to conclude that, based on our review of the
record, the agency met its burden of proving this element, and therefore proved
both specifications of the charge and the charge itself.
Finally, although the appellant does not challenge the administrative
judge’s findings regarding any of her affirmative defenses on review, we take this
opportunity to clarify one of those findings. In rejecting the appellant’s
affirmative defense of reprisal for EEO activity, the administrative judge
concluded that, although the responsible agency management officials were aware
of the appellant’s prior EEO activity, there was little evidence that they had any
motive to retaliate against the appellant, and the record was devoid of any
evidence that the appellant’s EEO activity played any role in the decision to
remove her. ID at 28-29. In analyzing this defense, the administrative judge
cited to the standard set forth in Savage v. Department of the Army , 122 M.S.P.R.
612, ¶¶ 48-51 & n.12 (2015), overruled in part by Pridgen v. Office of
Management and Budget , 2022 MSPB 31, and the standard set forth in Warren v.
Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir. 1986). ID at 27. The
correct standard for analyzing these claims of EEO reprisal is set forth in
Pridgen, 2022 MSPB 31.
In this case, the EEO activity at issue is a formal complaint in which the
appellant alleged discrimination and reprisal in violation of Title VII, the Age
Discrimination in Employment Act (ADEA), and the Rehabilitation Act of 1973.
RAF, Tab 12 at 28-29. To prove a claim of retaliation under Title VII or the
ADEA, the appellant would need to show that her protected activity was at least a
motivating factor in the action under appeal. Pridgen, 2022 MSPB 31, ¶¶ 20-22,
30. To prove a claim of retaliation under the Rehabilitation Act, the appellant
16
would need to show that the prohibited consideration was a but-for cause of the
action under appeal. Id., ¶¶ 46-47. In her initial decision, the administrative
judge found insufficient evidence to conclude that the appellant’s EEO activity
motivated either the notice of proposed removal or the removal decision itself.
ID at 29. This is tantamount to a finding that the appellant did not satisfy the
motivating factor standard. Because the appellant did not satisfy the motivating
factor standard, she also did not satisfy the but-for standard. See Johnson v.
Department of Veterans Affairs , 2023 MSPB 9, ¶ 5 n.2. We find that the
appellant received sufficient notice of her burden on this affirmative defense,
IAF, Tab 14 at 1-4, and that application of Pridgen would not warrant a different
result. Additionally, as previously noted, the appellant does not challenge the
administrative judge’s analysis of this affirmative defense on review. 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 to reverse an initial decision; 5 C.F.R. § 1201.115 (“The Board normally
will consider only issues raised in a timely filed petition or cross petition for
review.”). For the foregoing reasons, we affirm the initial decision sustaining the
appellant’s removal, as modified by this Final Order.
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
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.
17
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 representation
18
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
19
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
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.
20
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.
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. | Mahmood_Haneefah_R_SF-0752-17-0677-I-2__Final_Order.pdf | 2024-05-07 | HANEEFAH R. MAHMOOD v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-0752-17-0677-I-2, May 7, 2024 | SF-0752-17-0677-I-2 | NP |
1,533 | https://www.mspb.gov/decisions/nonprecedential/Adams_Christopher_A_CH-844E-22-0143-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER A. ADAMS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-22-0143-I-1
DATE: May 7, 2024
THIS ORDER IS NONPRECEDENTIAL1
Kristal Burke , Berea, Kentucky, for the appellant.
Linnette L. Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND 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)
dismissing his application for disability retirement under the Federal Employees’
Retirement System (FERS) as untimely filed. For the reasons set forth below, we
GRANT the appellant’s petition for review, REVERSE 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 OPM for further adjudication consistent with this Remand
Order.
BACKGROUND
The Department of the Army (DA) employed the appellant as a WG-11
Telecommunications Mechanic for several years. Initial Appeal File (IAF),
Tab 13 at 34, 43. In October 2018, the appellant had back surgery. Id. at 112-13.
After returning to duty, he injured his back at work in December 2018. Id. In
February 2019, DA ordered a fitness for duty examination, which found the
appellant unfit for his position and that reasonable accommodations for continued
employment in the position would not be possible. Id. at 107, 112-13. In March
2019, DA issued a letter of proposed removal due to his physical inability to
perform the duties of his position. Id. at 77-80.
DA issued a removal decision on April 24, 2019, effective April 26, 2019.2
Id. at 73-75. The decision letter noted that DA unsuccessfully searched for a
vacant, funded position to which the appellant could be reassigned given his
medical requirements. Id. at 73. The proposed removal letter, but not the
removal decision, informed the appellant of his possible eligibility for disability
retirement. Id. at 73-75, 78. But neither letter informed him of the 1-year
deadline to file the necessary application. Id.
Over 1 1/2 years after his removal, in November 2020, the appellant
applied for disability retirement under FERS. Id. at 52-55. On April 12, 2021,
the appellant filed an application for immediate retirement. Id. at 39-40. OPM
issued a reconsideration decision dismissing both of the appellant’s applications
because he applied after the statutory 1-year time limit lapsed. Id. at 5-8, 24-25.
The appellant filed this appeal alleging OPM wrongly dismissed his
application. IAF, Tab 1 at 4. He did not dispute the untimeliness of his
2 There is some evidence in the record that the removal may not have been effected until
May 8, 2019. IAF, Tab 13 at 31, 44, 49. However, as it is not relevant to our
disposition here, we need not determine whether the April or May 2019 date is correct. 2
application but stated that his mental and physical health had declined, apparently
suggesting that the time limit should be waived. Id. The administrative judge
granted the appellant’s hearing request on the issue of whether the appellant had a
mental condition that rendered him incompetent at the date of his separation or
within 1 year thereafter, such that the 1-year filing deadline could be waived.
IAF, Tab 26 at 1.
After the hearing, the administrative judge issued an initial decision
affirming OPM’s dismissal. IAF, Tab 42, Initial Decision (ID) at 1, 12. She
reasoned that both of the appellant’s applications to OPM were untimely because
he submitted them more than 1 year after his removal. ID at 4-7. She further
reasoned that the appellant failed to demonstrate that he became incompetent
before the April 26, 2020 filing deadline and so did not demonstrate that the
1-year filing deadline should be waived. ID at 7-12.
The appellant has timely filed a petition for review of the initial decision.
Petition for Review File, Tab 1. On review, the appellant reasserts that his back
surgery caused his memory loss and he is physically and mentally unable to think
and write for himself. Id. at 10. He asks the Board to reconsider for the sake of
his children. Id. The agency has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the appellant’s application for
disability retirement was untimely.
The administrative judge found that the appellant’s November 2020
application for disability retirement was untimely. ID at 4. Applications for
disability retirement must be filed with OPM “before the employee . . . is
separated from the service or within 1 year thereafter.” 5 U.S.C. § 8453. The
administrative judge reasoned that the appellant had to file his application by
April 26, 2020, which was 1 year from April 26, 2019, the effective date of his
removal. ID at 4; IAF, Tab 13 at 73. The parties do not dispute this finding on
review, and we decline to disturb it under the circumstances here. 3
We toll the deadline due to the employing agency’s failure to provide notice as
required by 5 C.F.R. § 844.202(b)(1).
The administrative judge did not address the fact that DA failed to inform
the appellant of the 1-year filing deadline. We find that this was reversible error
and that equitable tolling of the statutory filing deadline is available here.
Section 844.202(b)(1) of title 5 of the Code of Federal Regulations states
that an agency removing an employee, apparently based on his medical inability
to perform in his position, “must advise the employee in writing of his or her
possible eligibility for disability retirement and of the time limit for filing an
application.” The U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
has held that the 1-year filing deadline required by 5 U.S.C. § 8453 can be waived
when the agency fails to provide these details. See, e.g., Johnson v. Office of
Personnel Management , No. 2015-3175, slip op. at 3-4 (Fed. Cir. May 24, 2016)
(concluding that the failure to provide notice under 5 C.F.R. § 844.202(b)(1)
could require waiver of the 1-year filing deadline); Winchester v. Office of
Personnel Management , 449 F. App’x 936, 937-39 (Fed. Cir. 2011) (finding that
failure to provide regulatory notice under 5 C.F.R. § 831.1205(b)(1), the
regulatory equivalent of 5 C.F.R. § 844.202(b)(1) applicable to disability
retirement applications submitted under the Civil Service Retirement System,
could serve as a basis to equitably toll the filing deadline). Following the Federal
Circuit’s remand of Johnson to the Board, the Board in turn remanded the case to
the regional office to determine if notice was required under the regulation, i.e., if
the employee’s removal was “apparently caused by a medical condition.”
Johnson v. Office of Personnel Management , MSPB Docket
No. CH-844E-14-0449-M-1, Remand Order, ¶ 4 n.2, ¶¶ 6-7 (Sept. 2, 2016)
(quoting 5 C.F.R. § 844.202(b)(1)). Although we are not bound by the Federal
Circuit’s nonprecedential decisions, we find these decisions persuasive in the
instant case. See Special Counsel v. Coffman, 124 M.S.P.R. 130, ¶ 56 n.10 (2017)4
(explaining that the Board may rely on unpublished decisions of the Federal
Circuit if it finds the court’s reasoning persuasive) .
DA proposed and ultimately removed the appellant for physical inability to
perform the duties of his position due to complications related to his back
surgery, medical disabilities for which recovery was not expected. IAF, Tab 13 at
73-75, 77-80, 112-13. It explained that “the proposed action to terminate [the
appellant] is not a result of [his] misconduct, but is due to medical
disqualification.” Id. at 73. Thus, his removal was explicitly based on disability,
and DA was required to advise the appellant of his possible eligibility for
disability retirement and the time limit for filing an application. 5 C.F.R.
§ 844.202(b)(1). Although DA advised him of his possible eligibility for
disability retirement, it is undisputed that DA failed to advise the appellant of the
time limit for filing an application. IAF, Tab 13 at 73-75, 77-80. Because the
employing agency failed to fulfill its notice requirements under 5 C.F.R.
§ 844.202(b)(1), we find the appellant’s 1-year deadline to file his disability
retirement application should have been equitably tolled.3
ORDER
For the reasons discussed above, we remand this case to OPM for further
adjudication in accordance with this Remand Order.
OPM shall waive the statutory time limit for filing the application for
disability retirement and shall determine the merits of the application in a new
final decision addressing whether the appellant’s medical conditions as raised in
3 Although the appellant may have been aware of his possible entitlement to disability
retirement, his “actual awareness” of his rights does not release DA from its obligations
to notify him of the deadline by which he must submit an application. See Harris v.
Office of Personnel Management , 888 F.2d 121, 124 (Fed. Cir. 1989 ) (finding
annuitant’s “actual awareness” of his election right for survivor benefits did not
overcome need to determine whether annuitant actually received statutorily required
notice); Murphy v. Office of Personnel Management , 50 M.S.P.R. 407, 411-12 (1991 )
(same). Moreover, although the appellant was apparently aware of his possible
entitlement to disability retirement, there is no indication that he was aware of the
1-year deadline to file his application.5
his application materials entitle him to disability retirement benefits. OPM shall
issue the new decision within 60 days of the date of this Order and in that
decision shall advise the appellant of the right to file an appeal with the Board if
he disagrees with that new decision. See 5 U.S.C. § 8461(e)(1); 5 C.F.R.
§ 841.308. Any such appeal must be filed consistent with the Board’s
regulations. We ORDER the appellant to provide all necessary information that
OPM requests to help it carry out the Board’s Order. See 5 C.F.R. § 1201.181(b).
If OPM fails to issue the ordered decision within 60 days of the date of this
Order, the appellant may file a petition for enforcement with the Central Regional
Office. 5 C.F.R. § 1201.181(a). The petition should contain specific reasons why
the appellant believes that OPM has not fully carried out the Board’s Order and
should include the dates and results of any communications with OPM about its
progress in issuing its final decision. 5 C.F.R. § 1201.182(a). Any petition for
enforcement must be filed within 90 days of the date of this Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Adams_Christopher_A_CH-844E-22-0143-I-1__Remand_Order.pdf | 2024-05-07 | CHRISTOPHER A. ADAMS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-22-0143-I-1, May 7, 2024 | CH-844E-22-0143-I-1 | NP |
1,534 | https://www.mspb.gov/decisions/nonprecedential/Szymanski_Frederick_F_DC-0831-18-0795-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDERICK F. SZYMANSKI,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-18-0795-I-1
DATE: May 7, 2024
THIS ORDER IS NONPRECEDENTIAL1
Frederick F. Szymanski , Miami, Florida, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for failure to prosecute. For the reasons discussed below,
we GRANT 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.
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
In a reconsideration decision, the Office of Personnel Management (OPM)
denied the appellant’s request to elect a survivor benefit election annuity under
the Civil Service Retirement System. Initial Appeal File (IAF), Tab 7 at 8-9.
The appellant appealed OPM’s decision to the Board. IAF, Tab 1. He did not
request a hearing. Id.
The administrative judge scheduled a close of record conference for
December 5, 2018, and sent notification of the conference date to the appellant at
the Miami, Florida address that he provided in his initial appeal. IAF, Tab 5. On
December 3, 2018, the administrative judge rescheduled the close of record
conference for December 10, 2018,2 and served the notice regarding that change
on the appellant at the same address. IAF, Tab 8. The appellant did not appear
for the December 10, 2018 telephonic close of record conference, and on the same
date, the administrative judge sent the appellant an order to show cause, ordering
him to submit, by December 21, 2018, evidence demonstrating good cause for his
failure to appear. IAF, Tab 9. The appellant did not respond to the order, and on
January 29, 2019, the administrative judge dismissed the appeal for failure to
prosecute. IAF, Tab 10, Initial Decision (ID).
In his timely filed petition for review, the appellant states that he was
aware that the close of record conference was scheduled for December 5, 2018.
Petition for Review (PFR) File, Tab 1 at 2. He states that, at the time of the
scheduled conference on December 5, 2018, he called the number provided by the
administrative judge for the conference, and, when there was no answer, he called
the Board regional office number and left a voicemail message. Id. He states
that, on December 20, 2018, he received the notice that the close of record
conference had been rescheduled from December 5 to December 10, 2018. Id.
The appellant explains that the notice was mailed from Virginia on December 3,
2 The conference had to be rescheduled from December 5, 2018, because President
Trump issued a proclamation closing executive departments and agencies of the Federal
Government on December 5, 2018, in honor of President George H. W. Bush.2
2018, to a service located in Miami, Florida that forwards U.S. mail to
individuals, such as the appellant, who live in Panama, and was in turn mailed to
him in Panama on December 12, 2018. Id. He states that he received it on
December 20, 2018. Id. The appellant states that, on December 20, 2018, he
called the regional office, spoke with a staff member, explained the situation,
agreed that mailing was not working out for him, and asked if he could be
contacted via email instead. Id. He states that the staff member transferred his
call to the administrative judge’s office, and he left a message on the
administrative judge’s voice mail about the situation. According to the appellant,
he received the December 10, 2018 show cause order in Panama on January 10,
2019, but he did not call the Board due to the Government shutdown. Id. The
appellant also submits a timely supplement to his petition for review that restates
the chronology of events, and it has been placed into the record. PFR File,
Tabs 5-6. The agency has responded in opposition to the petition. PFR File,
Tab 4.
ANALYSIS
The severe sanction of dismissal with prejudice for failure to prosecute an
appeal should not be imposed when a pro se appellant has made incomplete
responses to the Board’s orders but has not exhibited bad faith or evidenced any
intent to abandon his appeal, and appears to be confused by Board procedures.
Chandler v. Department of the Navy , 87 M.S.P.R. 369, ¶ 6 (2000). Further,
failure to obey a single order does not ordinarily justify dismissal for failure to
prosecute. Heckman v. Department of the Interior , 106 M.S.P.R. 210, ¶ 16
(2007); Chandler, 87 M.S.P.R. 369, ¶ 6. Nevertheless, absent a showing of abuse
of discretion, the Board will not reverse an administrative judge’s determination
regarding the imposition of sanctions, including the sanction of dismissal with
prejudice. See Holland v. Department of Labor , 108 M.S.P.R. 599, ¶ 9 (2008);
Heckman, 106 M.S.P.R. 210, ¶ 15. 3
The appellant consistently has been clear that he lives in Panama, and
before his retirement in 1998, worked as a Panama Canal employee. IAF, Tab 1
at 1, 3, 7, 9. The Board has recognized that mail delays to Panama are common.
Bocanegra v. Office of Personnel Management , 52 M.S.P.R. 114, 116 -17 (1992)
(recognizing that there are mail delays in postal service between the United States
and Panama). Because of that, apparently it is not uncommon for individuals
living there to use a service based in the United States that forwards mail to them.
See https://www.liveandinvestoverseas.com/in-focus-panama/experts-guide-
postal-services-panama/ (last visited on May 6, 2024). That is apparently what
the appellant does.
Based on the above, we find that the appellant’s explanation in his petition
for review of the reasons for his late receipt of the administrative judge’s orders
is credible, as is his detailed explanation of his attempts to comply with the order
scheduling the close of record conference for December 5, 2018, and to explain to
the administrative judge the reason for his failure to comply with the order
rescheduling the conference for December 10, 2018. His recounting of his
fruitless attempts to join the close of record conference that had been scheduled
for December 5, 2018, is corroborated by the fact that, as the administrative judge
stated in his notice rescheduling the conference, the Federal government was
closed on December 5, 2018. The phone numbers that the appellant states that he
called were the correct phone numbers provided to join the conference call and to
reach the regional office.
Although the appellant did not comply with the administrative judge’s
December 3, 2018, Order Rescheduling the Close of Record Conference, or the
administrative judge’s Order to Show Cause, under the circumstances of this case,
his actions did not exhibit bad faith or evidence an intent to abandon his appeal.
We therefore find that, here, the extreme sanction of dismissal for failure to
prosecute, which denied the appellant an opportunity for review of his appeal on
the merits, does not serve the ends of justice. See Holland, 108 M.S.P.R. 599,4
¶¶ 10, 12 (finding that the extreme sanction of dismissal for failure to prosecute
did not serve the ends of justice where there was no evidence of bad faith or an
intent to abandon the appeal); Tully v. Department of Justice , 95 M.S.P.R. 481,
¶¶ 12 (2004) (vacating an administrative judge’s dismissal for failure to prosecute
because the sanction was too severe, although the pro se appellant had twice
failed to file prehearing submissions and to appear for prehearing conferences).
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.5 | Szymanski_Frederick_F_DC-0831-18-0795-I-1__Remand_Order.pdf | 2024-05-07 | FREDERICK F. SZYMANSKI v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-18-0795-I-1, May 7, 2024 | DC-0831-18-0795-I-1 | NP |
1,535 | https://www.mspb.gov/decisions/nonprecedential/Resumadero_Lynda_d_SF-0831-22-0093-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LYNDA DE SAN JUAN
RESUMADERO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-22-0093-I-1
DATE: May 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles, I , Zambales, Philippines, for the appellant.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) denying her
application for survivor annuity benefits under the Civil Service Retirement
System (CSRS). The administrative judge found that the appellant failed to
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).
timely request reconsideration of OPM’s initial decision denying her application
for survivor benefits under CSRS. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and AFFIRM
OPM’s decision on the merits.
BACKGROUND
This case concerns the appellant’s entitlement to survivor annuity benefits
under CSRS based on the 23 years of Federal service of her deceased spouse in
civilian positions with the U.S. Navy in or around Subic Bay, Philippines, over
various periods spanning 1946-48 and 1960-82. Initial Appeal File (IAF), Tab 11
at 12-15, 46-48. The appellant’s spouse retired in July 1982, which was
classified by the Navy as a disability retirement, and received 24 months of
retirement pay under the Filipino Employment Personnel Instruction (FEPI) and
an applicable collective bargaining agreement. Id. at 16, 84. The appellant and
her spouse were married in 1985, IAF, Tab 8 at 31, and, in 1986, her spouse
applied for retirement under CSRS, IAF, Tab 11 at 46. OPM denied his
application in initial and reconsideration decisions in 1988 and 1989,
respectively. Id. at 40-42, 45. The appellant and her spouse remained married
until his death in 2004. IAF, Tab 8 at 33-34.
This case comes to us with an unusual procedural posture. The appellant
first applied for survivor annuity benefits under CSRS in March 2005. Id.
at 26-30. In April 2005, OPM denied the appellant’s application because her
spouse did not complete 18 months of creditable service. Id. at 23-25. The 2005
denial was in the form of an initial decision and notified the appellant of the
procedures for requesting reconsideration from OPM. Id.; see 5 C.F.R.
§ 831.109(c). During the processing of this appeal, the parties have disputed
whether she sought reconsideration. The appellant has claimed that she requested
reconsideration to OPM following the 2005 initial decision, IAF, Tab 12 at 1, but
she also has claimed that she was not aware of receiving the 2005 initial decision,2
IAF, Tab 1 at 1. OPM has asserted that the appellant did not request
reconsideration following the 2005 initial decision. IAF, Tab 8 at 4-5. In any
event, in September 2014, the appellant filed another application for survivor
annuity benefits under CSRS. Id. at 8-20. OPM issued a letter in November
2014, stating the following:
This is in reply to your request for benefits under the Civil Service
Retirement System.
We have verified that [your spouse] did perform Federal civilian
employment ending in July 23, 1982 but no retirement deductions
were withheld. A complete review of your husband’s records shows
that you are not eligible to receive any benefits from the Civil
Service Retirement System based on the above mentioned service.
A review of our records also shows that our final decision[2] on this
issue was sent to you on April 29, 2005. You have received due
process under the law. There is nothing further we can add.
Id. at 7.
In or around October 2021, the appellant filed a Board appeal arguing that
OPM issued her an initial decision in 2014 and failed to respond to repeated
requests for reconsideration in the years following and was thus deemed to have
issued an appealable decision. IAF, Tab 1 at 1, Tab 4 at 1 (citing Okello v. Office
of Personnel Management , 120 M.S.P.R. 498, ¶ 14 (2014)). She did not request a
hearing. IAF, Tab 1 at 1, Tab 2 at 1-2. OPM moved to dismiss the appeal,
asserting that there were no reasonable grounds for the Board to assume
jurisdiction over its April 2005 initial decision. IAF, Tab 8 at 5. The
administrative judge advised that he was construing the November 2014 decision
as a negative reconsideration decision that found implicitly that the appellant’s
September 2014 application was an untimely request for reconsideration. IAF,
Tab 9 at 3. He opened the record on threshold issues, including whether the
appellant showed under 5 C.F.R. § 831.109(e)(2) that either she was not notified
of the time limit to request reconsideration from OPM on the April 2005 initial
2 This was an error by OPM; the April 29, 2005 decision was an initial decision. IAF,
Tab 8 at 23.3
decision and was not otherwise aware of it, or that she was prevented by
circumstances beyond her control from making the request within the time limit.
Id. Following the parties’ submissions, the administrative judge issued an initial
decision on May 20, 2022, affirming OPM’s November 2014 decision after
finding that the appellant failed to meet her burden regarding these limited issues.
IAF, Tab 23, Initial Decision (ID) at 10-11.
The appellant has filed a petition for review in which she mainly provides
arguments and evidence on the merits of her claim for survivor annuity benefits
under CSRS. Petition for Review (PFR) File, Tab 1 at 1-14. As her petition for
review was postmarked July 11, 2022, the Office of the Clerk of the Board
notified the appellant of its untimeliness, and she has submitted a motion to
accept the petition for review as timely filed. PFR File, Tabs 2, 5. OPM has
responded that the Board should dismiss the petition on timeliness grounds or
deny it on the merits. PFR File, Tab 4.
ANALYSIS
We vacate the administrative judge’s decision because the Board has jurisdiction
over the merits of the appeal.
In general, the Board has jurisdiction over OPM determinations affecting
an appellant’s rights or interests under CSRS only after OPM has issued a final
decision, which typically means a reconsideration decision. McNeese v. Office of
Personnel Management , 61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir.
1994); see 5 U.S.C. § 8347(d)(1); 5 C.F.R. §§ 831.109(f), 831.110. OPM’s
regulation requires that a final decision inform the appellant of her right to appeal
to the Board. 5 C.F.R. § 831.109(f). However, even if OPM does not label a
decision as a final decision or provide notice of Board appeal rights, it may be
deemed by the Board to have issued a final, appealable decision under certain
circumstances. See Powell v. Office of Personnel Management , 114 M.S.P.R.
580, ¶¶ 8-9 (2010). In Powell, the Board found jurisdiction when OPM issued a
decision on an appellant’s eligibility for benefits, had not previously issued a4
final or reconsideration decision, and indicated that it intended to take no further
action on the appellant’s case. Id., ¶¶ 8-9 & n.2 (distinguishing Muyco v. Office
of Personnel Management , 104 M.S.P.R. 557, ¶¶ 2–3, 11–12 (2007), in which the
Board found that OPM’s letter informing the appellant that it had nothing to add
to its previously issued final decision was not a new reconsideration decision or
any other type of decision). Because, as discussed below, circumstances very
similar to those in Powell exist here, we find that the administrative judge
construed the issues too narrowly.
Here, the administrative judge found that OPM’s November 2014 letter
constituted a decision finding that the appellant’s September 2014 application for
benefits was effectively an untimely request for reconsideration of OPM’s April
2005 initial decision. ID at 8. We conclude, however, that OPM’s November
2014 letter addressed and rejected the merits of her benefits claim—despite its
statement that there was “nothing further [it could] add” to its April 2005
decision. IAF, Tab 8 at 7. More specifically, OPM stated that it performed a
“complete review” of her spouse’s records, which showed that she was not
eligible to receive benefits. Id. We find that this language in OPM’s November
2014 letter—although superficial—reflects a decision on the appellant’s
eligibility for survivor benefits under CSRS. Id. Thus, while OPM admits that
the November 2014 letter “should have treated the appellant’s second application
[for survivor benefits] as an untimely request for reconsideration,” it clearly did
not. IAF, Tab 11 at 5.
Moreover, although OPM did not label its November 2014 letter as either
an initial decision or a final decision, nor did it state the appellant’s appeal rights
as required under its regulations when issuing such decisions, its decision
reflected that it did not intend to take further action in this case. IAF, Tab 8 at 7;
see 5 C.F.R. § 831.109(c), (f). OPM also did not express an intent to take further
action on the case in its submissions to the Board; instead, it stated that it was not
opposed to the Board deciding the merits of the appellant’s entitlement to the5
benefits she seeks. IAF, Tab 11 at 4-5. Under these circumstances, we find that
OPM’s November 2014 letter constitutes an appealable final decision regarding
the appellant’s entitlement to benefits under CSRS. See Powell, 114 M.S.P.R.
580, ¶¶ 8-9. Accordingly, the Board has jurisdiction to consider the merits of the
appellant’s claim. See 5 U.S.C. § 8347(d)(1); 5 C.F.R. § 831.110.
Good cause existed for the appellant’s delay in filing her initial Board appeal, and
the appellant’s petition for review was timely filed.
Because the November 2014 letter constitutes a final, appealable decision
on the appellant’s application for survivor benefits, it is immaterial whether she
timely requested reconsideration from OPM on the April 2005 decision.
However, there is a question whether the appellant’s October 2021 appeal to the
Board on the November 2014 decision was timely filed or whether good cause
existed for an untimely filing.
Generally, an appellant must file an appeal with the Board no later than
30 calendar days after the effective date, if any, of the action she is challenging,
or 30 calendar days after the date she receives the agency’s decision, whichever is
later. 5 C.F.R. § 1201.22(b). However, when an agency takes an action that is
established to be appealable to the Board, it has an obligation to notify the
appellant of her Board appeal rights. See 5 C.F.R. § 1201.21. Absent this
notification, the appellant is not required to show due diligence in discovering her
appeal rights; the question is whether the appellant was diligent in filing an
appeal after she learned that she could do so. O’Leary v. Office of Personnel
Management, 86 M.S.P.R. 87, ¶ 11 (2000). The record does not reflect when the
appellant believed she could file an appeal with the Board; however, the appellant
claimed that she requested reconsideration from OPM on the November 6, 2014
decision on November 24, 2014, and followed up by “July 13, 1919 [sic] and . . .
November 3, 1919 [sic],” before concluding that OPM’s failure to issue a
reconsideration decision established Board jurisdiction. IAF, Tab 1 at 1. We find
that the appellant’s confusion regarding the effect of the November 2014 letter6
was reasonable, and we find good cause for the appellant’s delay in filing her
Board appeal.
Finally, we find that the appellant’s petition for review, received by the
Board on August 1, 2022, was timely filed. PFR File, Tab 1. We have
recognized that there are frequent mail service delays between the United States
and the Philippines. See Excala v. Office of Personnel Management , 84 M.S.P.R.
277, ¶ 3 (1999). Furthermore, the appellant has presented evidence of how such
delays affected her filings by providing copies of the envelopes containing her
filings bearing dated postage stamps.3 PFR File, Tabs 1, 5. The appellant has
shown that her petition for review was properly addressed to the Board and
placed in the Postal Service mail stream with the correct postage on July 11,
2022. PFR File, Tab 1 at 17. Thus, we treat her petition for review as filed on
July 11, 2022. See Gaydon v. U.S. Postal Service , 62 M.S.P.R. 198, 202 (1994).
The appellant has also shown through a dated postage stamp that both she and her
representative did not receive the administrative judge’s May 20, 2022 initial
decision until July 11, 2022, by no apparent fault of her own. PFR File, Tab 1
at 15, Tab 5 at 1-2. Thus, we find that her July 11, 2022 petition for review was
timely filed. See 5 C.F.R. § 1201.114(e).
The appellant is not eligible for a survivor annuity.
The appellant has not requested a hearing on her appeal, and both parties
have submitted evidence and argument in support of their positions on the
merits.4 IAF, Tab 11; PFR File, Tab 1. Accordingly, we find that it is
unnecessary to remand this appeal to the Western Regional Office, and we have
3 We find that the appellant’s Motion to Accept Filing as Timely, in which she provided
this evidence, was also timely filed. The postage-stamped envelope reflects that she
mailed her motion on or around August 26, 2022, prior to the September 2, 2022
deadline indicated by the Board in its August 3, 2022 notice. PFR File, Tab 2 at 2,
Tab 5 at 4-5.
4 Because the appellant has not requested a hearing, she has waived her right to one.
See Wasserman v. Department of the Interior , 66 M.S.P.R. 391, 393-94 (1995); 5 C.F.R.
§ 1201.24(a)(3), (e).7
adjudicated the appeal on the merits. See Gallardo v. Office of Personnel
Management, 46 M.S.P.R. 599, 601, aff’d, 944 F.2d 913 (Fed. Cir. 1991) (Table);
Lapenas v. Office of Personnel Management , 44 M.S.P.R. 303, 307 (1990);
Rosales v. Office of Personnel Management , 41 M.S.P.R. 590, 593 (1989); see
also 5 C.F.R. § 1201.117(a)(5).
A survivor annuity is payable if the person on whose service the claim is
based died while serving in a position covered by CSRS after completing at least
18 months of service, or was an annuitant who died having elected to provide a
survivor annuity for his spouse . 5 U.S.C. § 8341(b), (d); O’Brien v. Office of
Personnel Management , 66 M.S.P.R. 16, 18 (1994). The appellant’s spouse died
after his retirement from Federal service. IAF, Tab 11 at 16. Thus, the appellant
must prove that her spouse was entitled to an annuity to establish her entitlement
to a survivor annuity. See Cheeseman v. Office of Personnel Management ,
791 F.2d 138, 140-41 (Fed. Cir. 1986) (reasserting that the burden of proving
entitlement to a survivor annuity is on the applicant for benefits).
Pursuant to 5 U.S.C. § 8333(a)–(b), to qualify for a CSRS retirement
annuity, an employee must have performed at least 5 years of creditable civilian
service and must have served at least 1 year of his last 2 years of Federal service
in a covered position—i.e., service that is subject to the Civil Service Retirement
Act (CSRA). Lledo v. Office of Personnel Management , 886 F.3d 1211, 1213
(Fed. Cir. 2018). The service of employees appointed under temporary,
intermittent, term, and excepted indefinite appointments has been excluded from
coverage under the CSRA. Encarnado v. Office of Personnel Management ,
116 M.S.P.R. 301, ¶ 8 (2011); 5 C.F.R. § 831.201(a). In 1989, in a final decision,
OPM denied the annuity application of the appellant’s spouse because he did not
complete 5 years of creditable Federal service ending in separation from a
position covered under CSRS. IAF, Tab 11 at 40-42. There is no evidence that
the appellant’s spouse appealed that decision to the Board. 8
Nevertheless, we have considered the issue but find that the appellant has
not proven that her spouse’s last 2 years of service were covered under CSRS.
The appellant argues that the agency changed her spouse’s classification to
permanent in 1981, and he was covered for that reason. PFR File, Tab 1. We
note that her spouse’s Standard Form 50 (SF-50) indicates that his most recent
position was a full-time, excepted appointment position under tenure group 1,
which includes employees whose appointment carries no restriction. IAF, Tab 11
at 16-17, 20; see 5 C.F.R. § 351.502. However, despite an indication on an
individual’s SF -50 that his temporary appointment was converted into an
appointment without limitation, the U.S. Court of Appeals for the Federal Circuit
has found that an individual’s service is not covered under CSRS when the
SF-50s describing that service indicate that the individual was not subject to
CSRS and that he received retirement pay in accordance with a collective
bargaining agreement. See, e.g., Rosete v. Office of Personnel Management ,
48 F.3d 514, 519-20 (Fed. Cir. 1995); Lorica v. Office of Personnel Management ,
63 M.S.P.R. 253, 255-56 (1994), aff’d, 66 F.3d 346 (Fed. Cir. 1995) (Table);
Paderes v. Office of Personnel Management , 63 M.S.P.R. 642, 644-45 (1994),
aff’d, 61 F.3d 919 (Fed. Cir. 1995) (Table); Reyes v. Office of Personnel
Management, 60 M.S.P.R. 172, 174-75 (1993), aff’d, 29 F.3d 645 (Fed. Cir.
1994) (Table); see also Quiocson v. Office of Personnel Management , 490 F.3d
1358, 1360 (Fed. Cir. 2007) (finding that receipt of benefits under a non-CSRS
plan indicated that an individual’s service was not covered under the CSRA).
Such is the case here: the retirement system code designation on her spouse’s
SF-50s was consistently “5,” indicating retirement coverage other than CSRS, and
her spouse received benefits under a collective bargaining agreement and the
FEPI. IAF, Tab 11 at 16-17, 20, 84. Furthermore, the fact that deductions were
not actually withheld from pay also weighs against a finding of coverage, and the
appellant does not dispute that this did not occur. PFR File, Tab 1 at 7; see
Paderes, 63 M.S.P.R. at 645; Lorica, 63 M.S.P.R. at 256. Thus, we find that the9
appellant has failed to carry her burden of showing that her spouse’s service was
covered by CSRS, and she is therefore not entitled to a survivor annuity.
5 U.S.C. § 8333(b).
In making this finding, we have considered the appellant’s arguments and
find them without merit. The appellant asserts that her spouse’s failure to make
deposits into the CSRS was sanctioned by 5 C.F.R. § 831.303(a) under its waiver
provision and that the deposits were deemed to have been paid when the agency
classified him as a full-time worker and thus subject to CSRS in 1981. PFR File,
Tab 1 at 7; IAF, Tab 11 at 21. The Federal Circuit has explained that 5 C.F.R.
§ 831.303(a) does not alter the definition of covered service or convert creditable
service into covered service. See Lledo, 886 F.3d at 1214. Rather, this regulation
permits those already covered by the CSRA to include certain creditable service
in calculating their annuity. Id. Thus, 5 C.F.R. § 831.303(a) is not applicable to
the appellant’s spouse, who did not meet the covered service requirement of
5 U.S.C. § 8333(b) for the reasons stated above.
In addition, the appellant argues that the requirement under 5 U.S.C.
§ 8333(b) of 1-out-of-2 years of CSRS coverage does not apply to her spouse
because he retired due to disability. PFR File, Tab 1 at 11. Although the
appellant is correct that the 1-out-of-2 rule does not apply when a separation is
due to disability, the Navy’s characterization of her spouse’s separation is
immaterial. There is no indication that the appellant’s spouse was awarded
disability retirement under CSRS, and, moreover, he would have been ineligible
for such a retirement because he did not become disabled while serving in a
position covered under CSRS. See 5 C.F.R. § 831.1203(a)(2). Accordingly, we
find that OPM properly found that the appellant is not entitled to survivor annuity
benefits.10
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).
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.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.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. 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 | Resumadero_Lynda_d_SF-0831-22-0093-I-1__Final_Order.pdf | 2024-05-07 | LYNDA DE SAN JUAN RESUMADERO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-22-0093-I-1, May 7, 2024 | SF-0831-22-0093-I-1 | NP |
1,536 | https://www.mspb.gov/decisions/nonprecedential/Le_Van_N_SF-844E-19-0097-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VAN N. LE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-19-0097-I-1
DATE: May 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Henry E. Leinen , Pacific Grove, California, for the appellant.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
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
denying his application for disability retirement. On petition for review, the
appellant disputes the administrative judge’s finding that he does not meet the
eligibility requirements for the benefit he seeks. Generally, we grant petitions
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).
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 | Le_Van_N_SF-844E-19-0097-I-1__Final_Order.pdf | 2024-05-07 | VAN N. LE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-19-0097-I-1, May 7, 2024 | SF-844E-19-0097-I-1 | NP |
1,537 | https://www.mspb.gov/decisions/nonprecedential/Cook_David_A_AT-844E-19-0183-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID A. COOK,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-19-0183-I-1
DATE: May 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin A. Graham , Esquire, Liberty, Missouri, for the appellant.
Albert Pete Alston, Jr. , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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). 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 find that the appellant failed to show that his medical conditions
caused a deficiency in his attendance or conduct, we AFFIRM the initial decision.
On petition for review, the appellant contends that the administrative judge
failed to consider treatment notes, which, he asserts, show that his psychological
conditions contributed to his documented performance deficiencies. Petition for
Review (PFR) File, Tab 1 at 13; Initial Appeal File (IAF), Tab 6 at 86-92,
132-34. He further contends that the administrative judge failed to give
appropriate weight to the impact that his physical conditions, such as his neck and
back issues, had on his job performance, and he avers that these conditions
caused him to miss work frequently. PFR File, Tab 1 at 7, 13-15.
After considering the appellant’s arguments on review and reviewing the
record, we agree with the administrative judge that the appellant failed to show
that his medical conditions caused a deficiency in his performance. IAF, Tab 19,
Initial Decision (ID) at 6-10; see Henderson v. Office of Personnel Management ,
117 M.S.P.R. 313, ¶¶ 16, 19 (2012) (setting forth the framework to analyze a
disability retirement claim under the Civil Service Retirement System (CSRS));
see also Jackson v. Office of Personnel Management , 118 M.S.P.R. 6, ¶¶ 7-8
(2012) (finding that the framework to analyze a disability retirement claim is the2
same under CSRS and FERS); 5 C.F.R. § 844.103(a)(2).2 Although the
administrative judge did not explicitly discuss the treatment notes that the
appellant references, IAF, Tab 6 at 132-34, an administrative judge’s failure to
mention all of the evidence in the record does not mean that he did not consider it
in reaching his 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, neither the treatment notes nor the appellant’s testimony clearly
explained how the appellant’s psychological conditions caused his documented
performance deficiencies. IAF, Tab 6 at 86-92, 132-34; see Marucci v. Office of
Personnel Management , 89 M.S.P.R. 442, ¶ 8 (2001) (explaining that disability
determinations based on mental illness often depend on whether the record
contains a reasoned explanation of how the appellant’s psychological condition
disables the employee from performing specific job duties).
In addition, we are not persuaded by the appellant’s assertion that the
administrative judge failed to appropriately consider the impact that his physical
conditions, such as his neck and back issues, had on his job performance. PFR
File, Tab 1 at 13-14. As set forth in the initial decision, the record is devoid of
any medical documentation indicating that the appellant was ever placed on any
work restriction, such as light duty. ID at 9. To this end, none of the treatment
notes in the record indicate that the appellant was physically unable to perform
his job functions. See Anderson v. Office of Personnel Management , 96 M.S.P.R.
299, ¶ 16 (2004) (explaining that a doctor’s conclusion that an employee is
disabled is persuasive only if the physician explains how the medical condition
affects the employee’s specific work requirements), aff’d, 120 F. App’x 320 (Fed.
2 Although the appellant applied for disability retirement under FERS, the initial
decision cited a regulatory provision regarding the requirements for disability
retirement under CSRS. ID at 3 (citing 5 C.F.R. § 831.1203(a)(2)). However, because
the relevant regulatory provisions under either system are nearly identical, compare
5 C.F.R. § 831.1203(a)(2), with 5 C.F.R. § 844.103(a)(2), this misstatement is
immaterial to the outcome of this appeal, 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). 3
Cir. 2005). Moreover, we agree with the administrative judge that the other
evidence in the record, to include the appellant’s testimony, also failed to make
such a showing. ID at 11. To the extent the appellant contends on review that his
pain impacted his job performance, the record suggests that his pain levels may
have been manageable with medication but that he rarely took such medication.
E.g., IAF, Tab 6 at 139, 171; see Confer v. Office of Personnel Management ,
111 M.S.P.R. 419, ¶ 21 (2009) (explaining that, to prove entitlement to disability
retirement, an applicant must show that the medical condition at issue cannot be
controlled by medication or other reasonable means).
Last, the appellant asserts that his medical conditions caused him to miss
work frequently. PFR File, Tab 1 at 7. As set forth in the initial decision, an
appellant may establish entitlement to a disability retirement under FERS by
showing by preponderant evidence that his medical conditions caused a
deficiency in either his attendance or his conduct. ID at 3; see Henderson,
117 M.S.P.R. 313, ¶ 16. Because the administrative judge did not render explicit
findings in this regard, we hereby supplement the initial decision to find that the
appellant failed to show by preponderant evidence that his medical conditions
prevented him from being regular in attendance or caused him to act
inappropriately. See Henderson, 117 M.S.P.R. 313, ¶ 16. To this end, the record
is devoid of any attendance records or leave requests, and it provides no clear
indication of how much work the appellant missed as a result of his medical
issues. IAF, Tab 6 at 70, Tab 18, Hearing Recording (HR) at 17:30-19:00
(testimony of the appellant’s coworker, file 1); 1:00:07-1:00:48, 1:19:17-1:19:58
(testimony of the appellant, file 1); 26:02-27:11 (testimony of the appellant’s
supervisor, file 2). Moreover, both the appellant and the appellant’s supervisor
explicitly testified that the appellant never had any conduct or behavioral issues.
HR at 1:20:14-1:20:29 (testimony of the appellant, file 1); 25:30-25:58
(testimony of the appellant’s supervisor, file 2). Thus, the appellant failed to
show that his medical conditions caused a deficiency in his performance,4
attendance, or conduct, or that they were incompatible with useful and efficient
service or retention in his position. See Henderson, 117 M.S.P.R. 313, ¶ 16; see
also Jackson, 118 M.S.P.R. 6, ¶¶ 7-8.
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.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.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. 1510.8
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 | Cook_David_A_AT-844E-19-0183-I-1__Final_Order.pdf | 2024-05-07 | DAVID A. COOK v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-19-0183-I-1, May 7, 2024 | AT-844E-19-0183-I-1 | NP |
1,538 | https://www.mspb.gov/decisions/nonprecedential/Pak_Jae_I_CH-1221-18-0227-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAE I. PAK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-18-0227-W-1
DATE: May 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dylan Kosson , Chicago, Illinois, for the appellant.
Lori Liddell , Tomah, Wisconsin, for the appellant.
Fallon Booth , Esquire, Detroit, Michigan, for the agency.
Gina M. Ozelie , Esquire, Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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.
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).
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).
BACKGROUND
The appellant was a GS-09 General Engineer for the agency’s Tomah,
Wisconsin Veterans Administration Medical Center (VAMC). Initial Appeal File
(IAF), Tab 5 at 15, 141. On June 20, 2017, the agency terminated the appellant’s
employment for postappointment reasons during his competitive service initial
probationary period. Id. at 15-18. On February 22, 2018, the appellant filed an
IRA appeal with the Board challenging his termination. IAF, Tab 1. The
administrative judge issued an order notifying the appellant of how to prove
Board jurisdiction over an IRA appeal, including exhaustion of administrative
remedies before the Office of Special Counsel (OSC), and ordered him to file
evidence and argument on the issue. IAF, Tab 3.
After the parties responded, IAF, Tabs 5, 7-9, 12, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction, IAF,
Tab 15, Initial Decision (ID). The administrative judge found that the appellant
3
filed with OSC’s Disclosure Unit on August 27, 2017 (Case Number:
DI-17-5290), and with OSC’s Complaints Examining Unit on September 13, 2017
(Case Number: MA-17-5567). ID at 4. He found that the appellant’s filing with
the Disclosure Unit was insufficient to satisfy the exhaustion requirement because
the Disclosure Unit does not review allegations of prohibited personnel practices.
ID at 12-15. He also found that the appellant’s filings with the Complaints
Examining Unit were insufficient to satisfy the exhaustion requirement because
the only disclosures that the appellant exhausted pertained to alleged violations of
laws covered under 5 U.S.C. § 2302(b)(1). ID at 13-15. Finally, the
administrative judge found that, to the extent that the appellant was claiming
retaliation for equal employment opportunity (EEO) activity, the Board generally
lacks IRA jurisdiction over such matters, and there was no evidence that the
appellant’s EEO activity sought to remedy a violation of 5 U.S.C. § 2302(b)(8)
such that a limited exception might apply. ID at 15-16.
The appellant has filed a petition for review, submitting for the first time
three additional documents that he claims prove that he exhausted his
administrative remedies. Petition for Review (PFR) File, Tab 1. The agency has
filed a response, arguing that the documents are neither new nor material.
PFR File, Tab 4.
ANALYSIS
To establish jurisdiction over an IRA appeal, an appellant must, among
other things, prove by preponderant evidence that he exhausted his administrative
remedies before OSC. Yunus v. Department of Veterans Affairs , 242 F.3d 1367,
1371 (Fed. Cir. 2001); Rusin v. Department of the Treasury , 92 M.S.P.R. 298,
¶ 12 (2002); see 5 U.S.C. §§ 1214(a)(3), 1221(a). 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.
4
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
issue in this appeal is whether the appellant exhausted his administrative remedies
with respect to any activity that may have been protected under 5 U.S.C.
§ 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C. § 1221(a).
On petition for review, the appellant has filed copies of two facsimile
transmissions related to his September 13, 2017 whistleblower complaint, which
he submitted to OSC on September 14, 2017 and September 22, 2017,
respectively. PFR File, Tab 1 at 6-10. In the September 14, 2017 transmission,
the appellant recounted an incident in which he got into a disagreement with his
coworkers and supervisors about whether an allegedly troublesome subcontractor
employee should be excluded from agency premises. Id. at 8-9. He also appeared
to challenge the merits of his termination. Id. at 9. We find that nothing in this
facsimile relates to the protected activity that the appellant identified as the basis
of his whistleblower claim. IAF, Tab 7 at 5-12. In the September 22, 2017
transmission, the appellant described the termination process and alleged that his
termination was based on his age and race, and that it violated the applicable
collective bargaining agreement. PFR File, Tab 1 at 12-15. None of these
matters describe a protected disclosure or a disclosure that the appellant
identified as the basis for his whistleblower claim. IAF, Tab 7 at 5-12, Tab 8
at 7; see Nogales v. Department of the Treasury , 63 M.S.P.R. 460, 464 (1994)
5
(finding that disclosures about discrimination based on age or race are excluded
from coverage under 5 U.S.C. § 2302(b)(8)).
The appellant also alleged to OSC that he “ spoke out frequently against the
chronic waste, mismanagement and even fraudulent practices happening in
Tomah VAMC capital management system,” “spoke out at numerous interactions
with superiors, managers, and peers if [he] saw abuse, gross mismanagement,
waste and potential fraud,” and “ha[s] never been shied away from speaking out
on what seemed waste and abuse of the capital project such as exacting the
[Federal Acquisition Regulations and Veterans Administration Acquisition
Regulations] on the limits of the contract and strict guidance of the Construction
Contractor.” PFR File, Tab 1 at 13-15. Although these allegations generally
cover what might constitute protected activity under 5 U.S.C. § 2302(b)(8),
including some of the activity that the appellant identified as the basis for his
whistleblower claim, we find that they are too vague to satisfy the exhaustion
requirement. IAF, Tab 7 at 5-12, Tab 8 at 7. We find that the appellant did not
provide OSC with a sufficient basis to pursue an investigation and therefore
failed to exhaust his administrative remedies prior to filing his Board appeal.2
See Mintzmyer v. Department of the Interior , 84 F.3d 419, 422 (Fed. Cir. 1996).
The appellant has also filed a copy of an OSC closeout letter dated
May 28, 2018. PFR File, Tab 1 at 17-18. However, this letter is from OSC’s
Disclosure Unit and has no bearing on the issue of exhaustion. See Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 16 (2011).
2 Although the appellant has not raised the issue on review, we have evaluated the
OSC-related documents that he submitted below, and we agree with the administrative
judge’s evaluation of them. ID at 13-15; IAF, Tab 1 at 13-29
6
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.
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 any
8
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
9
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.
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. | Pak_Jae_I_CH-1221-18-0227-W-1__Final_Order.pdf | 2024-05-07 | JAE I. PAK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-18-0227-W-1, May 7, 2024 | CH-1221-18-0227-W-1 | NP |
1,539 | https://www.mspb.gov/decisions/nonprecedential/Baker_Micah_T_AT-315H-23-0011-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICAH BAKER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-315H-23-0011-I-1
DATE: May 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan V. Edmunds, Esquire, Ponte Vedra Beach, Florida, for the appellant.
Brittany Forrester , Esquire, Ladera Ranch, California, for the appellant.
Brian M Anderson , Esquire, Aberdeen Proving Ground, Maryland, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant again argues that he was terminated based on
conditions arising before appointment, and that the agency failed to comply with
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 procedural requirements of 5 C.F.R. § 315.805. 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 | Baker_Micah_T_AT-315H-23-0011-I-1__Final_Order.pdf | 2024-05-07 | MICAH BAKER v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-315H-23-0011-I-1, May 7, 2024 | AT-315H-23-0011-I-1 | NP |
1,540 | https://www.mspb.gov/decisions/nonprecedential/Walker_Angel_D_DA-0752-20-0452-I-2__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGEL D. WALKER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-20-0452-I-2
DATE: May 7, 2024
THIS ORDER IS NONPRECEDENTIAL1
Amanda Moreno , Esquire, Stephen Goldenzweig , Esquire, and Michael
Kleinman , Esquire, Houston, Texas, for the appellant.
Everett F. Yates , Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal for lack of jurisdiction. For the reasons discussed
below, we GRANT her petition for review, VACATE the initial decision, and
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
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).
2
BACKGROUND
The appellant was employed as an Office Automation Assistant at the
agency’s William Beaumont Army Medical Center. Walker v. Department of the
Army, MSPB Docket No. DA-0752-20-0452-I-1, Initial Appeal File (IAF), Tab 17
at 14. Effective June 18, 2020, the agency removed her based on a charge of
inability to maintain a regular work schedule and absence without leave. Id. On
July 16, 2020, the appellant, who was represented at the time, filed the instant
appeal of her removal. IAF, Tab 1 at 3-4. On July 29, 2020, the parties entered
into a settlement agreement to resolve an Equal Employment Opportunity (EEO)
complaint filed by the appellant, which was pending before the Equal
Employment Opportunity Commission (EEOC) and identified as Agency No.
ARBLISS17APR01429 and EEOC No. 450-2020-00076X. Walker v. Department
of the Army, MSPB Docket No. DA-0752-20-0452-I-2, Appeal File (I-2 AF),
Tab 18 at 8-10.2 In that agreement, the agency agreed to pay the appellant’s
attorney $65,000 and to assist her with medical retirement. Id. at 8. The
appellant agreed to withdraw her EEO complaint and waive “any and all further
or additional relief, remedies, and causes of action of any and all kinds against
the Agency,” but not “future claims that arise after the date of [the] [a]greement.”
Id. at 9.3 On April 18, 2022, the agency filed a motion to dismiss the instant
appeal pursuant to the waiver provision because the appellant’s removal had
become effective prior to the date of the EEO settlement agreement. Id. at 4-5.
The administrative judge issued an order to show cause that advised the
appellant that she may have waived her right to pursue the instant appeal and set
2 The agency submitted a list of accepted claims in the appellant’s EEO complaint,
showing that the appellant did not amend her EEO complaint to include her removal.
I-2 AF, Tab 18 at 11-12.
3 The appellant’s initial appeal was dismissed without prejudice to enable the appellant
to focus on her medical issues and a potential disability retirement application. IAF,
Tab 30, Initial Decision at 1-2. Just prior to the dismissal, a new agency counsel was
added to the appeal. IAF, Tab 27. Upon refiling her appeal, the appellant also retained
new counsel. I-2 AF, Tab 5.
3
deadlines for the parties to respond to the order. I-2 AF, Tab 22. The appellant
responded, arguing, among other things, that the settlement agreement did not
contain a global release and that the parties intended only to settle her EEO
complaint. I-2 AF, Tab 24 at 4-6. The agency then moved to withdraw its
motion, stating that “it had been the Agency’s intent only to settle the EEO case
and not for it to be a global settlement.” I-2 AF, Tab 26 at 4. Without holding a
hearing, the administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction based on the waiver contained in the EEOC settlement
agreement. I-2 AF, Tab 30, Initial Decision (I-2 ID) at 1, 5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant reargues that the waiver provision in her EEO
settlement agreement does not bar the instant removal appeal, which was pending
when the agreement was executed, because the parties only intended to settle the
EEO complaint and not her instant appeal. PFR File, Tab 1 at 7. The
administrative judge found that the waiver language in the agreement is
unambiguous. I-2 ID at 5-6. She considered the parties’ assertions that they did
not intend to waive the appellant’s removal appeal. Id. Nevertheless, she found
that, because she gave the parties an opportunity to amend the agreement and they
did not do so, the appellant had waived her right to challenge her removal before
the Board. I-2 ID at 5-6. On review, the agency counsel restates that “the
original agency counsel intended only to settle the EEOC case with [the
settlement agreement],” but ultimately he agrees with the administrative judge
that the waiver language is unambiguous, and, therefore, it is “inappropriate” to
consider evidence of the parties’ intent. PFR File, Tab 3 at 6-7.
It is well settled that the Board may review a settlement agreement reached
outside of a Board proceeding to determine its effect on a Board appeal and any
4
waiver of Board appeal rights. E.g., Lee v. U.S. Postal Service, 111 M.S.P.R.
551, ¶ 4 (2009), aff’d per curiam , 367 F. App’x 137 (Fed. Cir. 2010); Swidecki v.
U.S. Postal Service , 101 M.S.P.R. 110, ¶ 7 (2006). The appellant may challenge
the validity of a settlement agreement if she believes that the agreement was
unlawful, involuntary, or resulted from fraud or mutual mistake.
Lee, 111 M.S.P.R. 551, ¶ 4. The appellant may also challenge the enforceability
of any waiver of Board appeal rights. Id. Such a waiver is enforceable if its
terms are comprehensive, freely made, and fair, and execution of the waiver did
not result from agency duress or bad faith. Id.
We agree with the administrative judge that the language of the waiver
provision at issue here is unambiguous. The words of the agreement are of
paramount importance in determining the parties’ intent when they contracted,
and parol or extrinsic evidence will be considered only if the agreement is
ambiguous. Id., ¶ 6; see Dunn v. Department of the Army , 100 M.S.P.R. 89, ¶ 9
(2005) (noting that the Board will not imply a term in an unambiguous
agreement). Ambiguity exists if the settlement agreement’s terms are reasonably
susceptible to more than one interpretation. Lee, 111 M.S.P.R. 551, ¶ 6. When
the parties’ intended meaning is not apparent from the face of the agreement, it is
appropriate to examine extrinsic evidence of intent. Id.; Brown v. Department of
the Interior, 86 M.S.P.R. 546, ¶ 17 (2000).
The settlement agreement stated, as relevant here:
Complainant will withdraw the aforementioned matter.
Complainant waives and releases any and all further or additional
relief, remedies, and causes of action of any and all kinds against
the Agency and any and all of its officers, managers, supervisors,
and employees. Complainant hereby agrees to a settlement of the
above-styled matter. This release does not include future claims
that arise after the date of this Agreement.
I-2 AF, Tab 18 at 9. We agree with the administrative judge that the language of
the agreement is clear that the settlement extends beyond the issues raised in the
appellant’s EEO complaint and encompasses her removal since it is a cause of
5
action that arose on June 18, 2020, prior to the July 29, 2020 effective date of the
settlement agreement. IAF, Tab 17 at 14, Tab 18 at 9-10. To the extent that the
appellant argues that the provision in question is ambiguous, she has not shown
that the terms are susceptible to more than one interpretation. See Lee,
111 M.S.P.R. 551, ¶ 7 (finding that, pursuant to the settlement agreement’s
release “from all claims,” the appellant waived his right to appeal his constructive
suspension to the Board).
However, since the parties appear to agree that they signed the agreement
under the incorrect assumption that they were not waiving the appellant’s right to
pursue the instant removal appeal, we find that the parties are essentially alleging
mutual mistake. A settlement agreement may be set aside on the basis of mutual
mistake of fact if there is a shared, mistaken belief of the parties regarding a
material assumption of fact underlying their agreement. Vance v. Department of
the Interior, 114 M.S.P.R. 679, ¶¶ 12, 14, 16 (2010) (setting aside a settlement
agreement when it was premised on the mutual mistake of fact that it was
possible to give the appellant a clean employment record). Similarly, a
settlement agreement must also be set aside if it is tainted with invalidity by a
mutual mistake of law under which both parties acted. Potter v. Department of
Veterans Affairs , 111 M.S.P.R. 374, ¶ 9 (2009); Adkins v. U.S. Postal Service ,
86 M.S.P.R. 671, ¶¶ 9-10 (2000) (setting aside a settlement agreement due to
mutual mistake of law because the parties believed that the agreement would be
entered into the Board’s record for enforcement purposes, but the Board was
unable to do so).
An appellant’s waiver of any causes of action against the agency is a
material term of a settlement agreement. See Gill v. Department of Veterans
Affairs, 85 M.S.P.R. 541, ¶ 5 (2000) (finding a draft settlement agreement that
contained an exception to a general waiver of claims constituted a material
change to a draft without such an exception). Thus, we need not decide whether
the parties’ mistake was a mutual mistake of fact or mutual mistake of law
6
because we decline to enforce the provision waiving the appellant’s Board appeal
right.
Here, the parties’ settlement agreement was reached in another forum, i.e.,
the EEOC. The Board does not have authority to invalidate a settlement
agreement reached in another forum. See Lee, 111 M.S.P.R. 551, ¶ 4 n.2. The
agreement provides that it should be entered into the record of the EEOC and that
the EEOC retains jurisdiction for purposes of enforcement. I-2 AF, Tab 18 at 10.
Accordingly, because the Board does not have the authority to invalidate the
terms of the EEOC settlement agreement, we do not do so. Nevertheless, since it
is undisputed that the waiver of the appellant’s Board appeal was a mutual
mistake, we find that the appellant’s waiver of her right to appeal her removal
cannot be enforced before the Board. Accordingly, we vacate the initial decision
and remand this matter to the regional office for a full adjudication.4
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.
4 The appellant also reasserts that the agency breached the settlement agreement. PFR
File, Tab 1 at 7-8. Allegations of breach are a matter of enforcement. See Lopez v. U.S.
Postal Service, 71 M.S.P.R. 461, 463 (1996). The settlement agreement between the
parties provides in ¶ 9 that the EEOC retains jurisdiction for purposes of enforcing
compliance with the terms of the agreement. IAF, Tab 18 at 10. Therefore, any
allegations of breach must be presented to the EEOC. | Walker_Angel_D_DA-0752-20-0452-I-2__Remand_Order.pdf | 2024-05-07 | ANGEL D. WALKER v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-20-0452-I-2, May 7, 2024 | DA-0752-20-0452-I-2 | NP |
1,541 | https://www.mspb.gov/decisions/nonprecedential/Davis_Ronald_A_DC-1221-17-0350-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD A. DAVIS,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-1221-17-0350-W-1
DATE: May 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald A. Davis , Baltimore, Maryland, pro se.
Avis McAllister , Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision that
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;
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
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).
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. Because we find that the
administrative judge erroneously found that the appellant made protected
disclosures, we VACATE the initial decision and DENY the appellant’s request
for corrective action.
BACKGROUND
The appellant worked for the agency as a Financial Management Specialist
at Joint Base Andrews. Initial Appeal File (IAF), Tab 1 at 2. In June 2016, the
appellant filed a complaint with the Office of Special Counsel (OSC) alleging
that, in reprisal for making protected disclosures, the agency denied him
opportunities for training in 2015 and did not select him for two positions in
2016. Id. at 8, 13-14. The disclosures included a September 15, 2014 email from
the appellant to his second-level supervisor alleging that his first -level supervisor
violated the Merit Systems Principles on September 12, 2014, when he said aloud
in front of the office that the appellant had a work assignment due by 8 a.m. the
following Monday. IAF, Tab 1 at 13-14, Tab 4 at 9-11. The second disclosure
concerned an October 14, 2015 email from the appellant to his third -level
supervisor claiming that his second -level supervisor violated his privacy rights by
discussing his use of sick leave while on speaker phone with his team leader
present. IAF, Tab 1 at 14, Tab 4 at 12-13. In December 2016, OSC closed the
investigation into the appellant’s complaint with no further action, and this IRA
appeal to the Board followed. IAF, Tab 1 at 2-7, 20-22. 2
After finding jurisdiction over the appeal and holding a hearing, the
administrative judge issued an initial decision denying the appellant’s request for
corrective action. IAF, Tab 40, Initial Decision (ID). The administrative judge
concluded that the appellant met his burden of proving that he exhausted his
administrative remedies with OSC, made protected whistleblowing disclosures
when sending the emails to supervisors on September 15, 2014, and October 14,
2015, and such disclosures were a contributing factor in the agency’s decisions to
deny him training and not select him for the positions at issue. ID at 3-5.
However, the administrative judge further found that the agency proved by clear
and convincing evidence that it would have taken these actions against the
appellant in the absence of his protected disclosures. ID at 5-10. The appellant
has filed a petition for review. Petition for Review (PFR) File, Tab 1. The
agency has responded in opposition, and the appellant has filed a reply. PFR
File, Tabs 4-5.
ANALYSIS
In the absence of an action directly appealable to the Board, only
allegations of protected disclosures and activity, along with personnel actions,
that an appellant first raises and exhausts with OSC may be considered by the
Board in an IRA appeal.2 See Rebstock Consolidation v. Department of
Homeland Security , 122 M.S.P.R. 661, ¶ 9 (2015); Mason v. Department of
Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). In order to prevail on the
merits of an IRA appeal before the Board, an appellant must prove by
preponderant evidence that he 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 the disclosure or protected activity was a
contributing factor in the agency’s decision to take or fail to take a personnel
action outlined in 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. § 1221(e); Salerno v.
2 The appellant does not allege an action directly appealable to the Board in this appeal.
See 5 U.S.C. §§ 4303, 7512. 3
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). If this burden is met,
the Board must order corrective action unless the agency establishes by clear and
convincing evidence that it would have taken the same personnel action despite
the appellant making the protected disclosure or engaging in the protected
activity. 5 U.S.C. § 1221(e)(2); Carr v. Social Security Administration , 185 F.3d
1318, 1322-23 (Fed. Cir. 1999); Aquino v. Department of Homeland Security ,
121 M.S.P.R. 35, ¶ 10 (2014).
The administrative judge properly determined that the appellant exhausted his
administrative remedies with OSC.
In order for the Board to have jurisdiction over an IRA appeal, the
appellant, amongst other requirements, must first prove by preponderant evidence
that he exhausted his administrative remedies regarding the allegation with OSC.
Salerno, 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1201.57(c)(1). The purpose of this
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). The Whistleblower Protection
Enhancement Act of 2012 provides that, if OSC finds that there is a substantial
likelihood that the information it received discloses a violation of the Act, it
“shall transmit the information to the head of the agency involved for
investigation and report . . . .” Id. (making this finding based on the same
language in the prior Whistleblower Protection Act); see 5 U.S.C. § 1213(b), (c).
These inquiries by OSC, and their transmittal to agencies for remedial action, are
a major component of OSC’s work. Ward, 981 F.2d at 526.
The Board may consider only those disclosures of information and
personnel actions that the appellant raised before OSC. Mason, 116 M.S.P.R.
135, ¶ 8. 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. The
test of the sufficiency of an appellant’s charge of reprisal for whistleblowing to4
OSC is the statement that he makes in the complaint requesting corrective action,
not his post hoc characterization of those statements . Id., ¶ 11. 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. Id.
During the adjudication of this appeal before the administrative judge, and
then again on review, the appellant made vague assertions that he included in his
OSC complaint at issue other supposed protected activity, his perceived
whistleblower status, and retaliatory personnel actions. IAF, Tab 19 at 4, 6;
Hearing Compact Disc (HCD) 1 (testimony of the appellant); PFR File, Tab 1
at 15, 22, 24-25. However, as the administrative judge correctly determined, the
appellant only proved that he exhausted administrative remedies with OSC prior
to filing the instant IRA appeal regarding the emails that he sent his supervisors
on September 15, 2014, and October 14, 2015, and the denial of training and
nonselections as outlined above. IAF, Tab 18 at 2; ID at 3-4. As a result, the
Board has no jurisdiction to consider any additional allegations of reprisal that
the appellant puts forth in this appeal. See Boechler v. Department of the
Interior, 109 M.S.P.R. 638, ¶ 13 (2008) (concluding that the Board lacked
jurisdiction in an IRA appeal when the appellant failed to prove that he exhausted
administrative remedies with OSC over the alleged claims), aff’d, 328 F. App’x.
660 (Fed. Cir. 2009) (Table).
The appellant failed to meet his burden of proving that he made a protected
disclosure.
Protected whistleblowing takes place 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. 5 U.S.C. § 2302(b)(8)(A);5
DeLeonardo v. Equal Employment Opportunity Commission , 103 M.S.P.R. 301,
¶ 6 (2006). The appellant need not prove that the condition disclosed actually
established a violation of law, rule, or regulation; gross mismanagement of funds;
a gross waste of funds; an abuse of authority; or a substantial and specific danger
to public health or safety. Peterson v. Department of Veterans Affairs ,
116 M.S.P.R. 113, ¶ 11 (2011). The test for determining whether the appellant
had a reasonable belief that his disclosure was 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 of the
Government evidence one of the categories of wrongdoing noted above. Id.
The appellant’s first disclosure is not protected.
The appellant claimed that the first disclosure, his September 15, 2014
email that he sent to his second-level supervisor, is protected because it identifies
violations of the Merit System Principles codified at 5 U.S.C. § 2301. IAF, Tab 1
at 13-14, Tab 4 at 4, 9-11. According to the appellant, the supposed wrongdoing
exposed is how his first-level supervisor acted unprofessionally and advised him
loudly in the workplace of the due date of a single assignment tasked to him.
IAF, Tab 1 at 13-14, Tab 4 at 4, 9-11. On the day in question, the appellant states
that, as he was leaving the office for the week, his first-level supervisor said to
him, “I want that report by 8 o’clock on Monday morning,” then stated words to
the effect of, “when we tell you something, you need to do it.” IAF, Tab 4 at 10.
The appellant was aware of what assignment was at issue and that it was indeed
to be completed as informed. Id. at 9-11; HCD 1 (testimony of the appellant).
There is no evidence of any confidential personnel matter discussed in the
presence of others. There was no criticism or critique of the appellant’s work;
rather, just a reminder of a due date and an axiomatic statement that, absent
circumstances not present here, employees need to comply with supervisory
instructions. IAF, Tab 4 at 10. It is the supervisor’s responsibility to remind6
employees of assignment due dates.3 The Merit System Principles outlined at
5 U.S.C. § 2301 set the general guidelines for Government agencies in the
management of personnel, providing for the fair and equitable treatment of
employees without regard to prohibited reasons, and setting other aspirational
standards in areas such as recruitment, pay, retention, performance, and training.
The supposed offense alleged by the appellant is at best only tangentially related
to the standards set forth in section 2301.
The appellant certainly disagreed with his supervisor’s handling of this
situation. At most, however, his purported disclosure involved his questioning of
a management action that is merely debatable or nominally unprofessional. It is
well-settled that, with nothing more, disclosures of this type of behavior are not
protected. The whistleblower protection statutes were not intended to turn every
failure to exercise perfect management behavior into the subject of a
whistleblowing complaint. See Frederick v. Department of Justice , 73 F.3d 349,
353 (Fed. Cir. 1996) (finding that, if supervisors fear that every trivial lapse in
their own behavior will be the subject of a whistleblowing complaint, they will be
deterred from performing their duties). In sum, with his almost four decades of
Government service, we find that the appellant could not have reasonably
believed that he was exposing wrongdoing as defined in the whistleblower
protection statutes when he advised his second-level supervisor that his first-level
supervisor reminded him in front of others of the due date of an assignment
tasked to him.
The appellant’s second disclosure is not protected.
Moving to the other disclosure, in his October 14, 2015 email to his
third-level supervisor, the appellant alleged that his second-level supervisor
3 It is commonplace in the Federal government for employees within an office to have
access to the deadlines of projects assigned to others. For example, a case tracking
system often readily indicates when briefs or other legal documents are due, and a
project management application often shows when reports are due. 7
violated his privacy rights by discussing his use of sick leave while on speaker
phone with his team leader present. IAF, Tab 1 at 14, Tab 4 at 4-5, 12-13.
During this conversation, the appellant’s second-level supervisor called the
appellant in the appellant’s team leader’s presence to ascertain the appellant’s
duty status, as they were not aware that he was on sick leave.4 IAF, Tab 4
at 12-13. After the appellant informed his second-level supervisor that he was
out for the day, the second-level supervisor asked if the appellant planned to be at
work the following day and then instructed the appellant to inform the office of
his absence. Id.
There is no evidence that the appellant’s second-level supervisor discussed
any confidential health or personnel matters on this call. While an employee
might have a privacy interest in not having his usage of sick leave shared with
those without a need to know, as the appellant conceded, his supervisors and team
leader bore the responsibility to know his work status. HCD 1 (testimony of the
appellant). The appellant also testified that he was pleased with how the office
procedures changed shortly after this incident because employees now have to
notify their team leader when they are requesting sick leave, which weighs
against him reasonably believing that it was improper for his supervisor to
discuss his use of sick leave in the presence of his team leader. Id. Thus, we find
that the appellant did not reasonably believe that he disclosed 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.
For the forgoing reasons, the appellant’s disclosures at issue in this appeal
were not protected, meaning his request for corrective action must be denied on
these grounds. See Kleckner v. Department of Veterans Affairs , 96 M.S.P.R. 331,
¶ 7 (2004) (denying the appellant’s request for corrective action in his IRA
appeal, as he did not prove by preponderant evidence that his disclosures were
4 Although the conversation took place on a speaker phone, there is no specific
allegation that another employee overheard the conversation. 8
protected). As such, we need not determine whether the appellant met his burden
of proving that such disclosures were a contributing factor to the contested
personnel actions or whether the agency proved by clear and convincing evidence
that it would have made the same decisions in the absence of the disclosures. See
Harvey v. Department of the Navy , 92 M.S.P.R. 51, ¶ 5 n.3 (2002) (holding that,
because the appellant did not prove his prima facie case of whistleblower reprisal,
there was no need to determine whether the agency met its clear and convincing
standard).
The appellant failed to raise any other basis to grant his petition for review.
On review, the appellant alleges that the administrative judge committed
various errors, such as denying his motions to compel and to sanction the agency
for not complying with discovery, unduly denying his request for witnesses to
testify at hearing, and acting inappropriately during the hearing. PFR File, Tab 1
at 4-6, 19-22. However, the purported rulings and evidence that the appellant
claims that he would have gained from his motions being granted and witnesses
approved have no impact on the dispositive finding that he failed to make a
protected disclosure. Notwithstanding, we have reviewed the record and
conclude that the denial of the appellant’s discovery-related motions was not an
error or abuse of discretion by the administrative judge. See Vores v. Department
of the Army, 109 M.S.P.R. 191, ¶ 14 (2008) (stating that administrative judges
have broad discretion in regulating discovery and, absent a showing of an abuse
of discretion, the Board will not find reversible error), aff’d, 324 F. App’x. 883
(Fed. Cir. 2009). Further, the denial of a number of the appellant’s requested
witnesses on relevance grounds was appropriate.5 See Miller v. Department of
Defense, 85 M.S.P.R. 310, ¶ 8 (2000) (outlining how an administrative judge has
wide discretion to control the proceedings, including authority to exclude
5 The administrative judge did approve six of the appellant’s requested witnesses to
testify at the hearing. IAF, Tab 28 at 2. 9
testimony she believes would be irrelevant or immaterial). Additionally, we see
no indication that the administrative judge acted improperly during the hearing.
Similarly, the appellant’s arguments on review regarding supposed errors in
the administrative judge’s credibility determinations and analysis of the agency’s
actions under the Carr factors need not be addressed further, as they are unrelated
to the overall conclusion that the appellant’s request for corrective action must be
denied due to his failure to make a protected disclosure. PFR File, Tab 1 at 6-19,
23-24; see, e.g., Cole v. Department of Veterans Affairs , 77 M.S.P.R. 434, 439
(1998) (holding that a remand was unnecessary, as the issues to be adjudicated by
the Board on review did not require credibility determinations); see also Buckler
v. Federal Retirement Thrift Investment Board , 73 M.S.P.R. 476, 496 (1997)
(holding that, because the appellant did not meet each of his merit requirements,
no consideration was necessary as to whether the agency showed by clear and
convincing evidence that it would have taken the same action despite the
appellant’s protected disclosure).
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
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
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. 11
(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: 12
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. 13
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.14 | Davis_Ronald_A_DC-1221-17-0350-W-1__Final_Order.pdf | 2024-05-07 | RONALD A. DAVIS v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-1221-17-0350-W-1, May 7, 2024 | DC-1221-17-0350-W-1 | NP |
1,542 | https://www.mspb.gov/decisions/nonprecedential/Church_Dale_W_SF-0752-18-0773-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-0752-18-0773-I-1
DATE: May 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
tephanie Bernstein , Esquire, and Tyler J. Sroufe , Esquire, Dallas, Texas,
for the appellant.
Sally A. Carter , Esquire, Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
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 was biased and colluded with the agency. 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
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).
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.
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 has 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 | Church_Dale_W_SF-0752-18-0773-I-1_Final_Order.pdf | 2024-05-07 | DALE W. CHURCH v. DEPARTMENT OF ENERGY, MSPB Docket No. SF-0752-18-0773-I-1, May 7, 2024 | SF-0752-18-0773-I-1 | NP |
1,543 | https://www.mspb.gov/decisions/nonprecedential/Lassiter_Johnnie_V_PH-0752-22-0291-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHNNIE VANCE LASSITER, JR.,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-0752-22-0291-I-1
DATE: May 7, 2024
THIS ORDER IS NONPRECEDENTIAL1
Randolph Elliott , Camp Hill, Pennsylvania, for the appellant.
Owen Hoover , Esquire, New Cumberland, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed by 3 days without good cause
shown. For the reasons set forth herein, we GRANT the appellant’s petition for
review, VACATE the initial decision, and REMAND the matter to the New York
Field Office for a hearing on the timeliness issue.
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).
ANALYSIS
The appellant argues that, because he had recently moved to a new address,
he did not receive the agency’s decision, which effected his removal on June 26,
2022, until July 5, 2022. Petition for Review (PFR) File, Tab 1 at 3-4; Initial
Appeal File (IAF), Tab 6 at 13-16. He asserts that the agency was aware of his
new address and had “corresponded with [him] multiple times this calendar year
[at] this new address.”2 PFR File, Tab 1 at 5.
If an appellant can establish a factual dispute as to whether he timely filed
his appeal and he requested a hearing, he is entitled to a timeliness hearing.
Nelson v. U.S. Postal Service , 88 M.S.P.R. 331, ¶ 5 (2001). Here, the appellant
requested a hearing on the matter. IAF, Tab 1 at 2. Additionally, the appellant’s
representative submitted, among other things, a statement made under penalty of
perjury asserting that the appellant had moved to a new address and, as a result,
had not received the agency’s decision letter until July 5, 2022, when his
representative emailed it to him. IAF, Tab 4 at 3. Given the circumstances, we
find that the appellant is entitled to a hearing on the timeliness issue.
2 The appellant provides additional documents with his petition for review, to include a
letter regarding where he has lived and various property lease documents. PFR File,
Tab 1 at 9-59. 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 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). In any event, these documents are
not material to the outcome 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).2
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.3 | Lassiter_Johnnie_V_PH-0752-22-0291-I-1__Remand_Order.pdf | 2024-05-07 | null | PH-0752-22-0291-I-1 | NP |
1,544 | https://www.mspb.gov/decisions/nonprecedential/Lewis_MarqueseDC-1221-16-0695-W-2__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARQUESE LEWIS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-16-0695-W-2
DATE: May 6, 2024
THIS ORDER IS NONPRECEDENTIAL1
David Fallon , Esquire, Albany, New York, for the appellant.
Elizabeth E. Pavlick , Esquire, and Lundi Shafiei , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND 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)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the initial decision’s analysis of the agency’s clear and
convincing burden but otherwise AFFIRM 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).
2
case to the Washington Regional Office for further adjudication in accordance
with this Remand Order.2
BACKGROUND
The appellant transferred from the Department of Transportation to the
agency’s Washington Headquarters Services (WHS) in November 2014 as a
GS-13 Strategic Communications Specialist. Lewis v. Department of Defense ,
MSPB Docket No. DC-1221-16-0695-W-1, Initial Appeal File (IAF), Tab 1 at 1,
Tab 7 at 75; Hearing Transcript (Oct. 16, 2017) (HT1) at 8-9 (testimony of the
appellant). The appellant worked for the WHS Corporate Communications
Division (CCD) from November 2014, until her June 2015 management-directed
reassignment to the Boards, Commissions, and Task Forces (BCTF) Support
Division. IAF, Tab 6 at 68-70, Tab 7 at 75.
In June 2015, the appellant filed a complaint with the Office of Special
Counsel (OSC) in which she alleged retaliation for whistleblowing. IAF, Tab 5
at 16-22. The appellant alleged that she made protected disclosures on or around
December 19, 2014, to the WHS Acting Deputy Director and, in January 2015, to
her first-line supervisor, A.D., that her former first-line supervisor, K.Y., engaged
in timecard falsification and that agency contractors falsified their time and
disregarded policies concerning work assignments. Id. at 16-22, 51-56 . The
appellant alleged that the agency took the following actions in retaliation for her
disclosures: (1) terminated her during her probationary period on April 30,
2015;3 (2) issued her a letter of reprimand (LOR) on June 9, 2015, after her
reinstatement; (3) reassigned her in June 2015 from the CCD at the Pentagon to
2 During the pendency of this appeal, 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. Section 1097 of the NDAA amended various provisions of title 5
of the United States Code. Our disposition of this matter would be the same under both
pre- and post-NDAA law.
3 The agency subsequently rescinded the probationary termination after realizing that
the appellant had constitutional due process rights. IAF, Tab 6 at 5.
3
the BCTF at the Mark Center (which added approximately 30 minutes to her daily
commute) and removed some communications duties from her upon her
reassignment to the BCTF; (4) lowered her performance appraisal;4 and (5) forced
her to take 80 hours of leave without pay (LWOP) because of the hostile work
environment in the CCD. IAF, Tab 5 at 16-22, 27-30, 32-34, Tab 6 at 16-70.
On May 24, 2016, OSC terminated its inquiry into her complaint and
apprised her of Board appeal rights. IAF, Tab 1 at 13-15. The appellant timely
filed this IRA appeal on June 29, 2016. IAF, Tab 1. The administrative judge
found that the Board has jurisdiction over this IRA appeal and set a hearing for
October 2017. IAF, Tab 14 at 1-3, Tab 30. The administrative judge dismissed
the appeal without prejudice based on the parties’ scheduling conflicts, IAF,
Tab 32 at 1-3, and “reopen[ed]”5 the appeal on September 29, 2017, id. at 2;
Lewis v. Department of Defense , MSPB Docket No. DC-1221-16-0695-W-2,
Appeal File (W-2 AF), Tab 1.
After a hearing, the administrative judge denied the appellant’s request for
corrective action.6 W-2 AF, Tabs 12-13, Tab 14, Initial Decision (ID) at 2, 28.
The administrative judge found that two of the appellant’s three disclosures were
protected by Federal whistleblower laws—alleged time card falsification by K.Y.,
her former CCD first-line supervisor, and alleged creation of a hostile work
4 The appellant worked for the Department of Transportation before joining the agency
in November 2014, HT1 at 8-9, so this was her first performance appraisal at WHS,
IAF, Tab 6 at 62-67. The appellant received an overall Fully Successful rating and a
$520 performance award. Id. at 66. The record does not reflect her overall
performance ratings at the Department of Transportation.
5 It appears that the administrative judge intended to “refile,” rather than “reopen,” the
appeal because administrative judges lack the authority to “reopen” or “reinstate” an
appeal. See Carroll v. Office of Personnel Management , 114 M.S.P.R. 310, ¶ 9 (2010).
6 Immediately preceding the first day of the hearing, the administrative judge allowed
the appellant to raise a claim that she disclosed that her CCD first-line supervisor, A.D.,
engaged in an abuse of authority by creating a hostile work environment. ID at 2 n.2.
The agency objected to the appellant’s request, but the administrative judge found that
the appellant exhausted this disclosure with OSC before filing the IRA appeal. Id.
(citing IAF, Tab 5 at 89-91). The agency does not challenge this ruling on review.
Petition for Review File, Tab 5.
4
environment by A.D., her then-CCD first -line supervisor. ID at 5-12, 15-17. The
administrative judge found that the appellant’s disclosure that agency contractors
disregarded policies related to work assignments was not a protected disclosure
but a debatable policy disagreement. ID at 12-15. The administrative judge
further found that the appellant’s two protected disclosures were a contributing
factor in the five personnel actions at issue, ID at 17-18, but that the agency met
its burden to show by clear and convincing evidence that it would have taken all
of the personnel actions even absent the appellant’s protected whistleblowing,
ID at 18-28.
The appellant has timely filed a petition for review,7 the agency has
responded in opposition, and the appellant has filed a reply to the agency’s
response.8 Petition for Review (PFR) File, Tabs 3, 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence.9 Salerno v. Department of the Interior , 123 M.S.P.R.
7 The appellant requested an extension of time to file her petition for review, which the
Office of the Clerk of the Board granted. Petition for Review File, Tabs 1-2.
8 In her reply brief, the appellant raises a new argument and asserts that the agency
conceded in its closing summation that it terminated her during her probationary period
because it initially believed that she was a “whistleblower[.]” PFR File, Tab 6 at 14.
We have reviewed both the hearing transcript and the hearing recording and, although
agency counsel does use the word “whistleblower,” it is clear from the context and the
rest of the agency counsel’s statement that she meant to say “probationer.”
Hearing Transcript (Oct. 17, 2017) at 406-07 (statement of agency counsel); W -2 AF,
Tab 13. In any event, statements made by an agency representative during a closing
argument are generally not evidence. See Hartsock-Shaw v. Office of Personnel
Management, 107 M.S.P.R. 17, ¶ 10 (2007). Moreover, a reply brief is limited to the
issues raised by another party in the response to the petition for review. 5 C.F.R.
§ 1201.114(a)(4). This issue was not raised in the agency’s response. Therefore, we
have not considered this argument as part of our analysis. See Boston v. Department of
the Army, 122 M.S.P.R. 577, ¶ 5 n.3 (2015) (declining to consider new arguments first
raised in a reply brief.)
9 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
5
230, ¶ 5 (2016). If the appellant makes such a showing, the burden shifts to the
agency to prove by clear and convincing evidence that it would have taken the
same action in the absence of the disclosure.10 Id.; see 5 U.S.C. § 1221(e)(2)
(setting forth the agency’s clear and convincing evidentiary burden). The Board
will consider the following factors to determine if an agency has met this burden:
(1) the strength of the agency’s evidence in support of the 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); see Whitmore v. Department of Labor , 680 F.3d
1353, 1368 (Fed. Cir. 2012) (recognizing 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”).
On review, the appellant does not challenge the administrative judge’s
finding that her disclosure about agency contractors disregarding policies about
work assignments was not protected, considering that the administrative judge
found that she otherwise established a prima facie case of whistleblower reprisal.
PFR File, Tab 3 at 15-16. The agency has not filed any cross -petition for review
to challenge the administrative judge’s findings that the appellant established a
prima facie case of whistleblower reprisal, and we find no basis to disturb these
well-reasoned findings. ID at 4-18; see Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016) (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).
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
10 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established. It is
a higher standard than preponderance of the evidence. 5 C.F.R. § 1209.4(e).
6
The only dispositive issue on review is whether the agency proved by clear
and convincing evidence that it would have taken all five personnel actions even
absent the appellant’s protected whistleblowing.11 PFR File, Tab 3 at 16. The
appellant claims that the agency failed to meet its clear and convincing burden for
all five personnel actions. Id. at 16-27. She asserts that the evidence relied on to
support her probationary termination was “woefully deficient to support any
adverse action” considering that the agency rescinded it shortly thereafter as
erroneous. Id. at 16-17. She further asserts that the agency officials involved in
her probationary termination had a strong motive to retaliate because she
disclosed wrongdoing by her former CCD supervisor, K.Y., and she disclosed a
hostile work environment in the CCD, which was substantiated by an agency
investigation that specifically criticized CCD leadership. Id. at 17-18; W-2 AF,
Tab 5 at 44-45. Moreover, she contends that the administrative judge failed to
undertake “any detailed analysis of the Carr factors” and misstated the facts that
supported the agency’s actions. PFR File, Tab 3 at 19, 22-24. For the reasons set
forth below, we agree that the administrative judge’s Carr factor analysis is
incomplete.
The administrative judge found that the appellant, A.D., and the WHS
Acting Deputy Director all testified credibly during the 2-day hearing.
ID at 10-11. Nevertheless, the administrative judge found that the agency proved
by clear and convincing evidence that it would have taken all five personnel
actions even in the absence of the appellant’s whistleblowing. The administrative
judge found that the appellant’s misconduct, i.e., sending mass emails that
disparaged contractor staff in violation of A.D.’s orders, deserved some discipline
(as described in the June 9, 2015 LOR). ID at 26. She further found that,
although A.D. was improperly advised by Human Resources (HR) staff to
11 To the extent that the appellant asserts on review that the administrative judge
improperly shifted the agency’s clear and convincing burden to herself, PFR File, Tab 3
at 24, 26, the appellant has not described how the administrative judge shifted that
burden to her, nor do we find any error by the administrative judge.
7
terminate the appellant during her probationary period, this error was not based
upon the appellant’s whistleblowing because there was no evidence that the HR
staff knew of the appellant’s whistleblowing activity. Id. The administrative
judge found further that none of the appellant’s CCD coworkers who made the
same disclosures to the WHS Acting Deputy Director and A.D. suffered any
disciplinary action because of those disclosures, ID at 26; that there was no
connection between the appellant’s performance evaluation or her use of 80 hours
of LWOP and her whistleblowing, ID at 27; and that the appellant’s reassignment
to the BCTF upon her reinstatement, with its concomitant change in her
communications duties, was made by a different WHS official who wanted to
give the appellant a fresh start in an important and respected WHS office,
ID at 27.12
Although the administrative judge made some findings about the strength
of the evidence in support of the appellant’s probationary termination and the
June 9, 2015 LOR, ID at 26-28, she did not make any findings about the existence
and strength of any motive to retaliate by the agency officials who were involved
in any of the personnel actions at issue ( Carr factor 2).13 An initial decision must
identify all material issues of fact and law, summarize the evidence, resolve
12 The administrative judge also noted that the appellant previously requested
reassignment from the CCD to a different unit within WHS before her now-rescinded
probationary termination. ID at 27; HT1 at 67 (testimony of the appellant).
13 The administrative judge’s minimal Carr factor 1 evaluation of the appellant’s
performance appraisal, reassignment to the BCTF, and use of 80 hours of LWOP was
limited to finding no connection between the appellant’s whistleblowing and these
personnel actions. ID at 27. Moreover, it appears that the administrative judge used an
inappropriate Carr factor 1 standard for these personnel actions. The Board has
recognized that Carr factor 1 does not apply straightforwardly when the personnel
action is not disciplinary and, therefore, does not require supporting evidence of
misconduct. See Gonzales v. Department of the Navy , 101 M.S.P.R. 248, ¶ 12 (2006).
Rather, the Board must consider whether the agency had legitimate reasons for
imposing the action when evaluating the strength of the agency’s evidence. Id. Thus,
on remand, the administrative judge must thoroughly analyze the appellant’s
performance appraisal, reassignment to the BCTF, and use of 80 hours of LWOP under
this appropriate Carr factor 1 standard.
8
issues of credibility, and include the administrative judge’s conclusions of law
and legal reasoning, as well as the authorities on which that reasoning rests.
Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 14 (2015). The U.S.
Court of Appeals for the Federal Circuit has held that, although the agency’s
treatment of similarly situated whistleblowers “may illuminate any motive to
retaliate under Carr factor 2, it does not show the agency’s treatment of
non-whistleblower employees accused of similar misconduct, the precise inquiry
considered under Carr factor 3.” Siler v. Environmental Protection Agency ,
908 F.3d 1291, 1299 (Fed. Cir. 2018).
The appellant contends that A.D. had a strong motive to retaliate because
her disclosures of a hostile work environment led directly to the agency’s
March 2015 Assessment Report, which found that leadership in the CCD was “not
effective” and the “number one concern expressed throughout the assessment.”
PFR File, Tab 3 at 17-18; W-2 AF, Tab 5 at 45; Hearing Transcript (October 17,
2017) (HT2) at 263 (testimony of A.D.). The Assessment Report’s conclusions
about CCD leadership, however, focused almost exclusively on K.Y., the former
supervisor, and E.S., a contract supervisor, not A.D., whom WHS had promoted
2 months earlier to fix the hostile work environment in the CCD. W-2 AF, Tab 5
at 45. Nevertheless, responsible agency officials “may well be motivated to
retaliate even if they are not directly implicated by the disclosures” at issue.
Whitmore, 680 F.3d at 1370.
The administrative judge also never made any findings about the agency’s
treatment of similarly situated non-whistleblowers ( Carr factor 3). The
administrative judge noted that A.D. never disciplined the appellant’s CCD
coworkers who made the same December 2014 and January 2015 disclosures, but
she did not describe which Carr factor this fact supported or how this affected her
overall analysis of the agency’s clear and convincing burden. An agency need not
introduce evidence of every Carr factor to prove its case, but the “risk associated
with having no evidence on record” for a particular factor falls on the
9
Government. Miller v. Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir.
2016) (noting that, although the absence of any evidence relating to Carr factor 3
can effectively remove that factor from the analysis, the Government bears the
risk associated with having no evidence on record for this factor); see Mithen v.
Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 36 (2015) (describing how
the Board does not view the Carr factors as discrete elements, each of which the
agency must prove by clear and convincing evidence, but will weigh the factors
together to determine whether the evidence is clear and convincing as a whole),
aff’d, 652 F. App’x 971 (Fed. Cir. 2016); see also Siler, 908 F.3d at 1299
(holding that Carr factor 3 cannot favor the Government when the Board finds an
absence of relevant comparator evidence). The appellant alleged that agency
officials, including A.D., treated K.Y., her non -whistleblower former CCD
supervisor who failed to submit required telework reports, differently by failing
to discipline her. PFR File, Tab 3 at 18; HT2 at 234 (testimony of A.D.). The
administrative judge did not address this allegation. We make no finding as to
whether K.Y. is an appropriate comparator under Carr factor 3 and leave it for
the administrative judge to make that determination in the first instance on
remand. See Whitmore, 680 F.3d at 1373 (noting that “[d]ifferences in kinds and
degrees of conduct between otherwise similarly situated persons within an agency
can and should be accounted for to arrive at a well-reasoned conclusion regarding
Carr factor three.”).
Thus, we agree with the appellant that the administrative judge’s Carr
factor analysis is incomplete. We vacate all of the administrative judge’s
findings regarding the agency’s clear and convincing burden and remand this
appeal to the Washington Regional Office for further adjudication. On remand,
the administrative judge may further develop the record and, if necessary, hold a
supplemental hearing. The administrative judge must explicitly address all three
Carr factors on remand. See, e.g., Mithen v. Department of Veterans Affairs ,
119 M.S.P.R. 215, ¶¶ 23-24 (2013) (remanding the case to the administrative
10
judge for an assessment of the clear and convincing issue, including rendering
credibility determinations); Massie v. Department of Transportation ,
118 M.S.P.R. 308, ¶¶ 7-8 (2012) (remanding the case for consideration of the
evidence as a whole under Whitmore).
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. | Lewis_MarqueseDC-1221-16-0695-W-2__Remand_Order.pdf | 2024-05-06 | MARQUESE LEWIS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-16-0695-W-2, May 6, 2024 | DC-1221-16-0695-W-2 | NP |
1,545 | https://www.mspb.gov/decisions/nonprecedential/Greene_Toccara_A_DA-0752-19-0460-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TOCCARA A. GREENE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-19-0460-I-2
DATE: May 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Toccara A. Greene , Wallisville, Texas, pro se.
Erin D. Reid , Galveston, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. On petition for review, the appellant
argues that the administrative judge improperly denied her request for a subpoena
and that he made several factually inaccurate statements in the initial decision.2
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).
2 The appellant also alleges that she was unable to obtain certain documents due to the
COVID-19 pandemic while the appeal was pending before the administrative judge.
Petition for Review (PFR) File, Tab 1 at 3-6. 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).
PFR File, Tab 1 at 4. However, the appellant does not attach any of these documents to
her petition for review, nor does she explain how the contents of these documents would
impact the outcome of this matter. Id.
3 On June 3, 2023, the appellant filed a pleading stating only “[w]ithdrawal of Petition
for Review.” PFR File, Tab 6 at 3. Consistent with Board policy, the Office of the
Clerk of the Board responded to the appellant, informing her that “to ensure the
appellant’s request to withdraw her petition for review is knowing and voluntary, the
appellant is ordered to submit a brief pleading within 7 days of the date of this Order
confirming that her request to withdraw her petition for review is voluntary and that she
understands the withdrawal is with prejudice to refiling with the Board.” PFR File,
Tab 7 at 2 (emphasis removed). The appellant did not respond to the Acting Clerk’s
order. Thereafter, the Acting Clerk issued a second order again informing the appellant
of the steps necessary to withdraw her petition for review. PFR File, Tab 8 at 1. That
order also informed the appellant that if she did not file a pleading confirming her intent
to withdraw her petition for review, the Clerk’s Office would not act on her request to
withdraw the petition for review, and the Board would instead issue a decision. Id.
at 1-2. The appellant did not respond to the order. On August 8, 2023, the Acting
Clerk informed the appellant that it would take no further action to process the June 3,
2023 pleading seeking to withdraw the petition for review and that the appeal would be
returned to the Board for consideration. Accordingly, the Board is issuing this decision
addressing the appellant’s petition for review.2
On review, the appellant argues that the administrative judge erred in
denying her motion for a subpoena that would have allowed her to obtain a
declaration that “directly rebutted the one document evidence provided by the
agency.” PFR File, Tab 1 at 3. 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). Here, the administrative judge
denied the appellant’s motion because it did not comply with 5 C.F.R.
§ 1201.73(c) or 5 C.F.R. § 1201.81, which set forth the procedural and
substantive requirements for requesting subpoenas. Greene v. Department of the
Army, MSPB Docket No. DA-0752-19-0460-I, Initial Appeal File (IAF), Tab 36
at 3. The administrative judge invited the parties to present any objections to the
order within 3 days. Id. at 4. The appellant did not object to the order, nor did
she refile her motion to comply with the relevant regulations. Thus, we discern
no basis to disturb the administrative judge’s finding.4 See Brown v. Department
of the Army, 96 M.S.P.R. 232, ¶ 6 (2004) (rejecting an argument presented on
review when the party failed to preserve an objection by objecting to the
administrative judge’s order below).
Regarding the appellant’s claims that the administrative judge incorrectly
decided important facts in this matter, we disagree. PFR File, Tab 1 at 4-5. After
a thorough review of the record, we find that the administrative judge considered
the evidence as a whole and made reasoned and logical conclusions that are
4 Additionally the appellant fails to explain how the denial of the subpoena affected the
outcome of the matter. PFR File, Tab 1 at 3. Although the appellant claims that the
information would have “directly rebutted” the agency’s document, the two parties
listed in the subpoena already confirmed that the certificate of care was false, and thus
we fail to understand how this additional information sought by the appellant would
have resulted in a different outcome. IAF, Tab 14 at 175; Greene v. Department of the
Army, MSPB Docket No. DA-0752-19-0460-I-2, Appeal File, Tab 11 at 25-26.3
supported by the evidence. Accordingly, we discern no reason to challenge the
administrative judge’s findings.5 Crosby v. U.S. Postal Service , 74 M.S.P.R. 98,
106 (1997) (declining 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).
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
5 In response to the appellant’s claim of disability discrimination, the administrative
judge determined that the appellant failed to establish that she was entitled to relief
because she failed to establish that her disability was a motivating factor in the
agency’s decision to remove her. ID at 14-17. While the administrative judge was
accurate in stating that appellant must establish that her disability was a motivating
factor in her removal in order to receive some relief, in light of the Board’s decision in
Pridgen v. Office of Management and Budget , 2022 MSPB 31, we clarify that to be
entitled to full relief an appellant must show that disability discrimination was a but-for
cause of the personnel action. Pridgen, 2022 MSPB 31, ¶¶ 21-22, 40, 42. As the
appellant did not establish that her disability was a motivating factor in her removal,
she cannot meet the higher but-for standard required to obtain full relief. Accordingly,
we see no need to further address this matter. Similarly, the record supports the
administrative judge’s finding that the appellant offered nothing more than mere
speculation that her removal was motivated by retaliation for her EEO complaint. ID
at 18-19. Thus, there is no showing of motivating factor in this regard, and there is no
need to further address this issue. See Pridgen, 2022 MSPB 31, ¶¶ 21-22, 43-44, 47.
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.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. 6
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. 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 | Greene_Toccara_A_DA-0752-19-0460-I-2__Final_Order.pdf | 2024-05-06 | TOCCARA A. GREENE v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-19-0460-I-2, May 6, 2024 | DA-0752-19-0460-I-2 | NP |
1,546 | https://www.mspb.gov/decisions/nonprecedential/Marshall_Earl_H_DA-315H-23-0022-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EARL H. MARSHALL, III,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-315H-23-0022-I-1
DATE: May 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Earl H. Marshall, III , Addison, Texas, pro se.
Jennifer E. Bugaj and Pamela D. Langston-Cox , Esquire, Chicago, Illinois,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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
based on an erroneous interpretation of statute or regulation or the 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).
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 the absence without leave charge,
which led to his termination, was erroneous. Petition for Review (PFR) File,
Tab 1 at 2-5. However, the appellant’s arguments pertain to the merits of the
appeal and are not relevant to the jurisdictional issue before the Board. 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 10 at 2-5; see Rivera v. Department of Homeland Security , 116 M.S.P.R. 429,
¶ 13 (2011) (finding that the appellant’s argument was immaterial to the
jurisdictional issue because it pertained only to the merits of his termination).
The alleged new evidence the appellant submitted with his petition for
review does not constitute “new” evidence for purposes of 5 C.F.R.
§ 1201.115(d)(1) because it was previously submitted to the administrative judge.
PFR File, Tab 1 at 7-11; IAF, Tab 5 at 10-13, 15; see Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980). Further, we find that none of this evidence
pertains to the issue of jurisdiction and therefore it is not material to the outcome
of the appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).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).
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
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.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
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
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 | Marshall_Earl_H_DA-315H-23-0022-I-1__Final_Order.pdf | 2024-05-06 | null | DA-315H-23-0022-I-1 | NP |
1,547 | https://www.mspb.gov/decisions/nonprecedential/Salekin_Choudhury_CB-1216-18-0004-T-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL,
Petitioner,
v.
CHOUDHURY SALEKIN,
Respondent.DOCKET NUMBER
CB-1216-18-0004-T-1
DATE: May 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kelly Resendes , Esquire, Washington, D.C., for the petitioner.
Stan Davis , Esquire, Brentwood, Tennessee, for the respondent.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The respondent has filed a petition for review of the initial decision, in
which the administrative law judge found that he violated the Hatch Act and
ordered that he be fined $1,000.00 and debarred from Federal service for 5 years.
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
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).
or the erroneous application of the law to the facts of the case; the administrative
law 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
Pursuant to 5 U.S.C. §§ 1212(a)(5), 1215(a)(1)(B), and 1216(c), and
5 C.F.R. § 734.102, the Office of Special Counsel (OSC) filed a complaint
against the respondent, who served as a physician with the Department of
Veterans Affairs (DVA), alleging 15 counts of violating the Hatch Act concerning
his 2014 candidacy for the office of United States Senator from Tennessee.
Initial Appeal File (IAF), Tab 1 at 9-14. In the first count, OSC alleged that the
respondent was a candidate for election to a partisan political office2 in violation
of 5 U.S.C. § 7323(a)(3) and 5 C.F.R. § 734.304. Id. at 9-10. In counts 2-6, OSC
alleged that the respondent used his official authority or influence for the purpose
of interfering with or affecting the result of an election in violation of 5 U.S.C.
§ 7323(a)(1) and 5 C.F.R. § 734.302. Id. at 10-11. In counts 7-10, OSC alleged
that the respondent knowingly solicited, accepted, or received political
contributions in violation of 5 U.S.C. § 7323(a)(2) and 5 C.F.R. § 734.303. Id.
2 Pursuant to 5 U.S.C. § 7322(2), “partisan political office” is defined as “any office for
which any candidate is nominated or elected as representing a party any of whose
candidates for Presidential elector received votes in the last preceding election at which
Presidential electors were selected.”2
at 11-12. Lastly, OSC alleged in counts 11-15 that the respondent engaged in
political activity while on duty and/or in a room or building occupied in the
discharge of his official duties in violation of 5 U.S.C. § 7324(a) and 5 C.F.R.
§ 734.306. Id. at 12-14.
In his amended answer to the complaint, the respondent denied 8 counts,
numbers 1-5 and 11-13. IAF, Tab 7 at 2-5, 7-8. He admitted to the conduct
alleged in 4 of the counts, numbers 7-10, but he denied that the conduct alleged in
counts 7 and 8 was willful, and contended that the conduct alleged in counts 9
and 10 did not constitute a violation of the Hatch Act. Id. at 5-7. Concerning
counts 6 and 14-15, the respondent neither admitted nor denied OSC’s
allegations. Id. at 8-9. Regarding counts 5, 6, 11, and 13, the respondent
challenged the evidence as hearsay. Id. at 5, 7-8. He claimed that he was
unaware that the Hatch Act prohibited his conduct and asserted that once he
became aware of the prohibition, he unsuccessfully tried to withdraw his
candidacy. Id. at 2, 10-11.
After holding a hearing, the administrative law judge sustained 11 of the 15
counts in OSC’s complaint, declining to sustain counts 5-6 and 11-12, and he
ordered that the respondent be fined $1,000.00 and debarred from Federal service
for 5 years. IAF, Tab 61, Initial Decision (ID). The administrative law judge
found that OSC proved the first count, establishing that the respondent was a
Federal employee covered by the Hatch Act, and that he was a candidate for
election to a partisan political office in violation of 5 U.S.C. § 7323(a)(3). ID
at 9. He found that OSC proved 3 out of the 5 counts, numbers 2-4, in which it
alleged that the respondent used his official authority and influence for the
purpose of interfering with or affecting the result of an election in violation of
5 U.S.C. § 7323(a)(1). ID at 9-20. The administrative law judge also found that
OSC proved all 4 of the counts, numbers 7-10, charging that the respondent3
knowingly solicited, accepted, and3 received political contributions in violation of
5 U.S.C. § 7323(a)(2). ID at 20-24. Lastly, he sustained 3 of the 5 counts,
numbers 13-15, in which OSC alleged that the respondent engaged in political
activity while in a building occupied in the discharge of his official duties in
violation of 5 U.S.C. § 7324(a). ID at 24-30. The administrative law judge then
performed an extensive penalty analysis, ultimately determining that a $1,000.00
fine and a debarment from Federal service for 5 years was the appropriate penalty
for the respondent’s violations of the Hatch Act. ID at 30-41.
In his petition for review, the respondent argues that the administrative law
judge erred in finding that he knowingly and willfully violated the Hatch Act.
Petition for Review (PFR) File, Tab 1 at 1. He also challenges several aspects of
the administrative law judge’s penalty analysis. Id. at 2-5. OSC has filed a
response to the respondent’s petition for review, and the respondent has filed a
reply to OSC’s response. PFR File, Tabs 3-4. OSC subsequently filed a motion
to strike the respondent’s reply as untimely filed and because it raised new
allegations of error not raised in his petition for review.4 PFR File, Tab 5.
3 The administrative law judge found that OSC proved a violation of 5 U.S.C. § 7323(a)
(2), which, according to the administrative law judge, prohibits knowingly soliciting,
accepting, and receiving political contributions. ID at 20-24. The statute, however,
uses the word “or,” not the word “and.” 5 U.S.C. § 7323(a)(2). The respondent does
not challenge this finding on review and, to the extent that the administrative law judge
erred in iterating the statutory language, his analysis is otherwise clear that the
respondent violated the statute. Thus, the administrative law judge’s error did not
prejudice the parties and is not a basis to disturb the initial decision. 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) .
4 OSC moved to strike the respondent’s reply because it was untimely filed and because
he did not raise the arguments therein, challenging the administrative law judge’s
findings with respect to counts 2-6, which concerned using his official influence, and
counts 7-10, which concerned political contributions, in his petition for review. PFR
File, Tab 4 at 2-4, Tab 5 at 9. The respondent asserted for the first time in his reply that
the administrative law judge failed to consider as mitigating factors his altruistic
motives in running for the Senate and his willingness to take a reduction in salary if
elected to the Senate. PFR File, Tab 4 at 3-4, Tab 5 at 9. OSC is correct that the4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative law judge correctly found that OSC proved that the respondent
violated the Hatch Act .
As discussed above, in its first count, OSC alleged that the respondent
violated 5 U.S.C. § 7323(a)(3) through his candidacy for partisan political office.
IAF, Tab 1 at 9-10. That statute makes it unlawful for an employee, such as the
appellant, to “run for the nomination or as a candidate for election to a partisan
political office.”5 5 U.S.C. § 7323(a)(3). Based on the record before us, we agree
with the administrative law judge that OSC established the first count because the
record shows that the respondent was a Federal employee covered by the Hatch
Act, and was a candidate for partisan political office in the 2014 election for
United States Senator from Tennessee. ID at 9. The respondent does not contest
these findings on review and instead contends that, because he was unaware that
the Hatch Act prohibited his candidacy, he did not knowingly or willfully violate
the Hatch Act when he ran for the Senate. PFR File, Tab 1 at 1. However, the
respondent did not make these claims in his petition for review. Compare, PFR File,
Tab 1 at 1-4, with PFR File, Tab 4 at 2-4. For example, the respondent argues for the
first time in his reply that he paid for the business cards at issue himself, and challenges
the finding that he coerced a patient into participating in a campaign video and the
finding that DVA sent him an email regarding the Hatch Act. PFR File, Tab 4 at 2-4.
To the extent that the respondent raises issues in his reply that OSC did not raise in its
response to his petition for review, a reply is limited to the issues raised by another
party in the response to the petition for review, 5 C.F.R. § 1201.114(a)(4). It may not
raise new allegations of error. Id. Accordingly, we will not consider the appellant’s
new arguments, first raised in his reply. See Boston v. Department of the Army ,
122 M.S.P.R. 577, ¶ 5 n .3 (2015) (declining to consider new arguments that were first
raised in a reply brief); Special Counsel v. Kehoe , 46 M.S.P.R. 112, 117-18 (1990)
(observing the well-established Federal appellate rule that a party cannot raise new
issues in a reply). Moreover, the respondent’s arguments largely repeat the
unsuccessful arguments he made below, and they do not show that the administrative
law judge erred in finding that OSC proved 11 out of the 15 Hatch Act violations set
forth in its complaint. PFR File, Tab 4 at 2-4; ID at 9-30. Thus, we need not consider
the timeliness of the respondent’s reply.
5 The regulatory language cited by OSC in its complaint, 5 C.F.R. § 734.304, tracks the
statutory language, with an exception not relevant here, stating that “[a]n employee may
not run for the nomination or as a candidate for election to partisan political office.” 5
respondent’s professed ignorance of the prohibition of his candidacy does not
excuse his misconduct because the plain language of the statute does not require
OSC to prove that a violation was either knowing or willful. 5 U.S.C. § 7323(a)
(3); Lewis v. Merit Systems Protection Board , 594 F. App’x 974, 979 (Fed. Cir.
2014) (observing that the prohibition in 5 U.S.C. § 7323(a)(2) does not require
knowledge or intent).6
In counts 2-4, OSC alleged that the respondent violated 5 U.S.C. § 7323(a)
(1). IAF, Tab 1 at 10-11. That statute prohibits an employee, such as the
respondent, from using “his official authority or influence for the purpose of
interfering with or affecting the result of an election.”7 5 U.S.C. § 7323(a)(1). In
sustaining counts 2-4, the administrative law judge found, respectively, that the
respondent used his official title and the DVA seal on his campaign business
cards, discussed his DVA employment on his campaign website, and influenced a
patient to participate in his campaign video. ID at 9-14. The respondent does not
challenge this finding on review, and we discern no reason to disturb it. The
administrative law judge determined that OSC did not prove counts 5-6, which
also alleged that the respondent violated 5 U.S.C. § 7323(a)(1) by, respectively,
providing information on how to view his campaign video to a patient during a
medical consultation, and informing a patient about a campaign event, finding
after lengthy analysis that OSC based these counts on unreliable hearsay. ID
at 14-20.
6 See Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶ 13 n.9 (2016) (explaining
that the Board may follow a nonprecedential decision of the U.S. Court of Appeals for
the Federal Circuit when it finds its reasoning persuasive).
7 The regulatory provision cited by OSC in support of counts 2-4, 5 C.F.R. § 734.302,
tracks the statutory language, stating that “[a]n employee may not use his or her official
authority or influence for the purpose of interfering with or affecting the result of an
election.” 5 C.F.R. § 734.302(a). The regulation give examples of prohibited conduct,
such as an employee using his official title while participating in political activity,
using his authority to coerce political activity, and soliciting, accepting, or receiving
volunteer services from a subordinate for political purpose. 5 C.F.R. § 734.302(b). 6
In counts 7-10, OSC alleged that the respondent violated 5 U.S.C.
§ 7323(a)(2). IAF, Tab 1 at 11-12. That statute prohibits an employee, such as
the respondent, from knowingly soliciting, accepting, or receiving political
contributions.8 5 U.S.C. § 7323(a)(2). This provision of the statute has an
explicit knowledge requirement, but, as the administrative law judge correctly
observed, OSC must only establish that the respondent knowingly accepted a
political contribution, and his awareness of the Hatch Act is therefore not an
element of the charge. ID at 20-21; 5 U.S.C. § 7323(a)(2); Lewis, 594 F. App’x
at 979-80 (observing that the statute does not require knowledge that soliciting
the donation violated the law). The administrative law judge found that OSC
established counts 7-10, finding that the respondent knowingly solicited,
accepted, and received political contributions. ID at 20-24. The respondent does
not challenge this finding on review, and we discern no reason to disturb it.
Lastly, in counts 11-15, OSC alleged that the respondent violated 5 U.S.C.
§ 7324(a). IAF, Tab 1 at 12-14. That statute prohibits an employee, such as the
respondent, from engaging in political activity, in pertinent part, while on duty or
in a room or building occupied in the discharge of official duties.9 5 U.S.C.
§ 7324(a)(1), (2). The administrative law judge sustained counts 13-15, finding
that the respondent, respectively, told a DVA employee about his candidacy and
website while in the workplace, asked a nurse to be in his campaign video, and
asked another employee to view his campaign video. ID at 27-30. The
respondent does not challenge these findings in his petition for review, and we
discern no reason to disturb them. The administrative law judge found that OSC
8 The regulatory provision cited by OSC in support of counts 7-10, 5 C.F.R. § 734.303,
tracks the statutory language, providing, among other things, that an employee may not
knowingly solicit, accept, or receive political contributions.
9 The regulatory provision cited by OSC in support of counts 11-15, 5 C.F.R. § 734.306,
tracks the statutory language, providing, among other things, that an employee may not
participate in political activities while on duty or while in a room or building occupied
in the discharge of official duties. 7
did not prove counts 11 and 12, once again finding that its case in support of
those counts rested on unreliable hearsay. ID at 25-26.
The appropriate penalty for the respondent’s Hatch Act violations is a $1,000 fine
and debarment from Federal service for 5 years.
In considering the penalty for the sustained violations of the Hatch Act, the
administrative law judge correctly found that the nonexhaustive list of factors for
considering the penalty in a chapter 75 action set forth by the Board in Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), were applicable. ID
at 30; Special Counsel v. Lewis , 121 M.S.P.R. 109, ¶ 23 (finding that under the
Hatch Act Modernization Act of 2012, the Board should apply the Douglas
factors in determining the proper penalty for violations of the Hatch Act), aff’d,
594 F. App’x 974 (Fed. Cir. 2014). The respondent disagrees with the
administrative law judge’s application of Lewis, 121 M.S.P.R. 109, and Special
Counsel v. Murry , MSPB Docket No. CB-1216-15-0002-T-1 (Final Order, Nov. 3,
2015),10 to his appeal, arguing that the “time, place, and circumstances” of those
cases are distinguishable from his situation, but he does not explain why the
Douglas factors are not applicable to his case. PFR, Tab 1 at 3; ID at 34-35.
Lewis, like the instant matter, was adjudicated under the Hatch Act Modernization
Act of 2012, and is therefore directly applicable here. Lewis, 121 M.S.P.R. 109,
¶ 18; ID at 34-35. It involved a covered employee who, like the respondent, was
a candidate for partisan political office, and explains that, for a covered
employee, being a candidate for a partisan political office warrants removal.
Lewis, 121 M.S.P.R. 109, ¶¶ 15, 27-31. The fact that Mr. Lewis did so twice, and
10 Murry is a nonprecedential decision, and such decisions have no precedential value.
5 C.F.R. § 1201.117(c)(2). Thus, the administrative law judge erred in citing it. Id.; ID
at 35. Nevertheless, because he properly cited other pertinent authority in support of
his point that Hatch Act violations are serious offenses, ID at 35, this did not prejudice
the respondent’s substantive rights, see Panter, 22 M.S.P.R. at 282 (an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision). 8
was removed from his position as a sanction for doing so, does not significantly
distinguish it from the instant matter, in which the respondent only ran for
partisan political office once, and, as noted, unsuccessfully tried to withdraw his
candidacy after being told that it violated the Hatch Act, especially considering
the lack of ordinary care that the administrative law judge found regarding the
respondent’s knowledge of the Hatch Act. ID at 37. Moreover, the respondent is
no longer employed by DVA, ID at 40, so the penalty of removal imposed in
Lewis is not available in the instant matter.
The respondent challenges the administrative law judge’s analysis of
several of the Douglas factors, first and foremost his lack of knowledge that his
candidacy was prohibited under the Hatch Act. PFR File, Tab 1 at 1-4. He
argues that the administrative law judge improperly concluded that he should
have known about the law prohibiting his candidacy for the United States Senate
on the basis of the administrative law judge’s subjective opinion of his
educational qualifications and intellectual level. Id. at 1. The respondent also
contends that OSC failed to show that he received a 2012 DVA email concerning
the Hatch Act and that DVA training concerning the Hatch Act did not regularly
happen until after he had filed as a candidate for election to the Senate. Id.
at 1-2.
The administrative law judge correctly found that knowledge is pertinent to
the penalty analysis because it addresses the Douglas factor regarding the clarity
with which the respondent was on notice of the rules he violated in committing
the misconduct in question, or had been warned about it. ID at 36-39. The
administrative law judge found that DVA employees have received Hatch Act
information during new employee orientation since 1993, which is before the
respondent began his employment with DVA in 1994, as well as during each
Federal election cycle, and that DVA maintained a Hatch Act
frequently-asked-questions page on the medical center’s website since 2010. ID9
at 5. He also found that DVA sent emails to all its employees regarding the
Hatch Act in 2012 and 2014 and that the respondent received them. Id.; IAF,
Tab 30 at 131-32, 210 -13, Tab 34 at 7-9. Notably, the respondent testified that he
did not open the 2012 email, because he “was not required to open it,” and he
asserted that “if I thought it was important to read, I would read [it],” Hearing
Transcript, Sept. 20, 2018, at 102, 111 (testimony of the respondent).
The administrative law judge determined that the respondent’s professed
lack of knowledge was therefore attributable to a lack of ordinary care. ID at 37;
see Special Counsel v. Blackburne , 58 M.S.P.R. 279, 284 (1993) (observing the
Board has held that, when information about the Hatch Act is readily available,
ignorance of its full scope is attributable to a lack of ordinary care). Because
these findings illustrate that information about the Hatch Act was readily
available to the respondent, the Board has found that knowledge of the Hatch Act
is properly imputed to him. Blackburne¸ 58 M.S.P.R. at 284. Moreover, the
record shows that the respondent replied to the October 1, 2014 email from his
supervisor with an assertion that he was aware of the Hatch Act. ID at 38-39;
IAF, Tab 30 at 274. Thus, we agree with the administrative law judge that,
because information about the Hatch Act was readily available to the respondent,
knowledge of the act is imputed to him, and that his knowledge of the Hatch Act
supports a more severe penalty. ID at 39.
The respondent also argues that the administrative law judge wrongfully
found that his candidacy impacted the performance of his duties and improperly
used that finding as an aggravating factor in his penalty analysis. PFR File, Tab 1
at 2. In analyzing this Douglas factor, which concerns the effect of the offense
on the respondent’s performance and on his supervisor’s confidence in his ability
to perform his assigned duties, Douglas, 5 M.S.P.R. at 305, the administrative
law judge noted that the respondent had engaged in political activity inside his
workplace, ID at 34. The administrative law judge found that OSC proved that10
the respondent had done so with other DVA employees three times. ID at 27-30.
Observing that the respondent’s supervisor had spoken to the respondent about
his performance not being at an acceptable level during the time he was a
candidate, the administrative law judge found that the respondent’s duties were
likely impacted by his candidacy, which, in turn, led to a loss of confidence by
his supervisor, and militates toward a slightly more severe penalty. ID at 34. On
review, the respondent argues that that there was no objective evidence of an
impact, in that he was not absent from work and did not make clinical errors or
see fewer patients as a consequence of his candidacy. PFR File, Tab 1 at 2. He
also argues that his supervisor was not from the same field of medicine as he was,
and was instead an administrative supervisor, limiting his ability to comment on
the respondent’s clinical productivity. Id. We are not persuaded. Even if there
was no objective evidence, the fact remains that the respondent’s supervisor
received complaints that the respondent had engaged in political activity in the
workplace, which OSC proved in counts 13-15. ID at 5, 27-30. Those
complaints, combined with the supervisor’s belief that the respondent’s
performance had slipped, could easily cause the supervisor to lose confidence in
the respondent’s ability to perform his assigned duties, especially if those
assigned duties were to conflict with the respondent’s political aims. Thus, we
agree with the administrative law judge that this factor militates slightly toward a
more severe sanction. ID at 34.
The respondent also contends that the administrative law judge failed to
consider the fact that he unsuccessfully tried to discontinue his candidacy on the
same day that DVA’s regional counsel notified him that it violated the Hatch Act.
PFR File, Tab 1 at 3-4. Contrary to the respondent’s contention, the
administrative law judge noted several times that, sometime after October 1,
2014, the respondent had stopped all campaign activity, and contacted the Federal
Election Commission to withdraw his candidacy. ID at 5, 36-38. The11
administrative law judge considered this fact in the context of the clarity with
which the respondent was on notice of the rules he violated, or had been warned
about the conduct at issue. ID at 36-39; Douglas, 5 M.S.P.R. at 305.
Lastly, the respondent argues that, because the administrative law judge
imposed the same penalty that OSC requested, the penalty failed to reflect the
mitigating factors discussed in the initial decision. PFR File, Tab 1 at 4. The
administrative law judge found that the respondent’s work record supported
mitigation, as did his cessation of campaign activities and attempt to withdraw his
candidacy. ID at 33, 40. However, the administrative law judge also found that
because the respondent’s cessation and attempted withdrawal of his candidacy
happened after his supervisor contacted him about the violations, it was not a
substantial mitigating factor. ID at 40. Ultimately, the administrative law
judge’s detailed Douglas analysis, in which he discussed each of the 12 Douglas
factors, finds more aggravating factors present than mitigating ones. ID at 31-40.
We agree with the administrative law judge that factors such as the nature of the
respondent’s professional responsibilities, prominence as a supervisor, contacts
with the public, and the effect on his supervisor’s confidence outweigh the
mitigating factors of his good work record and somewhat voluntary cessation of
his candidacy. Id.
Accordingly, applying the administrative law judge’s factual findings to
our independent consideration of the appropriate penalty for the respondent’s
Hatch Act violations under Douglas, we ORDER that the respondent be fined
$1,000 and debarred from Federal service for 5 years.
ORDER
The Board ORDERS that the respondent be fined $1,000 and debarred from
Federal service for 5 years. The Board also ORDERS OSC to notify the Board
within 30 days of the date of this Final Order whether the fine has been paid and12
the respondent debarred. This is the final decision of the Merit Systems
Protection Board in this appeal. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS11
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).
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.13
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 on14
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 raised15
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
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
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. 16
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 | Salekin_Choudhury_CB-1216-18-0004-T-1__Final_Order.pdf | 2024-05-06 | null | CB-1216-18-0004-T-1 | NP |
1,548 | https://www.mspb.gov/decisions/nonprecedential/James_Vernice_L_AT-3443-17-0753-I-1_AT-3443-18-0058-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERNICE LOCKHART JAMES,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBERS
AT-3443-17-0753-I-1
AT-3443-18-0058-I-1
DATE: May 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vernice Lockhart James , Columbia, South Carolina, pro se.
Avni D. Gandhi and Megan Cleary Deponte , Atlanta, Georgia,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed petitions for review of the initial decisions in these
appeals, which dismissed each 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
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).
2
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 these appeals, we JOIN them
for adjudication on review under 5 C.F.R. § 1201.36.2 We conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petitions for review. Therefore, we DENY the petitions for review. Except as
expressly MODIFIED to VACATE the administrative judge’s finding in MSPB
Docket No. AT-3443-17-0753-I-1 that the appellant’s whistleblower claim is
barred by the doctrine of collateral estoppel and to dismiss the appellant’s
whistleblowing claims as untimely filed, we AFFIRM the initial decisions.
BACKGROUND
On July 25, 2014, the appellant filed an individual right of action (IRA)
appeal contesting several matters, including nonselection for a position. James v.
Social Security Administration , MSPB Docket No. AT-3443-14-0870-I-1, Final
Order, ¶ 2 (Feb. 11, 2015). On February 11, 2015, the Board issued a final
decision dismissing the appeal for lack of jurisdiction. Id., ¶ 1.
On July 1, 2015, the appellant filed a tort claim with the agency’s Office of
General Counsel and subsequently pursued that claim in U.S. district court under
the Federal Tort Claims Act (FTCA). James v. Social Security Administration ,
MSPB Docket No. AT-3443-17-0753-I-1, Initial Appeal File (0753 IAF), Tab 9
2 Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite processing of the cases and not adversely affect the interests of the
parties. Tarr v. Department of Veterans Affairs , 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R.
§ 1201.36(a)(2), (b). We find that these appeals meet the regulatory criteria, and
therefore, we join them. See Tarr, 115 M.S.P.R. 216, ¶ 9.
3
at 5, Tab 1 at 4. She asserted that the district court denied her claim, finding that,
because her tort claim arose from her Federal employment, she must seek redress
under the Civil Service Reform Act of 1978, Pub. L. No. 95 -454, 92 Stat. 1111.
0753 IAF, Tab 1 at 5-6. On August 29, 2017, she filed the first of the two
appeals joined herein. 0753 IAF, Tab 1.
In addition to raising her FTCA claim, the appellant challenged her
nonselection for a “lead” position in the agency’s Training Cadre Program, and
contended that the agency also denied her the opportunity to participate in its
equal employment opportunity (EEO) counselors’ program and its Growth and
Enrichment in the Atlanta Region (GEAR)3 program. Id. at 4-5. As with her
FTCA claim, the appellant contended that the Chief Administrative Judge in her
office slandered and libeled her and she asserted that his actions resulted in her
not being selected for those programs. 0753 IAF, Tab 9 at 4. The appellant
indicated that she filed a complaint with the Office of Special Counsel (OSC)
concerning her allegations. Id.
The administrative judge dismissed the appeal for lack of jurisdiction.
0753 IAF, Tab 15, Initial Decision (0753 ID). Because he found that the
appellant’s whistleblower claims were identical to the claims she previously
pursued in MSPB Docket No. AT-3443-14-0870-I-1, the administrative judge
found that she was collaterally estopped from establishing Board jurisdiction over
them. 0753 ID at 3-4. The administrative judge considered whether the agency
had taken a suitability action against the appellant, but found that neither the
agency nor OPM had done so. 0753 ID at 5. The administrative judge also found
3 Although the administrative judge in one of these appeals wrote in his initial decision
that the GEAR acronym represents Goals-Engagement-Accountability-Results, the
vacancy announcement for the program position instead indicates that the acronym
stands for Growth and Enrichment in the Atlanta Region. James v. Social Security
Administration, MSPB Docket No. AT-3443-18-0058-I-1, Tab 10, Initial Decision at 1,
Tab 9 at 2. We find that the administrative judge’s error harmless. 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) .
4
that the appellant failed to raise an appealable employment practices claim
because she failed to identify any action by OPM that violated a basic
requirement set forth in 5 C.F.R. § 300.103 concerning any of the nonselections
she alleged. 0753 ID at 5. The administrative judge further found that the Board
lacks jurisdiction over the appellant’s FTCA claim. 0753 ID at 6.
While the 0753 appeal was still pending before the administrative judge,
the appellant filed the second appeal we have joined in this Final Order. James v.
Social Security Administration , MSPB Docket No. AT-3443-18-0058-I-1, Initial
Appeal File (0058 IAF), Tab 1. She argued therein that the score she received
during the selection process for the GEAR program violated 5 U.S.C.
§ 2302(b)(8). 0058 IAF, Tab 8 at 4. The administrative judge issued an initial
decision that dismissed the appeal for lack of jurisdiction, finding that the
appellant’s purported protected disclosure concerning the score she received, or
the agency’s implementation of the GEAR program, could not have been in
retaliation for her disclosure because she received her score before she made the
disclosure. 0058 IAF, Tab 10, Initial Decision (0058 ID) at 2.
The appellant has filed petitions for review in both appeals. James v.
Social Security Administration , MSPB Docket No. AT-3443-17-0753-I-1, Petition
for Review (0753 PFR) File, Tab 2; James v. Social Security Administration ,
MSPB Docket No. AT-3443-18-0058-I-1, Petition for Review (0058 PFR) File,
Tab 1. Both petitions involve her application for GEAR and other developmental
programs and there is considerable overlap in the allegations therein. Concerning
the first of her petitions, the appellant asserted that she exhausted her
administrative remedies before OSC. 0753 PFR File, Tab 2 at 4. She reiterated
her employment practices claim, her argument that the agency took a suitability
action against her, and her FTCA claim. Id. at 4-8. She made a second filing in
which she included several documents in support of her petition for review,
including preliminary determination and close-out letters from OSC informing her
that she may have a right to seek corrective action from the Board. 0753 PFR
5
File, Tab 4 at 12-16. The appellant also includes documentation from December
2010, regarding her assertions of slander and libel and a December 18, 2015 letter
from the agency’s Office of General Law concerning her FTCA claim. Id.
at 17-19. In the petition for review that she filed in her second appeal, the
appellant contends that the Board has general jurisdiction over her appeal. 0058
PFR File, Tab 1. She reasserts her employment practices claim and challenges
the administrative judge’s finding that she received her score in the GEAR
program selection process before her purported protected disclosure. Id. at 5-6.
She argues that OPM never reported the scores, even though it previously had
done so, and yet claims that she had a perfect score but was not selected. Id. at 6.
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). A nonselection for promotion
is not an independently appealable action. See 5 U.S.C. § 7512 (describing the
actions covered); Ellison v. Merit Systems Protection Board , 7 F.3d 1031, 1034
(Fed. Cir. 1993). Despite this general lack of Board jurisdiction, an appellant
may appeal a nonselection by other statutory means, such as pursuant to the
Veterans Employment Opportunities Act of 1998 (VEOA) or the Uniformed
Services Employment and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301-4335) (USERRA), or through an IRA appeal.
E.g., Becker v. Department of Veterans Affairs , 107 M.S.P.R. 327, ¶ 5 (2007).
As discussed below, the record does not reflect that the agency took an
independently appealable action against the appellant in either of these appeals,
and there is nothing in the record to indicate that the appellant sought to pursue a
claim under VEOA or USERRA in either appeal. Concerning the appellant’s
employment practices claim, the Board has jurisdiction over an employment
practices appeal when two conditions are met: (1) the appeal must concern an
6
employment practice that OPM is involved in administering; and (2) the appellant
must make a nonfrivolous allegation that the employment practice violated one of
the “basic requirements” for employment practices set forth in 5 C.F.R.
§ 300.103. Meeker v. Merit Systems Protection Board , 319 F.3d 1368, 1373 (Fed.
Cir. 2003); Sauser v. Department of Veterans Affairs , 113 M.S.P.R. 403, ¶ 6
(2010). Under 5 C.F.R. § 300.103, employment practices “shall be based on a job
analysis to identify: (1) The basic duties and responsibilities; (2) The
knowledges, skills, and abilities required to perform the duties and
responsibilities; and (3) The factors that are important in evaluating candidates.”
5 C.F.R. § 300.103(a). There also must be a “rational relationship between
performance in the position to be filled . . . and the employment practice used.”
5 C.F.R. § 300.103(b)(1).
The appellant contended in her 0058 appeal that the GEAR program was
announced through OPM, but that she did not receive a score from OPM,
asserting instead that an agency team completed their own assessments to
determine the selections. 0058 IAF, Tab 8 at 4.4 On review, the appellant states
that, for 2 years “we received a score from OPM first” before the agency panel
determined the selections. 0058 PFR File, Tab 1 at 6. She alleges that she should
have been selected for the position based on her score. Id. Although our
reviewing court in Meeker found that a scoring formula constituted an
“employment practice,” 319 F.3d at 1373, the appellant has failed to make a
nonfrivolous allegation that the scoring formula violated a basic requirement set
forth in 5 C.F.R. § 300.103. Thus, we agree with the administrative judge’s
finding that the appellant failed to establish jurisdiction over her employment
practices claim. See Banks v. Department of Agriculture , 59 M.S.P.R. 157, 160
(1993) (finding that the appellant failed to establish that the agency subjected him
to an appealable employment practice when he merely challenged his
4 The appellant also cited the Board’s employment practices jurisdiction in her 0753
appeal. 0753 IAF, Tab 14 at 4; 0753 PFR File, Tab 2 at 4.
7
nonselection for the position and the agency’s alleged irregularities in the
selection process), aff’d per curiam , 26 F.3d 140 (Fed. Cir. 1994) (Table).
We also agree with the administrative judge that the agency did not take a
suitability action against the appellant. 0753 ID at 5; see 5 C.F.R. § 731.203(a)
(defining a “suitability action” as a cancellation of eligibility, a removal, a
cancellation of reinstatement eligibility, and a debarment). Under 5 C.F.R.
§ 731.203(b), a nonselection for a specific position is not a suitability action,
even if it is based on the criteria for making such a determination. Similarly, the
appellant fails to identify any basis for her contentions that the FTCA, the Fair
Labor Standards Act, or the Board’s general jurisdiction over employment matters
that are unfair, 0058 PFR File at 6-8, provide a basis for Board jurisdiction over
her appeals. Additionally, to the extent that the appellant is alleging
discrimination, such prohibited personnel practices under 5 U.S.C. § 2302(b) are
not an independent source of Board jurisdiction. 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).
The appellant’s allegations of whistleblower retaliation are untimely.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),5
the Board has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations that:
(1) she 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 The incidents at issue in this appeal occurred after the December 27, 2012 effective
date of the WPEA. Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476.
8
5 U.S.C. § 2302(a)(2)(A).6 Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 5 (2016).
In the first of these appeals, the administrative judge found that the
appellant’s whistleblower claims were the same ones she had made in an earlier
appeal, MSPB Docket No. AT-3443-14-0870-I-1. 0753 ID at 4. Finding all the
elements of collateral estoppel present, he determined that the appellant’s
whistleblower claims were precluded by the Board’s final decision in her prior
appeal. Id.; see Kroeger v. U.S. Postal Service , 865 F.2d 235, 239 (Fed. Cir.
1988) (explaining that collateral estoppel, or issue preclusion, is appropriate
when: (1) an 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 precluded
was fully represented in the prior action). Id. However, because a jurisdictional
dismissal of an appellant’s prior whistleblower claims for failure to exhaust their
administrative remedies before OSC does not bar a second IRA appeal of the
same claims, we find that the administrative judge improperly applied the
doctrine of collateral estoppel. Bump v. Department of the Interior , 64 M.S.P.R.
326, 330-33 (1994). We therefore vacate the portion of the 0753 ID finding the
appeal barred by collateral estoppel. 0753 ID at 4.
Although the administrative judge found that the appellant’s purported
protected disclosure in the second of the appeals before us here occurred after she
received her score for the GEAR program, 0058 ID at 2-3, our review of the
6 Although the record shows that the administrative judge in the 0058 appeal failed to
give the appellant notice of all of the elements she must meet to establish jurisdiction
over an IRA appeal, 0058 IAF, Tab 2 at 2, the agency did so in its motion to dismiss the
appeal for lack of jurisdiction, 0058 IAF, Tab 7 at 6-7; see Burgess v. Merit Systems
Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must
receive explicit information on what is required to establish an appealable jurisdictional
issue). Nevertheless, because the agency’s motion to dismiss provided the required
notice, the administrative judge’s Burgess error was harmless. See Harris v. U.S.
Postal Service, 112 M.S.P.R. 186, ¶ 9 (2009) (finding that the necessary jurisdictional
notice may be provided by the agency pleadings or the initial decision).
9
record reveals that the appellant did not identify when she made her purported
disclosure. Accordingly, the record does not support the administrative judge’s
finding that the appellant’s disclosure happened after the purported nonselection.
0058 ID at 2-3.
Nevertheless, the 2014 documentation from OSC that the appellant filed in
support of the 0753 petition for review indicates that it involves the appellant’s
whistleblowing claims in both of these appeals, i.e., the agency’s selection
process for GEAR. 0753 PFR File, Tab 4 at 12-16; 0753 IAF, Tab 12 at 4;
0058 IAF, Tab 8 at 4. An appellant must file an IRA appeal with the Board no
later than 65 days after the date of issuance of OSC’s written notification that it
was terminating its investigation of her allegations or, if she shows that OSC’s
notification was received more than 5 days after the date of issuance, within
60 days after the date of receipt. 5 U.S.C. § 1214(a)(3)(A); Kalus v. Department
of Homeland Security , 123 M.S.P.R. 226, ¶ 7 (2016); 5 C.F.R. § 1209.5(a)(1). As
discussed below, because OSC’s letter was dated September 30, 2014, and she
filed the first of these appeals on August 29, 2017, the appellant’s whistleblower
reprisal claims were untimely filed by nearly 3 years. 0753 PFR File, Tab 4
at 12-16; 0753 IAF, Tab 1.
The Office of the Clerk of the Board issued a detailed order advising the
appellant of the law applicable to the timeliness of an IRA appeal, including the
circumstances under which the Board will employ equitable tolling to extend the
filing deadline. 0753 PFR File, Tab 6. The Clerk’s Office directed the appellant
to file evidence and argument showing that she filed her appeal on time or that
the delay was caused by circumstances that meet the test for equitable tolling. Id.
The Board’s regulations provide that the 65-day deadline for filing an IRA appeal
is subject to the doctrine of equitable tolling, which permits the Board to extend
the deadline when the appellant, despite having diligently pursued her rights, was
unable to make a timely filing. 5 C.F.R. § 1209.5(b).
10
The appellant filed a response and an amended response, neither of which
addressed the timeliness of her whistleblower reprisal claims. 0753 PFR File,
Tabs 7-8. As noted above, OSC’s close-out letter is dated September 30, 2014,
and it advised the appellant of her appeal rights. 0753 PFR File, Tab 4 at 11.
Specifically, OSC’s letter advised the appellant of her right to file an IRA appeal
within 65 days after the date of the letter. Id. Sixty-five days from
September 30, 2014, was December 4, 2014. The appellant filed the first of these
appeals on August 29, 2017, and the second on October 22, 2017, well more than
65 days following OSC’s September 30, 2014 close out letter. 0753 PFR File,
Tab 4 at 12-13; 0753 IAF, Tab 1; 0058 IAF, Tab 1. She identified no basis under
which the Board may apply the doctrine of equitable tolling to her whistleblower
reprisal claims. 5 C.F.R. § 1209.5(b). Thus, based on the current record, we
modify the initial decision to find that the appellant’s whistleblower reprisal
claims in both appeals were untimely filed.
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
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.
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.
13
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.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).
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.
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. | James_Vernice_L_AT-3443-17-0753-I-1_AT-3443-18-0058-I-1_Final_Order.pdf | 2024-05-06 | VERNICE LOCKHART JAMES v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. AT-3443-17-0753-I-1, May 6, 2024 | AT-3443-17-0753-I-1 | NP |
1,549 | https://www.mspb.gov/decisions/nonprecedential/Brown_JoshuaCB-7121-23-0004-V-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSHUA BROWN,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CB-7121-23-0004-V-1
DATE: May 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charlette Paulk , Ball, Louisiana, for the appellant.
Kendria Brown , Esquire, Grand Prairie, Texas, for the appellant.
Joshua Peter Dehnke and Lyndsey Frushour , Esquire, Baltimore, Maryland,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of an arbitrator’s decision that
denied his grievance of his removal. 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 request for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.155(b).
BACKGROUND
The appellant was formerly employed as a Senior Case Technician with the
agency. Request for Review (RFR) File, Tab 5 at 2. On January 18, 2023, he
filed an appeal challenging an arbitration decision, which was issued on
December 6, 2022.2 RFR File, Tab 1 at 1, 51. The appeal was forwarded to the
Office of the Clerk of the Board for docketing as a request for review of an
arbitrator’s decision. RFR File, Tab 2 at 1.
The Office of the Clerk of the Board issued an acknowledgment order that
advised the appellant that he appeared to have filed his request 8 days late. Id.
at 3. It further notified the appellant of the timeliness requirements that he must
meet to obtain review of the arbitration decision and ordered the appellant to file
evidence and argument to prove that the request for review was timely and/or
there existed good cause for any delay in filing his request for review. Id. at 3-4.
The appellant responded alleging that the attorney who represented him during
arbitration did not notify him of the adverse arbitration decision until
December 14, 2022. RFR File, Tab 7 at 2-3. The agency has submitted a
response to the appellant’s request for review. RFR File, Tab 8.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s request for review is untimely filed without good cause shown for
the delay.
A request for review of an arbitrator’s decision is timely if filed 35 days
from the issuance of the arbitration decision or, if the appellant shows that he
received the decision more than 5 days after it was issued, within 30 days after
the date he received the decision. Kirkland v. Department of Homeland Security ,
119 M.S.P.R. 74, ¶ 4 (2013); 5 C.F.R. § 1201.155(b). As previously noted, the
2 The appellant’s union raised a claim of disability discrimination before the arbitrator.
RFR File, Tab 1 at 5. 2
arbitrator’s decision was issued on December 6, 2022. RFR File, Tab 1 at 51.
According to the appellant, the decision was sent directly to the attorney who
represented him during the arbitration, but he does not otherwise allege that his
attorney received the decision more than 5 days after it was issued on
December 6, 2022. RFR File, Tab 7 at 3. To the contrary, the agency submitted
a copy of the December 6, 2022 email that the arbitrator sent to the agency and
the appellant’s attorney, which contained a copy of the arbitration decision. RFR
File, Tab 8 at 83. Receipt of a decision by an appellant’s designated
representative constitutes constructive receipt by the appellant. Fain v.
Department of Education , 98 M.S.P.R. 162, ¶ 5 (2005). Thus, under the 35-day
standard, the appellant should have filed his request by January 10, 2023.
The appellant alleges that his attorney did not send him a copy of the
arbitration decision until December 14, 2022, and therefore the deadline should
not begin to toll until that date. RFR File, Tab 7 at 2-3. We find this argument
unpersuasive. The appellant’s delay in receiving the decision from his attorney,
whether justified or not, does not extend the deadline for filing. See, e.g., Earls
v. Department of the Treasury, 95 M.S.P.R. 391, ¶ 4, aff’d sub nom. Earls v.
Merit Systems Protection Board, 113 F. App’x 924 (Fed. Cir. 2004). In any
event, even if we assume that the filing deadline did not begin to toll until the
appellant personally received the arbitration decision on December 14, 2022, his
request for review was still untimely filed under the 30 -day standard, as it should
have been filed by January 13, 2023. Because the appellant did not file his
request for review until January 18, 2023, via facsimile, we find that it was
untimely. See Dooley v. Department of the Air Force , 57 M.S.P.R. 684, 686
(1993) (holding that the date of filing by facsimile is the date imprinted on the
facsimile), aff’d sub nom. Dooley v. Merit Systems Protection Board , 22 F.3d
1105 (Fed. Cir. 1994) (Table).
The appellant has the burden of proving by preponderant evidence that the
request was timely filed with the Board. 5 C.F.R. § 1201.56(b)(2)(i)(B). The3
Board will dismiss an untimely request unless the appellant establishes good
cause for the delayed filing. Kirkland, 119 M.S.P.R. 74, ¶ 5. To establish good
cause, the appellant must show that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. Id.; see Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To determine whether
an appellant has shown good cause, the Board will consider the length of the
delay, the reasonableness of the excuse and the 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 timely
file the request for review. Kirkland, 119 M.S.P.R. 74, ¶ 5; see Moorman v.
Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d sub nom. Moorman
v. Merit Systems Protection Board , 79 F.3d 1167 (Fed. Cir. 1996) (Table).
We also find that the appellant’s claim that his attorney did not send him a
copy of the arbitrator’s decision until December 14, 2022, does not constitute
good cause for his delayed filing. To the extent the appellant is claiming that his
attorney’s delay was improper, it is well settled that an appellant is responsible
for any errors of his chosen representative. See, e.g., Miller v. Department of
Homeland Security , 110 M.S.P.R. 258, ¶ 11 (2008); Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981); cf. McCurn v. Department of Defense ,
119 M.S.P.R. 226, ¶ 13 (2013) (acknowledging the well-settled principle that an
appellant is responsible for the errors of his representative and clarifying that the
critical issue in that case was not the appellant’s attorney’s failure to inform the
appellant of his Board appeal rights but the agency’s failure to give the appellant
proper notice of his right to request review of the arbitration decision before the
Board). The appellant has not provided any evidence or argument suggesting that
his untimeliness was the product of deception, negligence, or malfeasance by his
representative. See Hamilton v. Department of Homeland Security , 117 M.S.P.R.
384, ¶ 13 (2012) (finding that the appellant’s claim of receiving misguided advice
from his attorney was unpersuasive because he is responsible for the errors of his4
chosen representative); cf. Pacilli v. Department of Veterans Affairs ,
113 M.S.P.R. 526, ¶ 13 (explaining that, although an appellant generally is
responsible for the errors of her chosen representative, an exception may lie when
the appellant establishes that her diligent efforts to prosecute an appeal were
thwarted without her knowledge by her attorney’s deceptions, negligence, or
malfeasance), aff’d sub nom. Pacilli v. Merit Systems Protection Board , 404 F.
App’x 466 (Fed. Cir. 2010). Moreover, the appellant here has not shown that he
exercised due diligence in prosecuting his request for review. Specifically, even
if his attorney delayed several days in sending him a copy of the arbitration
decision, the appellant still had sufficient time between his personal receipt of the
decision on December 14, 2022, and the January 10, 2023 deadline to timely file
the request for review, but instead he chose to file it late. Thus, we find that the
appellant has not established good cause for his untimeliness.3
Accordingly, we dismiss the appellant’s request for review as untimely
filed. This is the final decision of the Merit Systems Protection Board regarding
the timeliness of the appellant’s request for review of the arbitration decision.
3 Although not raised by the appellant, we considered whether the agency properly
notified the appellant of his appeal rights to the Board. An agency’s failure to notify
an employee of his Board appeal rights when such notification is required generally
constitutes good cause for late filing. Kirkland, 119 M.S.P.R. 74, ¶ 6. The agency’s
notice must be explicit and must, among other things, inform the employee “[w]hether
there is any right to request Board review of a final decision on a grievance in
accordance with” the provisions governing requests for Board review of arbitrators’
decisions. McCurn, 119 M.S.P.R. 226, ¶ 11; Kirkland, 119 M.S.P.R. 74, ¶ 8. When an
agency provides inadequate notice of Board appeal rights, the appellant is not required
to show that he exercised due diligence in attempting to discover his appeal rights, but
rather must show diligence in filing the appeal after learning that he could. McCurn,
119 M.S.P.R. 226, ¶¶ 12-13; Kirkland, 119 M.S.P.R. 74, ¶ 6. Here, the agency
explicitly advised the appellant in its removal decision of his right to request review of
the final arbitration decision on his grievance to the Board. RFR File, Tab 5 at 12.
Thus, the appellant cannot establish that good cause exists for his untimeliness based
on any agency failure to notify him of his right to request review of the arbitration
decision with the Board.5
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.6
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 any7
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’s8
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. 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 | Brown_JoshuaCB-7121-23-0004-V-1__Final_Order.pdf | 2024-05-06 | JOSHUA BROWN v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CB-7121-23-0004-V-1, May 6, 2024 | CB-7121-23-0004-V-1 | NP |
1,550 | https://www.mspb.gov/decisions/nonprecedential/Brown_DerrickAT-0752-21-0190-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DERRICK BROWN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-21-0190-I-1
DATE: May 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carl Hudson , Atlanta, Georgia, for the appellant.
Earl L. Cotton , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for physical inability to perform. 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
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).
2
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 charge analysis, we AFFIRM the initial
decision.
BACKGROUND
The appellant was a preference-eligible PS-06 Mail Processing Clerk for
the agency. Initial Appeal File (IAF), Tab 1 at 1, Tab 13 at 21. This position
involves some appreciable physical demands related to operating machinery and
moving parcels of mail. IAF, Tab 15 at 68-69. As set forth in the position
description, the functional requirements of a Mail Processing Clerk include,
among other things, lifting up to 70 pounds, carrying 45 pounds and over, and
standing, walking, pulling, pushing, and bending for 8 hours or more per day. Id.
at 68.
In late December 2018, the appellant began experiencing symptoms related
to what would later be diagnosed as congestive heart failure, and beginning
February 1, 2019, he began an extended leave of absence from work.2 IAF,
Tab 13 at 70-72, 84, Tab 14 at 6-8. In September 2019, the appellant’s treating
physician released him to return to duty with restrictions, and the appellant’s case
was referred to an agency District Reasonable Accommodation Committee. IAF,
Tab 13 at 73, 88-89. During the course of extensive proceedings between
2 On February 1, 2020, the appellant had a sick leave balance of 36 hours and an annual
leave balance of 108 hours. IAF, Tab 14 at 24-25. His ensuing 23-month absence was
therefore covered mostly by leave without pay. IAF, Tab 14, Tab 15 at 4-66.
3
September 2019 and March 2020, the agency repeatedly denied the appellant’s
return-to-duty requests on the basis that his restrictions prevented him from
performing the essential functions of a Mail Processing Clerk or of any vacant,
funded position. Id. at 56-88. On October 13, 2020, the agency proposed the
appellant’s removal for inability to perform the essential functions of his position.
Id. at 25-27. The deciding official sustained the charge and removed the
appellant effective December 25, 2020. Id. at 21-23.
The appellant filed a Board appeal, arguing that the agency committed
harmful procedural error in arriving at its removal decision. IAF, Tab 1 at 4,
Tab 24 at 1. After a hearing, the administrative judge issued an initial decision
affirming the appellant’s removal. IAF, Tab 27, Initial Decision (ID). He found
that the agency proved its charge, established nexus, and showed that the removal
penalty was reasonable under the circumstances. ID at 5-8, 10-12. He further
found that the appellant failed to prove that the agency committed harmful
procedural error. ID at 8-10.
The appellant has filed a petition for review, disputing some of the
administrative judge’s findings of fact as well as his analysis of the harmful error
defense. Petition for Review (PFR) File, Tab 1. The agency has filed a response.
PFR File, Tab 3.
ANALYSIS
In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency
bears the burden of proving by preponderant evidence that its action was taken
for such cause as would promote the efficiency of the service. MacDonald v.
Department of the Navy , 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(b)(1)
(ii). To meet this burden, the agency must prove its charge, establish a nexus
between the charge and the efficiency of the service, and demonstrate that the
penalty imposed was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144,
1147 (Fed. Cir. 1997). However, even if the agency carries this burden, the
4
action may not be sustained if the appellant shows harmful error in the
application of the agency’s procedures in arriving at its decision. 5 U.S.C.
§ 7701(c)(2)(A); see 5 C.F.R. § 1201.56(b)(2)(i)(C).
In sustaining the charge in this case, the administrative judge applied the
legal standard set forth in 5 C.F.R. § 339.206, which provides that “a history of a
particular medical condition may result in medical disqualification only if the
condition at issue is itself disqualifying, recurrence of the condition is based on
reasonable medical judgment, and the duties of the position are such that a
recurrence of the condition would pose a significant risk of substantial harm.” ID
at 5-8. However, while this appeal was pending on petition for review, the Board
issued a precedential decision clarifying that the standard set forth in 5 C.F.R.
§ 339.206 only applies when an employee was removed “solely on the basis of
medical history,” as opposed to a current medical condition. Haas v. Department
of Homeland Security , 2022 MSPB 36, ¶¶ 10-15. The Board explained that a
removal is based solely on medical history if the only basis for concluding that
the employee is medically unable to perform the core duties of his position is the
fact that his medical records reflect that, at some time in the past, he was
classified as having, was examined for, or was treated for the medical condition
or impairment in question. Id., ¶ 12. The appellant in this case was not removed
based on his medical history. Rather, he was removed based on physical
difficulties that he was contemporaneously experiencing related to an ongoing
medical condition.
Because the appellant’s removal was not based solely on his medical
history, the charge should not be analyzed under the standard set forth in 5 C.F.R.
§ 339.206. Rather, to prove its charge, the agency must establish either a nexus
between the appellant’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. Haas,
2022 MSPB 36, ¶ 15. The Board has otherwise described the standard as
5
requiring that the agency establish that the appellant’s medical condition prevents
him from being able to safely and efficiently perform the core duties of his
position. Id. We therefore modify the initial decision, as set forth below, to
apply this standard. Although the administrative judge applied what we have now
determined to be the incorrect standard to the agency’s charge, we find that
remand is unnecessary because the record is fully developed on the relevant
issues. See id., ¶ 20 (citing Forte v. Department of the Navy , 123 M.S.P.R. 124,
¶ 27 (2016)).
In this regard, we find that the administrative judge’s findings of fact are
sufficient to support the agency’s charge under the Haas standard and that the
record clearly establishes that the appellant’s medical condition prevents him
from being able to safely and efficiently perform the core duties of a Mail
Processing Clerk. ID at 5-8. It is undisputed that, leading up to his removal, the
appellant was absent from work for nearly 2 years because of medical restrictions
that prevented him from performing the core duties of his position. IAF, Tab 13
at 56-57, 59, 67, 70-75, 89, Tab 14, Tab 15 at 4-66. In determining whether the
agency met its burden, the Board will consider whether a reasonable
accommodation short of reassignment existed that would enable the appellant to
safely and efficiently perform his core duties. Haas, 2022 MSPB 36, ¶ 25.
However, no such accommodation is apparent to us, and neither party has
suggested that one might exist.
On petition for review, the appellant cites to the testimony of the
Supervisor of Distribution Operations, arguing that the average weight of the
letter trays that he needed to lift was 20 pounds, consistent with the 20-pound
limit set forth in his most recent medical restrictions. PFR File, Tab 1 at 8; IAF,
Tab 13 at 59. However, even if the “average” weight of a letter tray was 20
pounds, the necessary implication is that some trays would weigh less than 20
pounds and others more, and that the appellant’s work would therefore often
involve lifting trays that exceeded that weight. Moreover, we have reviewed the
6
testimony to which the appellant cites, and we find that the Supervisor of
Distribution Operations did not testify as to the average weight of a letter tray.
The appellant’s representative asked her, “Is it also true that the letter trays
themselves range from between 10 to 25 pounds per letter tray?” However, the
examination was diverted and the witness never actually answered the question.
Hearing Recording, Track 2 at 25:45 (testimony of the Supervisor of Distribution
Operations).
The appellant also argues that the administrative judge relied on “an
unofficial position description sheet” in reaching his decision. PFR File, Tab 1
at 8; ID at 2, 5-6; IAF, Tab 15 at 68. We are not persuaded by this argument. It
is not clear to us why this position description should be considered “unofficial,”
the appellant has not submitted an “official” position description for us to
consider as an alternative, and he has not explained what about the allegedly
unofficial position description is inaccurate or how it would differ from an
official position description. In other words, even assuming that the
administrative judge should not have considered this document in reaching his
decision, the appellant has not explained how the outcome of the appeal would
have been different if the administrative judge had considered some other
position description instead. An adjudicatory error that is not prejudicial to a
party’s substantive rights provides no basis to reverse an initial decision . Panter
v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984).
The main focus of the appellant’s petition is his affirmative defense of
harmful procedural error. PFR File, Tab 1 at 8-10. To prove that the agency
committed harmful procedural error under 5 U.S.C. § 7701(c)(2)(A), an appellant
must show both that the agency committed procedural error and that the error was
harmful. Parker v. Defense Logistics Agency , 1 M.S.P.R. 505, 513 (1980). In
other words, an appellant must prove that any procedural errors by the agency
prejudiced his substantive rights by possibly affecting the agency’s decision;
harmful error cannot be presumed. Stephen v. Department of the Air Force ,
7
47 M.S.P.R. 672, 681 (1991). In this case, the appellant advances two theories of
harmful procedural error.
First, he argues that the agency violated section 365.342(a), (f) of its
Employee and Labor Relations Manual (ELM) when it removed him without first
sending a comprehensive medical report to the appropriate agency Area Manager.
PFR File, Tab 1 at 8-9; IAF, Tab 13 at 31-32. The administrative judge addressed
this argument below, finding that the appellant failed to show that any additional
medical evidence that the agency might have obtained would likely have led it to
reach a different decision in his case. ID at 8-9. We agree with the
administrative judge’s analysis.3 The appellant states that the medical report on
which the agency relied was more than a year old at the time of his removal, PFR
File, Tab 1 at 9, but he has not provided any evidence to show that his medical
condition has improved during the interim, see Tolton v. Department of the Army ,
5 M.S.P.R. 269, 273 (1981) (finding that the appellant failed to prove harmful
error because, even assuming that the agency committed procedural error, he did
not show that the error was harmful).
Second, the appellant argues that the agency erred under the applicable
collective bargaining agreement and local memorandum of understanding by not
providing him with a light duty assignment. PFR File, Tab 1 at 9-10; IAF, Tab 22
at 14-21, 37-38. The administrative judge addressed this argument below as well,
finding that neither the collective bargaining agreement nor the memorandum of
understanding purport to guarantee a limited duty assignment for an injured or ill
employee, and that there was nothing in the record to suggest that any such
assignment was available within the appellant’s restrictions. ID at 10. On
petition for review, the appellant argues that he could have performed work in the
manual letters unit or on the small parcel bundle sorter. PFR File, Tab 1 at 9;
3 The administrative judge noted but declined to resolve a dispute over whether this
provision of the ELM applies to non-compensably injured employees, and thus whether
the agency committed procedural error to begin with. ID at 9. We likewise find it
unnecessary to reach this issue.
8
IAF, Tab 13 at 68. However, even if the appellant was able to perform light duty
work in these areas, he has not identified any evidence to show that any such
work was actually available. For the reasons explained in the initial decision, we
agree with the administrative judge that the appellant has not shown harmful
procedural error in this regard. ID at 10.
Finally, the appellant argues that, under Latham v. U.S. Postal Service ,
117 M.S.P.R. 400, ¶ 13 (2012), overruled by Cronin v. U.S. Postal Service ,
2022 MSPB 13, the agency is required to meticulously follow its own rules, and
that the agency in this case failed to do so. PFR File, Tab 1 at 10. However, for
the reasons explained above, we find insufficient evidence to show that the
agency failed to follow its own rules in such a way as to prejudice the appellant’s
substantive rights. Furthermore, this finding in Latham pertained to allegedly
arbitrary and capricious denials of restoration under 5 C.F.R. § 353.304(c), a
regulation not at issue in the instant appeal. Moreover, during the pendency of
this appeal, Latham was overruled by Cronin, 2022 MSPB 13, ¶¶ 16-20, on this
very point.
The appellant does not directly contest the administrative judge’s findings
on nexus and penalty, and for the reasons explained in the initial decision, we
find that the agency has carried its burden on these issues. ID at 10-12. The
Board has routinely found that removal for physical inability to perform promotes
the efficiency of the service when there is no foreseeable end to the employee’s
incapacity and it is not feasible to provide him other work within his medical
restrictions. See, e.g., Clemens v. Department of the Army , 120 M.S.P.R. 616,
¶ 18 (2014); see also Marshall-Carter v. Department of Veterans Affairs ,
94 M.S.P.R. 518, ¶ 14 (2003) (finding that, even in the absence of a disability
discrimination claim, the availability of a lower-graded position within an
employee’s medical restrictions is relevant to the issue of penalty for an adverse
action based on physical inability to perform).
9
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.
10
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
11
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
12
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.
13
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. | Brown_DerrickAT-0752-21-0190-I-1__Final_Order.pdf | 2024-05-06 | DERRICK BROWN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-21-0190-I-1, May 6, 2024 | AT-0752-21-0190-I-1 | NP |
1,551 | https://www.mspb.gov/decisions/nonprecedential/Disotuar_Oldanis_W_AT-844E-21-0126-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OLDANIS W. DISOTUAR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-21-0126-I-1
DATE: May 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Wayne Johnson , Esquire, Winter Park, Florida, for the appellant.
Linnette L. Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND 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),
dismissing his application for disability retirement under the Federal Employees’
Retirement System (FERS) as untimely filed. For the reasons set forth below, we
GRANT the appellant’s petition for review, REVERSE 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).
2
REMAND the case to OPM for further adjudication consistent with this Remand
Order.
BACKGROUND
The appellant was employed by the Bureau of Prisons as a Correctional
Officer. Initial Appeal File (IAF), Tab 6 at 34. After 10 months of being
physically unable to perform his duties due to permanent medical restrictions for
which full recovery was not expected, the appellant’s attorney informed the
Bureau of Prisons that the appellant “ha[d] applied for medical retirement.” Id.
at 48-50, 58-59.2 Two weeks later, the agency issued a letter of proposed removal
due to his physical inability to perform the duties of his position. Id. at 22-24.
The agency issued a removal decision on November 29, 2017, effective the next
day. Id. at 31-33. Neither letter informed him of his possible eligibility for
disability retirement or of the 1 -year deadline to file the necessary application.
Id. at 22-24, 31-33. However, the removal decision noted that the agency had
ceased its reasonable accommodation efforts when the appellant, through his
attorney, indicated he was “not interested in reasonable accommodation,” and
“[h]ad applied for medical retirement.” Id. at 32, 58. In February 2018, the
appellant requested, and appears to have received, a refund of his retirement
contributions. Id. at 156, 168-74.
Over 1.5 years after his removal, in July 2019, the appellant applied for
disability retirement under FERS. Id. at 4, 125. OPM issued a reconsideration
decision dismissing the appellant’s application because he applied after the
statutory 1-year time limit lapsed and failed to assert that mental incompetence
caused his delay. IAF, Tab 6 at 4-5, 97-98.
The appellant filed this appeal alleging that OPM wrongly dismissed his
application. IAF, Tab 1 at 4. He argued that he was not late because his
2 During the hearing, the appellant clarified that he and his attorney completed the
forms and that he was awaiting a removal decision from the agency prior to filing. IAF,
Tab 16, Hearing Recording (testimony of the appellant).
3
employing agency did not inform his attorney of his separation. IAF, Tab 15 at 6.
He further argued that he was entitled to equitable tolling because the separation
letter did not advise him of his right to file a disability retirement application, as
required by 5 C.F.R. § 844.202(b)(1). IAF, Tab 1 at 4, Tab 15 at 5-6. The
administrative judge granted the appellant’s hearing request on the issue of
whether OPM properly denied his application for disability retirement as
untimely filed. IAF, Tab 1 at 2, Tab 10 at 2-3. At the hearing, the appellant
testified that he received the August 30, 2017 letter of proposed termination but
he did not recall whether he received the November 29, 2017 removal decision,
and he did not learn about his removal until December 2017, when the agency
asked him to turn in his equipment. IAF, Tab 16, Hearing Recording (HR)
(testimony of the appellant).
After the hearing, the administrative judge issued an initial decision
affirming OPM’s dismissal. IAF, Tab 17, Initial Decision (ID) at 2, 7. She
reasoned that an agency’s failure to inform an employee of his potential disability
retirement option was not a basis to equitably toll the statutory 1-year filing
deadline required by 5 U.S.C. § 8453. ID at 5-6.
The appellant has timely filed a petition for review of the initial decision,
to which the agency has responded. Petition for Review (PFR) File, Tabs 1, 3. In
his petition for review, the appellant reiterates verbatim the arguments he made
below. PFR File, Tab 1 at 5-6; IAF, Tab 15 at 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge, as modified, that the appellant’s
application for disability retirement was untimely.
The appellant appears to argue that his July 26, 2019 application for
disability retirement was not untimely because the agency did not send a copy of
the November 29, 2017 removal decision to his attorney. PFR File, Tab 1 at 4, 6.
Although the administrative judge found that the appellant filed his application
more than 1.5 years after he was separated from service, she did not address his
4
argument that the agency notice was insufficient to trigger the 1 -year deadline.
ID at 3-4. We modify the initial decision to address this argument, still finding
the appellant untimely.
Applications for disability retirement must be filed with OPM “before the
employee . . . is separated from the service or within 1 year thereafter.” 5 U.S.C.
§ 8453. In interpreting the identical language at 5 U.S.C. § 8337(b), applicable to
Civil Service Retirement System (CSRS) disability retirement applications, the
U.S. Court of Appeals for the Federal Circuit has held that the 1-year filing
period does not begin to run until the employing agency notifies the employee he
has been terminated. Johnston v. Office of Personnel Management , 413 F.3d
1339, 1341-42 (Fed. Cir.), as modified on recons. on technical grounds per
curiam, 430 F.3d 1376 (Fed. Cir. 2005).
At the hearing, the appellant admitted that he received a notice of proposed
removal due to his physical inability to perform the duties of his position. HR
(testimony of the appellant); IAF, Tab 6 at 22-24. Although he did not remember
if he received the final decision letter, he testified that he learned of his removal
the next month when the agency told him to turn in his equipment. HR
(testimony of the appellant).3 Regardless of the lack of specific recollection that
he received the removal decision, the appellant is presumed to have received it
within 5 days. Cabarloc v. Department of Veterans Affairs , 110 M.S.P.R. 695,
¶ 7 (2009); 5 C.F.R. §§ 1201.4(i), (l), 1201.22(b)(3). An appellant cannot leave
matters entirely in the hands of his representative. See Jones v. Office of
Personnel Management , 93 M.S.P.R. 50, ¶ 5 (2002). Thus, by December 2017,
the appellant is presumed to have received the removal decision, triggering the
1-year filing deadline. His July 2019 application was therefore untimely by
7 months.
3 The agency sent b oth letters to the same address, at which the appellant said he
resided during all of 2017 and received other communications from the agency during
the same time period. IAF, Tab 6 at 22-24, 31-33.
5
We waive the deadline due to the employing agency’s failure to provide notice as
required by 5 C.F.R. § 844.202(b)(1).
The appellant reiterates his argument on appeal that he is entitled to
equitable tolling of the 1-year deadline because the agency’s removal notice did
not comply with regulatory requirements. Specifically, he argues that it failed to
inform him of his possible eligibility for disability retirement or the time limit for
filing an application. PFR File, Tab 1 at 4-6; IAF, Tab 15 at 5-6. We reverse the
administrative judge’s finding that equitable tolling of the statutory filing
deadline is unavailable under these circumstances. ID at 5-6.
Section 844.202(b)(1) of Title 5 of the Code of Federal Regulations states
that an agency removing an employee apparently based on his medical inability to
perform in his position “must advise the employee in writing of his or her
possible eligibility for disability retirement and of the time limit for filing an
application.” The Federal Circuit has held that the 1-year filing deadline required
by 5 U.S.C. § 8453 can be waived when the agency fails to provide these details.
See, e.g., Johnson v. Office of Personnel Management , No. 2015-3175, slip op.
at 3-4 (Fed. Cir. May 24, 2016) (concluding that the failure to provide notice
under 5 C.F.R. § 844.202(b)(1) could require waiver of the 1-year filing
deadline); Winchester v. Office of Personnel Management , 449 F. App’x 936,
937-39 (Fed. Cir. 2011) (finding failure to provide regulatory notice under
5 C.F.R. § 831.1205(b)(1), the regulatory equivalent of 5 C.F.R. § 844.202(b)(1)
applicable to disability retirement applications submitted under CSRS, could
serve as a basis to equitably toll the filing deadline). Following the Federal
Circuit’s remand of Johnson to the Board, the Board in turn remanded the case to
the regional office to determine if notice was required under the regulation, i.e., if
the employee’s removal was “apparently caused by a medical condition.”
Johnson v. Office of Personnel Management , MSPB Docket No. CH-844E-14-
0449-M-1, Remand Order, ¶ 4 n.2, ¶¶ 6-7 (Sept. 2, 2016) (quoting 5 C.F.R.
§ 844.202(b)(1)). Although we are not bound by the Federal Circuit’s
6
nonprecedential decisions, we find these decisions persuasive in the instant case.
See Special Counsel v. Coffman, 124 M.S.P.R. 130, ¶ 56 n.10 (2017) (explaining
that the Board may rely on unpublished decisions of the Federal Circuit if it finds
the court’s reasoning persuasive) .
The appellant’s employing agency proposed his removal, and ultimately
removed him, for physical inability to perform the duties of his position due to
his lumbar disc disease and nerve root entrapment condition, medical disabilities
for which recovery was not expected. IAF, Tab 6 at 22-24, 31-32. Thus, his
removal was apparently based on his medical inability to perform his duties, and
his employing agency was required to advise him of his possible eligibility for
disability retirement and the time limit for filing an application. 5 C.F.R.
§ 844.202(b)(1). It is undisputed that the agency failed to do so. IAF, Tab 6
at 22-24, 31-33. Although the notice of removal notified the appellant of his
right to file a grievance or pursue other administrative complaints and appeals, it
was silent as to disability retirement. Id. at 32-33. Because the employing
agency failed to fulfill its notice requirements under 5 C.F.R. § 844.202(b)(1), we
find the appellant’s 1-year deadline to file his disability retirement application
should have been waived.4
The record suggests that the appellant received a refund of his retirement
contributions. IAF, Tab 6 at 156. A refund of an employee’s FERS retirement
contributions generally voids all FERS annuity rights. 5 U.S.C. § 8424(a);
Pagum v. Office of Personnel Management , 66 M.S.P.R. 599, 601 (1995). We
4 Although the appellant may have been aware of his possible entitlement to disability
retirement, his “actual awareness” of his rights does not release the agency from its
obligation to notify him of his possible entitlement and the deadline by which he must
submit an application. See Harris v. Office of Personnel Management , 888 F.2d 121,
122-23, 124 (Fed. Cir. 1989) (finding that an annuitant’s actual awareness of his right
to elect a survivor annuity for his new spouse within 1 year of remarriage did not
overcome the need to determine whether the annuitant actually received the statutorily
required notice); Murphy v. Office of Personnel Management , 50 M.S.P.R. 407, 411-12
(1991) (same). Moreover, although the appellant was apparently aware of his possible
entitlement to disability retirement, there is no indication he was aware of the 1 -year
deadline to file his application. IAF, Tab 6 at 58.
7
express no opinion as to whether this refund impacts the appellant’s entitlement
to an annuity. OPM has not yet made a determination on this issue, and therefore,
we are without jurisdiction to adjudicate it. See Poole v. Department of the Army ,
117 M.S.P.R. 516, ¶ 10 (2012) (observing, in a CSRS retirement appeal, that the
scope of the appeal was limited to those matters addressed in OPM’s
reconsideration decision). OPM should address this issue on remand, as well as
the appellant’s argument that he is entitled to a presumption that he is disabled
based on the nature of his removal. PFR File, Tab 1 at 5 (citing Bruner v. Office
of Personnel Management , 996 F.2d 290, 292-94 (Fed. Cir. 1993) (determining
that when an employing agency separates an individual for physical inability to
perform the duties of his assigned position or another position within the agency,
he is entitled to a presumption that he is disabled for purposes of eligibility for a
CSRS disability retirement annuity).
ORDER
For the reasons discussed above, we remand this case to OPM. OPM shall
waive the statutory time limit for filing the application for disability retirement
and shall determine the merits of the application in a new decision. OPM shall
issue a new reconsideration decision addressing whether the appellant’s medical
conditions as raised in his application materials entitle him to disability
retirement benefits. OPM shall issue the new reconsideration decision within
60 calendar days from the date of this Remand Order and shall advise the
appellant of his right to file an appeal with the Board’s Atlanta Regional Office if
he disagrees with that new decision. See Ott v. Office of Personnel Management ,
120 M.S.P.R. 453, ¶ 9 (2013) .
We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took to carry out the Board’s Order. We ORDER the appellant to provide all
necessary information OPM requests to help it carry out the Board’s Order. The
8
appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.
§ 1201.181(b).
No later than 30 days after OPM tells the appellant 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
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Disotuar_Oldanis_W_AT-844E-21-0126-I-1__Remand_Order.pdf | 2024-05-03 | OLDANIS W. DISOTUAR v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-21-0126-I-1, May 3, 2024 | AT-844E-21-0126-I-1 | NP |
1,552 | https://www.mspb.gov/decisions/nonprecedential/Turk_John_Z_CH-1221-18-0186-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN Z. TURK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-18-0186-W-1
DATE: May 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Z. Turk , Eastlake, Ohio, pro se.
Amber Groghan , Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as settled. 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
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 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
further FORWARD the appellant’s claim that the agency breached the settlement
agreement to the regional office for docketing as a petition for enforcement.
BACKGROUND
The agency removed the appellant from his position as a Medical
Technologist for inappropriate conduct, failure to follow a standard operating
procedure, and failure to follow a supervisory instruction, effective
October 13, 2017. Initial Appeal File (IAF), Tab 5 at 34-37, 63-66.
The appellant filed a complaint with the Office of Special Counsel (OSC) in
which he alleged that the agency had committed prohibited personnel practices
and retaliated against him for whistleblowing.2 See IAF, Tab 1 at 22-24.
On November 30, 2017, OSC informed the appellant that it had closed its file
regarding his allegations and notified him of his right to seek corrective action
from the Board. Id.
The appellant timely filed an individual right of action appeal alleging that
the agency had made him work overtime without pay, allowed agency employees
to harass him, suspended him, removed him, and denied him health insurance
coverage in retaliation for his whistleblowing activity. Id. at 5. During the
2 The record contains a copy of OSC’s closure letters to the appellant, which reference
the appellant’s OSC complaint, but does not contain a copy of the complaint.
See IAF, Tab 1 at 22-24.2
pendency of the appeal, the parties executed a settlement agreement. IAF, Tab 25
at 4-6. On April 24, 2018, the administrative judge issued an initial decision
finding that the agreement was lawful on its face, and that the parties had freely
entered into the agreement, understood its terms, and intended to have the
agreement entered into the record. IAF, Tab 26, Initial Decision (ID) at 1-2.
The administrative judge entered the agreement into the record for enforcement
purposes and dismissed the appeal as settled. ID at 2-3.
The appellant has timely filed a petition for review in which he alleges that
he lost a job offer because an agency employee conveyed to the employer that he
was terminated and forced to resign from the agency.3 Petition for Review (PFR)
File, Tab 1 at 4. He argues that the Standard Form (SF) 50 showing his
resignation does not reflect that his resignation was voluntary, which was a
mistake that allows the agency to state to prospective employers that his
resignation was forced upon him. Id. at 4-5. The appellant states that the SF-50
should be modified to state in the nature of the action or the remarks section of
the document that the resignation is voluntary so that he can prove to prospective
employers that his resignation was voluntary. Id. at 5. The agency has filed an
3 Although the Clerk of the Board docketed the petition for review on July 13, 2018,
approximately 6 weeks after the initial decision became final on May 29, 2018,
the Clerk found the petition to be timely filed on May 23, 2018. Petition for Review
(PFR) File, Tab 1 at 1, Tab 2 at 1. On May 23, 2018, the appellant submitted a petition
for review; it appears that he sent it to both the Clerk of the Board and to
the regional office. Turk v. Department of Veterans Affairs, MSPB Docket No.
CH-1221-18-0186-C-1, Compliance File (CF), Tab 1, Petition for Enforcement
(May 23, 2018). The regional office docketed the pleading as a petition for
enforcement; however, the appellant informed the administrative judge that he intended
to pursue a petition for review, and the administrative judge dismissed the petition for
enforcement as withdrawn. CF, Tabs 2, 6, 11. The appellant subsequently re-filed his
petition for review with the Clerk of the Board. PFR File, Tab 1. When a party files a
petition for review within the time limit prescribed by 5 C.F.R. § 1201.114(e), but
mistakenly files it with one of the Board’s regional offices instead of with the Clerk of
the Board, the Board will accept it as timely filed. Sumner v. Office of Personnel
Management, 87 M.S.P.R. 542, ¶ 4 (2001). Accordingly, we agree with the
administrative judge that the appellant’s petition for review was timely filed.3
opposition to the petition, and the appellant has filed a reply to the agency’s
opposition.4 PFR File, Tabs 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
A settlement agreement is a contract between the parties, and its terms are
to be interpreted as a question of contract law. Wofford v. Department of Justice,
115 M.S.P.R. 468, ¶ 6 (2010). An appellant may challenge the validity of a
settlement agreement if he believes it was unlawful, involuntary, or the result of
fraud or mutual mistake. Id. However, the party challenging the validity of a
settlement agreement bears a heavy burden of showing a basis for invalidation.
Id.
On review, the appellant contends that the omission in his resignation SF-
50 of a statement that the resignation is voluntary was a mistake in creating the
SF-50 contemplated by the settlement agreement. PFR File, Tab 1 at 4-5. To the
extent that the appellant argues that the settlement agreement is void on the basis
of mutual mistake, he has not met his burden. A mutual mistake of fact is a
4 The appellant’s reply to the agency’s opposition was untimely filed on
August 3, 2018. PFR File, Tab 5. The appellant moved to waive the time limit to file
his reply, alleging in a sworn statement that he did not receive the agency’s opposition
to his petition for review until he learned of it during an August 3, 2018 telephone call
with the Office of the Clerk of the Board. Id. There is no indication that the agency
sent its opposition to an incorrect address. See PFR File, Tab 3. The appellant has not
shown good cause for his untimely filing, but even if we were to consider the
appellant’s reply, we find that he has not established any basis for granting his petition
for review. See 5 C.F.R. § 1201.22(b)(3) (providing that correspondence which is
properly addressed and sent to the appellant’s address via postal or commercial delivery
is presumed to have been duly delivered to the addressee). The appellant has
subsequently filed three motions requesting to supplement his petition for review.
PFR File, Tabs 7, 9, 13. The appellant argues that he should be permitted to do so
because the administrative judge “made comments” to the Clerk of the Board after he
filed his petition for review and wishes to respond to the alleged comments, and he
requests additional time to provide additional evidence about his lost job opportunities.
PFR File, Tab 7 at 2, 9 at 2, Tab 13 at 3. The agency has opposed the first two motions.
PFR File, Tab 10. We find no evidence that the administrative judge improperly
communicated with the Clerk of the Board; additionally, the appellant does not identify
the additional evidence or explain how it is relevant and why it was not available at the
time he filed his petition for review. Accordingly, the appellant’s motions are denied.4
shared, mistaken belief of the parties regarding a material assumption of fact
underlying their agreement. Vance v. Department of the Interior, 114 M.S.P.R.
679, ¶ 12 (2010). In construing a settlement agreement, the Board will first
consider the terms of the agreement itself, which are of paramount importance in
determining the intent of the parties at the time they contracted. Harris v.
Department of Veterans Affairs, 99 M.S.P.R. 609, ¶ 4 (2005). The Board will
only examine extrinsic evidence if the terms of the agreement are ambiguous,
meaning they are susceptible to more than one reasonable interpretation. Id.
Here, the settlement agreement provides that the agency will “remove the
removal SF-50 from Appellant’s [electronic Official Personnel Folder (eOPF)]”
and “create an SF-50 . . . noting his resignation for personal reasons” that will
“stay in Appellant’s eOPF.” IAF, Tab 25 at 4. The SF-50 at issue states that the
appellant resigned for personal reasons. PFR File, Tab 1 at 15. It is devoid of
reference to the appellant’s removal or an involuntary action. Id. In the absence
of any reference in the resignation SF-50 suggesting that the appellant’s
resignation was involuntary, the SF-50, on its face, reflects that the appellant’s
resignation was voluntary.
To the extent that the appellant argues that the parties intended for the
resignation SF-50 to explicitly state that his resignation was voluntary, we find
his argument unpersuasive. PFR File, Tab 1 at 4-5. The agreement is silent as to
whether the resignation SF-50 should include such a statement. IAF, Tab 25
at 4-6. However, the parties specifically provided in the agreement that the SF -50
would state that the appellant’s resignation was for personal reasons, but did not
include any additional provisions regarding the SF-50, which reflects that the
parties did not intend to include any additional provisions at the time they made
the agreement. See id. at 4. The Board will not read a nonexistent term into a
settlement agreement that is unambiguous. Galatis v. U.S. Postal Service,
109 M.S.P.R. 651, ¶ 10 (2008). Additionally, the appellant has not provided any
evidence that, at the time the agreement was made, the parties intended for the5
agreement to provide for his desired statement. Thus, the appellant has not
shown that the parties acted under mutual mistake in omitting a provision from
the settlement agreement that provided for an SF-50 that explicitly stated that the
appellant’s resignation was voluntary.
The issue underlying the appellant’s petition is his allegation that an
agency employee informed a potential employer that the appellant was removed
from the agency, causing him to lose a job offer. See PFR File, Tab 1 at 4. The
Board and its reviewing court have construed a settlement agreement that, like
here, calls for the rescission of a removal and issuance of an SF-50 showing
resignation, to constitute a promise by the agency to “eras[e] ‘removal’ and all
reasons for such a removal from [the employee’s] professional record with the
agency”; in other words, to provide the employee with a “clean record.” See
Vance, 114 M.S.P.R. 679, ¶ 8 (quoting Conant v. Office of Personnel
Management, 255 F.3d 1371, 1376 (Fed. Cir. 2001)). The Board has also found
that such a “clean record” settlement agreement prohibits the agency from
disclosing removal-related documents to third parties and dictates that the
agency’s communications with third parties “reflect what the replacement SF-50
shows, i.e., that [the employee] resigned, and that it not disclose the
circumstances of the removal.” Vance, 114 M.S.P.R. 679, ¶¶ 8-9 (quoting Torres
v. Department of Homeland Security, 110 M.S.P.R. 482, ¶ 12 (2009)).
Thus, the appellant appears to state a claim that the agency breached the
settlement agreement by disclosing to a third party that the appellant was
removed. Allegations of noncompliance with a settlement agreement should be
addressed in the first instance by the administrative judge. Secrist v. U.S. Postal
Service, 115 M.S.P.R. 199, ¶ 8 (2010); 5 C.F.R. § 1201.182(a). Accordingly, we
FORWARD the appellant’s allegations of noncompliance to the Central Regional6
Office for processing as a petition for enforcement.5 See Secrist, 115 M.S.P.R.
199, ¶ 9.
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
5 In January 2019, the appellant filed a petition for enforcement of the settlement
agreement in the regional office, which the regional office docketed as a separate case.
PFR File, Tab 15 at 1-30. The petition for enforcement, as well as several other
pleadings the appellant subsequently filed, alleged that the appellant has not been able
to obtain a job because the agency breached the settlement agreement.
See, e.g., id. at 12-13. After reviewing the appellant’s pleadings, the administrative
judge determined that the appellant had renewed the same allegations of breach set forth
in his petition for review in the instant case. Id. at 118-19. The administrative judge
closed the separate case and forwarded the petition for enforcement and related
pleadings to the Board for consideration in the instant case. Id. We agree that the
petition for enforcement raises similar allegations of breach, but with respect to new job
prospects. Accordingly, the regional office shall consider both those allegations of
breach raised in the appellant’s petition for review and those set forth in his January and
February 2019 filings. Id. at 1-26, 39-117. Additionally, to the extent the appellant is
alleging that he was not selected for a position because he is a veteran, he may seek
corrective action under the Veterans Employment Opportunities Act of 1998 or the
Uniformed Services Employment and Reemployment Rights Act of 1994. See id. at 12-
13. The appellant’s motion for leave to file an additional pleading regarding the
petition for enforcement is denied. See PFR File, Tab 17.
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 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. 7
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. 8
(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. 9
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. 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
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.11 | Turk_John_Z_CH-1221-18-0186-W-1__Final_Order.pdf | 2024-05-03 | JOHN Z. TURK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-18-0186-W-1, May 3, 2024 | CH-1221-18-0186-W-1 | NP |
1,553 | https://www.mspb.gov/decisions/nonprecedential/Hendy_David_M_CH-3330-18-0110-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. HENDY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-3330-18-0110-I-1
DATE: May 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David M. Hendy , Chicago, Illinois, pro se.
Zane Perry Schmeeckle , Esquire, Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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
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
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).
2
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. However, for the reasons
discussed below, we VACATE the initial decision, DISMISS the appeal as
untimely filed, and FORWARD the appellant’s additional, unadjudicated VEOA
claim to the regional office for docketing as a new VEOA appeal.
BACKGROUND
At an unspecified time, the appellant filed a VEOA complaint with the
Department of Labor (DOL), which designated his complaint as claim number
IL-2018-001-VPH. Initial Appeal File (IAF), Tab 1 at 4-5. In a letter
dated November 14, 2017, a DOL investigator informed the appellant that his
veterans’ preference complaint had been closed because it was not filed within
the statutory deadline of 60 days from the date of the alleged violation. Id.
On December 14, 2017, the appellant filed this Board appeal seeking corrective
action under VEOA, and he requested a hearing. Id. at 1-3.
The administrative judge apprised the appellant of the elements and
burdens of proving jurisdiction, exhaustion, and timeliness regarding a VEOA
appeal, and she ordered the parties to respond on those issues. IAF, Tab 3.
Regarding the timeliness of the Board appeal, she informed the appellant that a
VEOA appeal must be filed with the Board no later than 15 calendar days after
the date on which he received written notice from the Secretary of Labor that
DOL had not resolved his complaint. Id. at 5. She further explained that VEOA
3
filing deadlines may not be waived for good cause, but they are subject to
equitable tolling. Id. She ordered the appellant to file a statement with
supporting documentation on the timeliness issue, including whether the filing
deadlines should be equitably tolled. Id. at 6. The parties responded. IAF, Tabs
4, 9-14.
Without holding the requested hearing, the administrative judge issued an
initial decision denying the appellant’s request for corrective action under VEOA.
IAF, Tab 15, Initial Decision (ID) at 1, 6. Specifically, she found that the
appellant failed to nonfrivolously allege that his DOL complaint was filed within
the 60-day statutory time limit or to allege any basis for equitably tolling the
filing deadline. ID at 4-6. She further found that the appellant failed to
nonfrivolously allege a VEOA claim. ID at 6 n.5.
The appellant has filed a petition for review, and he has included
supplemental documentation. Petition for Review (PFR) File, Tabs 7-32.2
The agency has filed a response, PFR File, Tab 35, to which the appellant has
replied, PFR File, Tab 36.3
2 The appellant’s initial petition for review was untimely filed by 1 day. PFR File,
Tab 1, Tab 2 at 2. He has filed a motion to waive the time limit for filing a petition for
review based on illness. PFR File, Tab 34. We find good cause to grant his motion.
See Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 (1998) (explaining that the
Board will find good cause for waiver of its filing time limits when a party
demonstrates that he suffered from an illness that affected his ability to file on time);
see also 5 C.F.R. § 1201.114(g). We further find that the agency has not alleged or
shown that it would be prejudiced by a waiver of the time limit. See Moorman v.
Department of the Army , 68 M.S.P.R. 60, 63 (1995) (explaining that, if good cause has
been demonstrated, then the Board determines whether the agency has shown that it
would be prejudiced by a waiver of the time limit), aff’d, 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
3 The agency has filed a motion for leave to file an additional pleading addressing the
appellant’s allegedly new claims raised in his reply. PFR File, Tab 37; see 5 C.F.R.
§ 1201.114(a)(5). Alternatively, the agency requests the Board to strike such claims for
failure to comply with 5 C.F.R. § 1201.114(a)(4). PFR File, Tab 37. We deny the
agency’s alternative request because the appellant’s reply elaborates on his claim
concerning a new DOL complaint (IL-2018-008-VPH) that he previously set forth in his
petition for review. PFR File, Tab 7 at 25, Tab 36 at 7, 9-11, 18-19; cf. Elder v.
Department of the Air Force , 124 M.S.P.R. 12, ¶ 22 n.3 (2016) (declining to consider
4
DISCUSSION OF ARGUMENTS ON REVIEW
For the following reasons, we vacate the initial decision denying the
appellant’s request for corrective action under VEOA, and we dismiss the appeal
as untimely filed. See, e.g., Williamson v. U.S. Postal Service , 106 M.S.P.R. 502,
¶¶ 6-8 (2007) (addressing the merits of the appellant’s request for corrective
action after first determining that his VEOA appeal was timely filed). Because it
is unclear from the existing record what alleged veterans’ preference violations
the appellant raised before DOL as part of claim number IL-2018-001-VPH and
when he filed such complaint, we are unable to determine whether his DOL
complaint was timely filed within the 60-day time limit set forth at 5 U.S.C.
§ 3330a(a)(2)(A). See Gingery v. Office of Personnel Management , 119 M.S.P.R.
43, ¶ 16 (2012) (explaining that the statute requires that the complaint be filed
with DOL within 60 days after the date of the alleged violation of veterans’
preference rights). In particular, although the appellant alleged that he called the
DOL hotline and was sent a link to file a claim on August 28, 2017, he did not
explain when he filed a complaint. IAF, Tab 4 at 28. Further, the appellant
provided evidence of a DOL complaint dated October 20, 2017, in which he
alleged that he was denied reinstatement on October 16, 2017, in violation of his
veterans’ preference rights.4 IAF, Tab 14 at 9-19. In addition, the appellant
submitted a copy of another DOL closeout letter dated January 19, 2018,
the agency’s argument that it raised for the first time in its reply). Further, we deny the
agency’s motion because we have not considered the appellant’s allegations and
evidence concerning the new DOL complaint (IL-2018-008-VPH), which is the subject
of a separate VEOA appeal docketed as Hendy v. Department of Veterans Affairs ,
MSPB Docket No. CH-3330-18-0514-I-1. PFR File, Tab 7 at 25, Tab 36 at 7, 9-11,
18-19; 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); Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (holding 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).
4 Although part of the DOL complaint is also dated October 25, 2017, we need not
resolve this discrepancy. IAF, Tab 14 at 9-13.
5
concerning case number IL-2018-002-VPH. IAF, Tab 11 at 22-23. The letter
indicates that, on November 21, 2017, the appellant timely filed a VEOA
complaint with DOL regarding his alleged nonselection for three positions. Id.
The administrative judge did not address either the DOL complaint
dated October 20, 2017, or the DOL close-out letter dated January 19, 2018.
An appellant has the burden of proving by preponderant evidence the
timeliness of his Board appeal. 5 C.F.R. § 1201.57(c)(2). Pursuant to 5 U.S.C.
§ 3330a(d)(1)(B), a complainant must file a VEOA appeal with the Board within
15 days after he receives written notification from DOL that his VEOA complaint
has not been resolved. See Gingery v. Department of the Treasury , 110 M.S.P.R.
83, ¶ 23 (2008). Failure to meet this 15-day statutory filing deadline will result
in the dismissal of the VEOA appeal on timeliness grounds unless the appellant
can establish a basis for equitable tolling. See id., ¶¶ 24-25 (remanding the
VEOA appeal for the administrative judge to provide the parties an opportunity to
address whether the 15-day filing deadline should be equitably tolled); see also
Williamson, 106 M.S.P.R. 502, ¶ 6 (explaining that the 15-day filing deadline
cannot be waived and that the Board must dismiss an appeal filed beyond that
deadline, but also that the deadline is subject to equitable tolling) .
As an initial matter, we find that the appellant has received clear notice of
the precise timeliness issue in this appeal and a full and fair opportunity to
litigate it. See Wright v. Department of Transportation , 99 M.S.P.R. 112,
¶¶ 12-13 (2005) (finding that the appellant was entitled to clear notice of the
precise timeliness issue in the appeal and a full and fair opportunity to litigate it).
IAF, Tab 3 at 5-6, Tab 9 at 11-12
After reviewing the parties’ evidence and argument on the timeliness issue,
we find that the appellant has failed to prove that he timely filed his VEOA
appeal within the 15-day statutory deadline. The appellant’s submission on
review of an email dated November 15, 2017, establishes his receipt of the DOL
6
close-out letter dated November 14, 2017.5 PFR File, Tab 14 at 24-26. In his
email to the DOL investigator, the appellant states that he received the letter in
person on November 15, 2017, and that he contests the dismissal of his VEOA
complaint based on the 60-day statutory deadline. Id. Moreover, we find that the
DOL close-out letter constitutes sufficient written notice to trigger the start of the
15-day filing period because the letter clearly informed the appellant that his case
had been closed. IAF, Tab 1 at 4-5; see 5 U.S.C. § 3330a(c)(2), (d)(1)(B);
see also Shaver v. Department of the Air Force , 106 M.S.P.R. 601, ¶ 4 n.2 (2007)
(stating that the 15-day deadline to file a Board appeal does not begin to run until
the complainant receives notice, in writing, that DOL’s efforts to investigate and
resolve the complaint did not result in resolution of the complaint). Thus, the
appellant untimely filed his Board appeal by facsimile on December 14, 2017,
beyond the 15-day statutory deadline. IAF, Tab 1; see 5 C.F.R. § 1201.4( l).
Moreover, we find that the appellant has not established any of the limited
bases for equitably tolling the deadline. See Gingery, 110 M.S.P.R. 83, ¶ 24.
The DOL close-out letter notified the appellant that he had the right to file a
Board appeal within 15 calendar days from the date of his receipt of the letter.
IAF, Tab 1 at 4-5. To the extent the appellant argues that his medical conditions
warrant equitable tolling, we find that this does not provide a basis for applying
equitable tolling in this matter. PFR File, Tab 7 at 18-19; see Garcia v.
Department of Agriculture , 110 M.S.P.R. 371, ¶¶ 5-6 (2009) (discerning no error
in the administrative judge’s determination that the appellant’s medical
conditions did not justify applying equitable tolling to a VEOA filing deadline).
Accordingly, we dismiss this VEOA appeal as untimely filed.6
Further, we forward the appellant’s additional, unadjudicated VEOA claim
(based on a DOL close-out letter dated January 19, 2018, concerning case number
5 The parties’ remaining submissions on review do not address the dispositive
timeliness issue. PFR File, Tabs 7-32, 35-36.
6 We deny the appellant’s request for a stay to return to work. PFR File, Tab 7 at 27.
7
IL-2018-002-VPH) to the regional office for docketing as a new VEOA appeal.7
IAF, Tab 11 at 22-23.
NOTICE OF APPEAL RIGHTS8
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.
7 Although we make no jurisdictional or timeliness findings concerning the appellant’s
new VEOA appeal, we acknowledge that he filed the DOL close-out letter
on January 25, 2018, in response to the administrative judge’s jurisdictional order.
IAF, Tab 11 at 22-23; see Irwin v. Department of Veterans Affairs , 498 U.S. 89, 96
(1990) (explaining that the U.S. Supreme Court had allowed equitable tolling when the
complainant “has actively pursued his judicial remedies by filing a defective pleading
during the statutory period”).
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 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.
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 you
9
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. 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
11
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. | Hendy_David_M_CH-3330-18-0110-I-1__Final_Order.pdf | 2024-05-03 | DAVID M. HENDY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-3330-18-0110-I-1, May 3, 2024 | CH-3330-18-0110-I-1 | NP |
1,554 | https://www.mspb.gov/decisions/nonprecedential/Feehan_MatthewPH-3443-22-0265-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW FEEHAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-3443-22-0265-I-1
DATE: May 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew Feehan , Jacksonville, North Carolina, pro se.
Paul Kranick , Esquire, Coatesville, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal challenging the termination of his
temporary appointment. 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
clarify and supplement the administrative judge’s analysis of the appellant’s
status under 5 U.S.C. § 7511(a)(1)(A), we AFFIRM the initial decision.
However, we FORWARD the appellant’s whistleblower reprisal claim to the
Northeastern Regional Office for docketing as a new individual right of action
(IRA) appeal.
BACKGROUND
Effective June 21, 2022, the appellant, a preference-eligible veteran,
received a provisional appointment not to exceed June 20, 2023, to the
competitive service position of GS-0341-11 Administrative Officer in the Primary
Care Unit at the VA Central Western Massachusetts Healthcare System
(CWM HCS) in Leeds, Massachusetts. Initial Appeal File (IAF), Tab 1 at 7. The
Standard Form (SF) 50 memorializing the appointment stated that it was made
under the legal authority of “Reg 316.402(b)(4).” Id.
On June 29, 2022, the appellant sent an email that he classified as a
disruptive behavior report to the Director of CWM HCS complaining about
ongoing problems that he was having with his direct supervisor and stating that
he “require[d] a change.” IAF, Tab 9 at 41. Among other things, he alleged that
his supervisor made inappropriate comments during a disagreement, asked for a2
welfare check on him when he failed to show up for work, and failed to secure
him a chair with neck support as a reasonable accommodation. Id. at 41-42. On
or about that same day, the agency temporarily reassigned the appellant while it
reviewed his allegations. Id. at 13. A few days later, the appellant submitted
additional allegations, including that his former direct supervisor had violated the
Health Insurance Portability and Accountability Act (HIPAA) by accessing his
protected health information when she coordinated the welfare check on him. Id.
at 34. On July 6, 2022, the appellant filed a privacy complaint with the agency’s
privacy officer alleging that the agency violated his rights under HIPAA on
multiple occasions. IAF, Tab 1 at 5, 8. By email dated July 7, 2022, the office of
the Director notified the appellant that it had not been able to “substantiate any
policy violations” and informed him that he was being returned to his position of
hire under his former direct supervisor and offered mediation in addition to
addressing his other concerns. Id. at 9.
The appellant filed the instant appeal with the Board that same day.
Id. at 1. He alleged that the agency prematurely closed an open investigation into
suspected HIPAA violations and that “the VA [was] railroading [him] into a
position without any consideration of the law and in retaliation for [his] reporting
of the suspected HIPAA violation.” Id. at 5. The administrative judge issued a
general acknowledgement order informing the appellant that the Board may not
have jurisdiction over his appeal and ordering him to file evidence and argument
as to jurisdiction. IAF, Tab 2 at 2-4. The appellant responded, reasserting that
the agency had retaliated against him for his privacy and disruptive behavior
complaints when it reassigned him back to his original supervisor. IAF, Tab 3.
The appellant subsequently notified the administrative judge that, by letter dated
July 11, 2022, the agency informed him that it was terminating his temporary
appointment effective July 24, 2022, due to his interacting with staff in a manner
that was disrespectful and not in accordance with the agency’s values. IAF,
Tab 5 at 3, Tab 6 at 4, 8. Thereafter, the agency filed a motion to dismiss the3
appeal for lack of jurisdiction, arguing that the appellant was a probationary
employee and not an “employee” under 5 U.S.C. § 7511(a)(1), and that he did not
allege grounds for jurisdiction under Office of Personnel Management regulations
providing limited appeal rights for probationary employees. IAF, Tab 7. The
appellant replied, arguing that he had alleged discrimination based on his marital
status and for partisan political reasons. IAF, Tab 8.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial
Decision (ID) at 1, 5. The administrative judge found that, based on the language
of 5 C.F.R. § 316.402(b)(4), the legal authority cited for the appellant’s
provisional appointment, and Board caselaw, the appellant was not serving a
probationary or trial period when his appointment was terminated and thus the
regulations providing probationary employees with limited appeal rights were not
applicable. ID at 4. She then concluded that the appellant did not meet the
definition of an “employee” with Board appeal rights and that, in the absence of
an otherwise appealable matter, the Board did not have jurisdiction over his claim
of retaliation for engaging in protected activity. ID at 4-5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He makes several arguments, including that the administrative judge
made errors of law, erred in admitting late filings and ignoring his motion for
sanctions, and omitted material facts from her statement of the case. Id. at 4-14.
The agency has filed a response. PFR File, Tab 3. The appellant has filed a
reply. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the Board lacks jurisdiction over the
termination of the appellant’s temporary appointment.
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 Board does not have4
jurisdiction over all matters involving a Federal employee that are allegedly
unfair or incorrect. Johnson v. U.S. Postal Service , 67 M.S.P.R. 573, 577 (1995).
Whether an individual in the competitive service has the right to appeal an
adverse action depends on whether he is an “employee” under 5 U.S.C. § 7511(a)
(1)(A). See Walker v. Department of the Army , 119 M.S.P.R. 391, ¶ 5 (2013).
Title 5 U.S.C. § 7511(a)(1)(A) defines an “employee” as an individual in the
competitive service who (i) is not serving a probationary or trial period under an
initial appointment, or (ii) 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). The two prongs of the statutory definition are distinct and
provide alternatives by which an individual may be found to be an employee with
appeal rights. McCormick v. Department of the Air Force , 307 F.3d 1339,
1342-43 (Fed. Cir. 2002). However, a temporary appointee who lacks the
requisite length of service to satisfy subsection (A)(ii) does not have adverse
action appeal rights merely because he meets the literal terms of subsection (A)
(i); the Board has consistently held that a temporary appointee is an “employee”
with appeal rights under 5 U.S.C. § 7511(a)(1) only if at the time of the action he
had 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less. Johnson v. Department of Veterans Affairs ,
99 M.S.P.R. 362, ¶¶ 4-7 (2005). Probationary employees in the competitive
service who do not satisfy either definition may nevertheless have the right to
appeal a termination to the Board under 5 C.F.R. §§ 315.805-.806 by showing
that the termination was based on marital status or partisan political reasons, or
that the action was procedurally improper. Tarr v. Department of Veterans
Affairs, 115 M.S.P.R. 216, ¶ 10 (2010).
If the appellant in an adverse action appeal 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 a5
preponderance of the evidence.2 Garcia v. Department of Homeland Security ,
437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). Before dismissing an appeal for
lack of jurisdiction, an administrative judge must provide an appellant with
explicit information on what is required to establish an appealable jurisdictional
issue and an opportunity to meet that burden. Burgess v. Merit Systems
Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985).
Here, the appellant’s SF-50 states that his provisional appointment was
made under 5 C.F.R. § 316.402(b)(4). IAF, Tab 1 at 7. Title 5 C.F.R. part 316,
subpart D is entitled “Temporary Limited Employment,” and the cited provision
provides procedures for making noncompetitive temporary appointments for
veterans with compensable service-connected disabilities of 30 percent or more.
5 C.F.R. § 316.402(b)(4). As the administrative judge correctly stated in the
initial decision, the Board held in Tschumy v. Department of Defense ,
104 M.S.P.R. 488, ¶ 14 (2007), that there is nothing in the Board’s regulations or
elsewhere that requires individuals appointed under 5 C.F.R. part 316, subpart D
to serve a probationary period or a trial period. ID at 4. As such, we agree with
her that the appellant was not serving a probationary or trial period when his
appointment was terminated and that the regulations providing limited appeal
rights for probationary employees, and the appellant’s arguments on this point,
are inapplicable and immaterial. ID at 4; IAF, Tab 8; PFR File, Tab 1 at 11. The
appellant’s bare assertion on review that the administrative judge erroneously
relied on Tschumy is unavailing. PFR File, Tab 1 at 10.
We also agree with the administrative judge’s conclusion that the appellant
failed to nonfrivolously allege that he is an “employee” with Board appeal rights
under 5 U.S.C. § 7511(a)(1)(A). ID at 3-5. Because the administrative judge did
2 The appellant argues on review that the administrative judge improperly flipped the
burden of proof from nonfrivolous to a preponderance of the evidence standard. PFR
File, Tab 1 at 13. This assertion is without merit, however, as the administrative judge
clearly applied the nonfrivolous standard in concluding that the appellant “failed to
assert a nonfrivolous allegation of Board jurisdiction over his appeal.” ID at 3, 5.6
not make clear findings as to 5 U.S.C. § 7511(a)(1)(A)(i) and (ii), however, we
supplement her analysis herein. ID at 4. In this case, although the appellant may
meet the literal terms of 5 U.S.C. § 7511(a)(1)(A)(i) because, as discussed above,
he was not serving a probationary or trial period under an initial appointment at
the time of his separation, he failed to nonfrivolously allege that he had
completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less, which is dispositive. See Johnson,
99 M.S.P.R. 362, ¶¶ 4-7. The appellant’s appointment SF-50 expressly states that
the appointment was “temporary” and not to exceed June 20, 2023. IAF, Tab 1
at 7. The appointment was made under 5 C.F.R. § 316.402(b)(4), and
appointments made under this subpart are generally not made for more than
1 year. Id.; 5 C.F.R. § 316.401(c). Although the appellant’s appointment SF-50
stated that the appellant would be “eligible for conversion to career-conditional
[appointment] one pay period after [his enter on duty] date,” both the SF-52
requesting the termination of his appointment and the agency’s termination letter
refer to his appointment as “temporary.” IAF, Tab 1 at 7, Tab 6 at 8, Tab 9 at 9.
Further, we note for argument’s sake that there is no evidence in the record
indicating that the appellant had service under prior appointments that could
count toward the completion of the year of current continuous service sufficient
to bring him within the definition of an “employee.”3 See Tschumy, 104 M.S.P.R.
3 The appellant stated on his initial appeal form that he had 4 years of Government
service; however, there is no documentation in the record to support this. IAF, Tab 1
at 1. The appellant’s appointment SF-50 lists his service computation date as April 20,
2020, but this appears to account for a notation that states that the appellant had
2 years, 1 month, and 29 days of creditable military service. Id. at 7. “Current
continuous service” does not include military service. Wilder v. Merit Systems
Protection Board , 675 F.3d 1319, 1322-23 (Fed. Cir. 2012 ). The record also contains
the appellant’s SF-144 Statement of Prior Federal Service in which he indicates that his
resume lists all of his Federal civilian service. IAF, Tab 9 at 47. The appellant’s
resume reflects that he worked for the Department of Justice as a Summer Law Intern
from April 2018, until August 2018, and as a Law Clerk from September 2019, until
October 2019. Id. at 49-50. However, the Board has held that, for competitive service
employees, “current continuous service” means a period of employment or service
immediately preceding an adverse action without a break in Federal civilian7
488, ¶ 9 n.4. Accordingly, at the time of his separation, the appellant had not
completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less. He was therefore not an “employee” under
5 U.S.C. § 7511 with appeal rights to the Board, and the administrative judge
properly found that the Board lacks jurisdiction over the termination of his
temporary appointment. ID at 5.
On review, the appellant claims that the administrative judge failed to
properly notify him of what he had to do to establish that he was an “employee”
with Board appeal rights. PFR File, Tab 1 at 13-14. As noted above, an appellant
must receive explicit information on what is required to establish Board
jurisdiction before his claim is dismissed for lack of jurisdiction. Burgess, 758
F.2d at 643-44. However, an administrative judge’s failure to provide an
appellant with a proper Burgess notice can be cured if the agency’s pleadings
contain the notice that was otherwise lacking, or if the initial decision puts the
appellant on notice of what he must do to establish jurisdiction, thus affording
him the opportunity to meet his burden on petition for review. Harris v. U.S.
Postal Service, 112 M.S.P.R. 186, ¶ 9 (2009). Here, the administrative judge did
not issue a jurisdictional or other order meeting the Burgess requirements.
However, the agency’s motion to dismiss asserted that the Board lacked
jurisdiction over the appeal and adequately discussed how to establish
“employee” status under 5 U.S.C. § 7511. IAF, Tab 7. The appellant responded
to the agency’s motion but did not discuss 5 U.S.C. § 7511(a)(1)(A)(i) or (ii).
IAF, Tab 8. Further, the initial decision restated these requirements, albeit
briefly, and properly notified the appellant of the legal authority cited for his
temporary appointment and that the regulations providing probationary employees
with limited appeal rights were not applicable to him. ID at 3-4. The appellant
employment of a workday. Ellefson v. Department of the Army , 98 M.S.P.R. 191, ¶ 14
(2005); see 5 C.F.R. § 752.402. 8
was therefore placed on notice of the chapter 75 jurisdictional question in this
case and provided an opportunity to address the issue.
We forward the appellant’s whistleblower reprisal claim for further proceedings
because the appellant did not receive explicit notice of what is required to
establish Board jurisdiction.
Although we find that the appellant received adequate notice of what was
required to establish Board jurisdiction under 5 U.S.C. chapter 75, we find that
the instant appeal needs to be forwarded to the regional office for further
proceedings based on the appellant’s whistleblower retaliation claim.
As discussed above, on his initial appeal form, although the appellant indicated
that he did not file a whistleblowing complaint with the Office of Special Counsel
(OSC), he alleged that the agency reassigned him back to his original supervisor
“in retaliation for [his] reporting of the suspected HIPAA violation.” IAF, Tab 1
at 4-5. He reiterated that claim in detail in his jurisdictional response, indicating
that he made a protected disclosure under 5 U.S.C. § 2302(b)(8), and he has
renewed this claim on review. IAF, Tab 3 at 5-6; PFR File, Tab 1 at 11-12. As
the administrative judge noted in her initial decision, the Board lacks jurisdiction
over a whistleblower reprisal claim raised as an affirmative defense unless it is
raised in connection with an otherwise appealable action.4 ID at 5; see Wren v.
Department of the Army , 2 M.S.P.R. 1, 2 (1980) (finding 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). The appellant
has not shown that the Board has jurisdiction over the termination of his
temporary appointment for the reasons discussed above, and the Board therefore
lacks jurisdiction over the appellant’s whistleblower reprisal claims in that
context.
Nevertheless, the Board may consider the appellant’s whistleblower
reprisal claim in an IRA appeal if he satisfies the jurisdictional requirements. See
4 For this reason, the Board lacks jurisdiction over the appellant’s claim that the agency
terminated him because of his disabilities. PFR File, Tab 1 at 11; IAF, Tab 6 at 5. 9
Neice v. Department of Homeland Security , 105 M.S.P.R. 211, ¶¶ 13-14 (2007)
(finding that, although the Board lacked jurisdiction over the appellant’s
resignation as an otherwise appealable action, the Board would consider any
whistleblower reprisal claims that satisfied the jurisdictional requirements of
an IRA appeal). However, the administrative judge did not notify the appellant of
the jurisdictional requirements for an IRA appeal in her acknowledgement order
or in the initial decision, and neither the agency’s motion to dismiss nor its other
filings cured that defect. IAF, Tab 2, Tab 7; see Burgess, 758 F.2d at 643-44;
Harris, 112 M.S.P.R. 186, ¶ 9. The appellant needs to be advised that to establish
Board jurisdiction over an IRA appeal, he must show that he exhausted his
administrative remedies before OSC and make nonfrivolous allegations of the
following: (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)
(8) or engaged in protected activity as specified in 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). 5 U.S.C. §§ 1214(a)(3), 1221(a), (e)(1); Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). Because the appellant
was not so informed, it is necessary to FORWARD his whistleblower retaliation
allegation to the Board’s Northeastern Regional Office for docketing as an IRA
appeal and for further adjudication in accordance with this Final Order.5
5 We have considered the appellant’s remaining arguments, including his claims that the
administrative judge improperly ignored his motion for sanctions, improperly relied on
the late-filed agency file, erroneously omitted material facts from her statement of the
case, and his suggestion that the administrative judge was biased towards the agency.
PFR File, Tab 1 at 4-14. However, we find that these arguments do not present a basis
for granting the appellant’s petition for review. See 5 C.F.R. § 1201.115.10
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.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.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. 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 | Feehan_MatthewPH-3443-22-0265-I-1__Final_Order.pdf | 2024-05-03 | MATTHEW FEEHAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-3443-22-0265-I-1, May 3, 2024 | PH-3443-22-0265-I-1 | NP |
1,555 | https://www.mspb.gov/decisions/nonprecedential/Brown_Constance_G_DC-0752-17-0799-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONSTANCE GERALDINE BROWN,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
DC-0752-17-0799-I-1
DATE: May 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Constance Geraldine Brown , Alexandria, Virginia, pro se.
Jose Ortiz , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her 30-day suspension. 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
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 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 analysis of the insubordination charge, we
AFFIRM the initial decision.
BACKGROUND
The agency employed the appellant as a Contract Specialist in the
Acquisition and Contracting Office of its Federal Aviation Administration (FAA).
Initial Appeal File (IAF), Tab 6 at 4. Her duties included administering the
FAA’s contract with Global Engineering & Management Services (GEMS). Id.
at 18. The GEMS contract provides contractor support for the FAA’s Next
Generation Air Transportation System (NextGen) program, which is one of the
FAA’s top priorities. IAF, Tab 7 at 42.
On July 10, 2017, the agency proposed the appellant’s suspension for
30 calendar days based on the charge of insubordination. IAF, Tab 6 at 18-21.
Specifically, the agency alleged that the appellant refused to sign a GEMS
contract modification authorizing the hiring of contractor support staff for the
NextGen program because she believed that doing so would violate a January 23,
2017 Presidential Memorandum2 instituting a Federal hiring freeze.3 Id. at 18.
2 The parties at times incorrectly refer to the January 23, 2017 issuance by the President
as an Executive Order, but it was issued as a Presidential Memorandum. IAF, Tab 25
at 30-31.
3 The appellant first refused to sign the contract modification in February 2017,
resulting in a 14-day suspension, which she served from April 4 through April 17, 2017.2
The agency attached evidence to its proposal notice showing that the appellant
sought and received advice from managers and legal opinions from attorneys
within the FAA’s Office of Chief Counsel who determined that performing the
contract modification as requested would not violate the Presidential
Memorandum that instituted the hiring freeze. Id. at 22-46. The agency
additionally attached an April 12, 2017 memorandum that lifted the President’s
hiring freeze. Id. at 48-49. The appellant replied to the proposal notice,
reiterating her belief that the hiring of contractor support staff as requested would
violate the President’s hiring freeze. Id. at 16. She also argued that she already
had been disciplined for the same action. Id. at 15. After considering her reply,
the deciding official sustained the 30-day suspension, effective August 31
through September 29, 2017. Id. at 6-9.
The appellant filed an appeal of the suspension and requested a hearing.
IAF, Tab 1 at 2-3. During the proceedings below, however, she refused to
participate in discovery. IAF, Tab 19. Consequently, the administrative judge
granted the agency’s motion for sanctions concerning discovery. Id. Thereafter,
the appellant failed to attend the prehearing conference or file a prehearing
submission. IAF, Tab 24. As a result, the administrative judge canceled the
hearing, notified the appellant that the appeal would be decided on the written
record, and provided the parties an opportunity to submit additional evidence
prior to the close of the record. Id. In response, the agency filed a closing brief.
IAF, Tabs 25-26.
Based on the written record, the administrative judge issued an initial
decision affirming the 30-day suspension. IAF, Tab 29, Initial Decision (ID).
She found that the appellant’s refusal to sign the contract modification constituted
insubordination and that the agency proved its charge. ID at 4-6. She further
found that the penalty was within the bounds of reasonableness. ID at 7. As to
the appellant’s claim that the suspension was duplicative considering she already
IAF, Tab 7 at 4, 6. 3
had served a 14-day suspension for failing to execute the same contract, the
administrative judge found that the agency’s use of progressive discipline in the
hope of rehabilitating the appellant did not give her license to repeat her
misconduct with impunity once she had been disciplined for her first offense. ID
at 6-7. The administrative judge also found that, although the appellant’s refusal
related to the same contract, there were two or more separate and distinct
incidents in which she knowingly refused to follow orders. ID at 7. She reasoned
that the appellant’s belief that, once she served the first suspension, she was
immune from discipline for future repeated misconduct was unfounded as well as
nonsensical. Id.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded in opposition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
Insubordination is the willful and intentional refusal to obey an authorized
order of a superior officer that the officer is entitled to have obeyed. See Parbs v.
U.S. Postal Service , 107 M.S.P.R. 559, ¶ 13 (2007), aff’d per curiam ,
301 F. App’x 923 (Fed. Cir. 2008). It requires proof of intent, which is a state of
mind that generally is proven by circumstantial evidence in the context of an
insubordination charge. Id. Unless the order is clearly unlawful, an employee
must first obey the order and then challenge its validity—even when there is
substantial reason to believe that an order is improper—except in extreme or
unusual circumstances in which the employee would be placed in a clearly
dangerous situation or which would cause her irreparable harm. Pedeleose v.
Department of Defense , 110 M.S.P.R. 508, ¶¶ 16-18, aff’d, 343 F. App’x 605
(Fed. Cir. 2009); see Parbs, 107 M.S.P.R. 559, ¶ 19. This rule reflects the
fundamental management right to expect that its decisions will be obeyed and its
instructions carried out. Pedeleose, 110 M.S.P.R. 508, ¶ 16. 4
Here, the administrative judge properly found, and the appellant does not
dispute, that the appellant willfully and intentionally refused the agency’s order
to execute the contract. ID at 6. She further found that, even if the appellant
believed the order to be unlawful, she should have followed the order and taken
steps to challenge its validity through the appropriate internal channels. Id.
Although the appellant generally disagrees with this determination on review, she
has shown no basis to disturb it. PFR File, Tab 1 at 1-2. Specifically, she has
failed to show that the agency’s order was clearly unlawful. Indeed, the
appellant’s only objection to obeying the order was her belief that it violated the
January 23, 2017 Presidential Memorandum instituting a hiring freeze, which she
concedes had since been lifted. Id. at 2; IAF, Tab 6 at 49. Moreover, she had
received legal opinions from the FAA’s Office of Chief Counsel informing her
that the agency’s order did not violate the January 23, 2017 Presidential
Memorandum. IAF, Tab 6 at 28-29. Further, she has failed to show that
executing the contract would have placed her in a clearly dangerous situation or
caused her irreparable harm. Under these circumstances, the appellant was not
justified in refusing to obey the order, and the administrative judge correctly
sustained the charge of insubordination. See Bowen v. Department of the Navy ,
112 M.S.P.R. 607, ¶ 15 (2009) (finding that, even when the appellant believed
that an order was improper because the agency had not complied with its labor
relations obligations, he still was required to first comply with the order and then
register his complaint or grievance), aff’d, 402 F. App’x 521 (Fed. Cir. 2010).
On review, the appellant continues to argue that she is being disciplined
twice for the same misconduct. PFR File, Tab 1 at 1-2. We are not persuaded by
this argument, however, because the appellant’s misconduct here, although
relating to the same contract, is separate and distinct from the misconduct for
which she served a 14-day suspension. See Bowen, 112 M.S.P.R. 607, ¶ 13
(finding that a letter of reprimand for misconduct committed on March 6, 2008,
was distinguishable from a removal proposal based on insubordinate conduct on5
different dates in February and March of 2008). In addition, we find that the
administrative judge properly concluded that the suspension penalty was within
the bounds of reasonableness.4 ID at 7 (citing Redfearn v. Department of Labor ,
58 M.S.P.R. 307, 316 (1993)).
Accordingly, we affirm the 30-day suspension.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
4 When the appellant engaged in the conduct at issue here, 5 U.S.C. § 2302(b)(9)(D)
made it a prohibited personnel practice to take an action against an employee for
“refusing to obey an order that would require the individual to violate a law.” IAF,
Tab 6 at 18. On June 14, 2017, after the appellant engaged in the conduct at issue here
but before the agency issued the notice of a proposed 30-day suspension, the President
signed into law the Follow the Rules Act, which amended section 2302(b)(9)(D) by
making it a prohibited personnel practice to take an action against an employee for
“refusing to obey an order that would require the individual to violate a law, rule, or
regulation.” Pub. L. No. 115-40, 131 Stat. 861 (2017). Regardless of which section
2302(b)(9)(D) applies, and even if the January 23, 2017 Presidential Memorandum
constituted a law, rule, or regulation under the applicable section, we find that the
agency’s order was lawful because the hiring freeze instituted by the January 23, 2017
Presidential Memorandum was lifted on April 12, 2017, and, thus, not in effect when
the appellant was given the order to execute the contract modification at issue. IAF,
Tab 6 at 48-49. Accordingly, to the extent that the appellant contends that the agency
committed a prohibited personnel practice and violated the Whistleblower Protection
Enhancement Act of 2012 when it ordered her to execute the contract modification, we
find the argument unavailing.
5 On review, the appellant submits alleged new evidence in the form of an email
communication dated January 30, 2017, and the initial decision in this matter. PFR
File, Tab 1 at 3-19. However, this evidence is included in the record below and
provides no basis to disturb the initial decision. IAF, Tab 25 at 38-39; ID; see Meier v.
Department of the Interior , 3 M.S.P.R. 247, 256 (1980 ) (holding that evidence that is
already a part of the record is not new).
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.6
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. 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.
(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 the8
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.7 The court of appeals must receive your petition for
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 of9
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. 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 | Brown_Constance_G_DC-0752-17-0799-I-1__Final_Order.pdf | 2024-05-03 | CONSTANCE GERALDINE BROWN v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-0752-17-0799-I-1, May 3, 2024 | DC-0752-17-0799-I-1 | NP |
1,556 | https://www.mspb.gov/decisions/nonprecedential/Gelin_YvesNY-0752-23-0038-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YVES GELIN,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
NY-0752-23-0038-I-1
DATE: May 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Yves Gelin , Yonkers, New York, pro se.
Ariya McGrew , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND 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 for the
delay. For the reasons set forth herein, we GRANT the appellant’s petition for
review. We VACATE the initial decision and REMAND the matter to the New
York Field Office for a hearing on the timeliness issue.
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).
ANALYSIS
If an appellant can establish a factual dispute as to whether he timely filed
his appeal and he requested a hearing, he is entitled to a timeliness hearing.
Nelson v. U.S. Postal Service , 88 M.S.P.R. 331, ¶ 5 (2001). Here, the appellant
argued below that he first received the agency’s final agency decision (FAD)
when he contacted the agency and requested it on December 20, 2022, and denied
that he received it when the agency first sent it by email on September 7, 2022.
Initial Appeal File (IAF), Tab 10 at 11. He reasserts these arguments on review.
Petition for Review (PFR) File, Tab 1 at 1. The appellant also asserts that the
email address that the FAD was sent to differs from the address he provided to
the agency. PFR File, Tab 4 at 3; see IAF, Tab 12 at 4-5 (sworn affidavit from
the agency explaining why the email address identified on the certificate of
service for the FAD differs from the address to which the agency actually sent the
FAD). Finally, in support of his claim that he did not receive the FAD on
September 7, 2022, the appellant provided an email demonstrating that he
contacted the agency on December 16, 2022, and inquired about the status of his
FAD. IAF, Tab 10 at 3.
The appellant filed his Board appeal challenging his removal on
December 21, 2022.2 The date that the appellant received the FAD determines
the date by which he was required to file his Board appeal challenging the FAD.
See Williams v. U.S. Postal Service , 115 M.S.P.R. 318, ¶ 7 (2010) (noting that an
employee who files a timely formal complaint of discrimination with his
employing agency regarding a matter that is within the Board’s jurisdiction may
also file an appeal with the Board, and that to be considered timely, the appeal
2 The administrative judge determined that the appellant’s Board appeal was filed on
January 6, 2023, but that finding was in error. IAF, Tab 14, Initial Decision at 1. The
envelope containing the appellant’s Board appeal is postmarked December 21, 2022,
and so that is the date his appeal is deemed filed. IAF, Tab 1 at 28; see 5 C.F.R.
§ 1201.4(l) (“The date of filing by mail is determined by the postmark date.”).2
must be filed within 30 days after the employee receives the FAD); 5 C.F.R.
§ 1201.154(b)(1).
The administrative judge did not issue an order on timeliness and so the
appellant was not provided with specific notice of his burden to establish the
timeliness of his appeal. See Farooq v. Corporation for National and Community
Service, 109 M.S.P.R. 73, ¶ 12 (2008) (noting that before an appeal can be
dismissed on timeliness grounds, the appellant must receive notice of the specific
timeliness issue presented by the circumstances of his case); see also Schorr v.
Department of the Navy , 79 M.S.P.R. 594, ¶¶ 12-13 (1998) (stating that the
appellant “cannot be expected to fight a fog of generality” and that he must be put
on clear notice of the timeliness issue and given a full opportunity to litigate it)
(quoting Hamilton v. Merit Systems Protection Board , 75 F.3d 639, 646 (Fed. Cir.
1996)). Because the appellant has raised a factual dispute regarding when he first
received the FAD, and consequently, whether his Board appeal was timely filed
on December 21, 2022, he is entitled to a hearing on the timeliness issue. IAF,
Tab 5; Nelson, 88 M.S.P.R. 331, ¶ 5; see Stout v. Merit Systems Protection Board ,
389 F.3d 1233, 1241 (Fed. Cir. 2004) (“[T]he [administrative judge] must . . .
inform the appellant that he is entitled to . . . a [timeliness] hearing upon a
showing of a factual dispute material to the issue of timeliness.”). Given these
circumstances, we remand the appeal for the administrative judge to conduct a
timeliness hearing.3
ORDER
For 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.4 | Gelin_YvesNY-0752-23-0038-I-1__Remand_Order.pdf | 2024-05-03 | YVES GELIN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. NY-0752-23-0038-I-1, May 3, 2024 | NY-0752-23-0038-I-1 | NP |
1,557 | https://www.mspb.gov/decisions/nonprecedential/Lopez_Arturo_S_DA-0752-18-0107-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARTURO S. LOPEZ,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-18-0107-I-1
DATE: May 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Raul B. Castorena , Laughlin AFB, Texas, for the appellant.
Charles R. Vaith , Esquire, and Caroline H. Greenfield , Esquire, Randolph
AFB, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed 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).
2
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 administrative judge’s analysis concerning the appellant’s affirmative
defense of reprisal for whistleblowing, we AFFIRM the initial decision.
The agency removed the appellant based on a single charge of Falsification
of an Official Government Document in that, on August 10, 2015, he falsely
answered “no” to a question on his Official Form (OF) 306 about being fired from
a position within the last 5 years. Initial Appeal File (IAF), Tab 6 at 75, 87. The
appellant completed his OF-306 using the agency’s online e-QIP system, and he
alleged that the system locked him out before he was finished and somehow
recorded an incorrect answer. Hearing Compact Disc (HCD) (testimony of the
appellant); Petition for Review (PFR) File, Tab 1 at 9-11. The administrative
judge found that the appellant’s testimony was not credible. IAF, Tab 41, Initial
Decision (ID) at 9-10. She noted in particular that the OF-306 afforded the
appellant the opportunity to provide additional information to several yes/no
questions and that he in fact had done so for a question about the employment of
his relatives, but not for his own employment history. ID at 9. The appellant has
not proffered a sufficiently sound reason to set aside the administrative judge’s
credibility determinations in this case. See Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) .
On review, the appellant contends for the first time that “[t]he issue they
have brought up concerning the Form 306 is a . . . lie” because he informed his
3
second-line supervisor in October or November 2015 that he had been fired from
his contractor position. PFR File, Tab 1 at 2, 8. The appellant, who was
represented by an attorney at the time, did not raise this claim in his response to
the notice of proposed removal, IAF, Tab 6 at 79-81, and he did not raise this
claim before the administrative judge. 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 contended below that the agency violated the collective
bargaining agreement when it failed to interview him during its investigation into
his misconduct. However, the administrative judge correctly found that the
relevant contract provision required the agency to “ascertain all pertinent facts for
and against the employee,” but did not require an investigatory interview. ID
at 15-16; IAF, Tab 6 at 14.
The appellant contended below and continues to argue on review that the
agency committed harmful error by failing to serve him with the notice of
removal. PFR File, Tab 1 at 4. The appellant stated on his appeal form that he
received the decision notice on November 2, 2017, IAF, Tab 1 at 5, a full 3 weeks
earlier than he testified. ID at 17. Moreover, the appellant received his notice
and filed a timely appeal, so any error was not harmful.
The appellant contends for the first time on review that the agency violated
his due process rights when it did not give him notice and an opportunity to
respond to the Douglas2 factors that the deciding official considered aggravating.
PFR File, Tab 1 at 8. The appellant was on notice that the deciding official
completed a Douglas factors worksheet at least since the agency submitted its file
in this case. IAF, Tab 6 at 22-31. He has not, however, explained why he did not
raise this argument below and, therefore, the Board need not consider it. See
Banks, 4 M.S.P.R. at 271.
2 Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981).
4
The appellant contended that the removal action constituted retaliation for
his prior equal employment opportunity (EEO) activity and for filing Inspector
General (IG) complaints (i.e., for whistleblowing). To establish a claim of
retaliation for protected EEO activity, 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. Here,
the administrative judge correctly found that both the proposing and deciding
officials were aware of the appellant’s relatively recent EEO activity. She also
found that they both testified credibly that the appellant’s EEO activity did not
weigh into their decision to propose and effect the removal action. ID at 14. The
appellant made no effort to elicit testimony from either witness that might have
shown a retaliatory motive, and he introduced no circumstantial evidence of
retaliation. Instead, he relies solely on his supervisors’ awareness of his EEO
complaint as proof of retaliation. The administrative judge correctly found that
the appellant’s unsupported claims did not show EEO retaliation.3
In whistleblower claims involving an otherwise appealable action, once the
agency proves its case, as it has done here, the appellant must show by
preponderant evidence that he engaged in protected whistleblowing activity, and
that the disclosure or activity was a contributing factor in the agency’s personnel
action. Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 39 (2016). If
the appellant makes a prima facie case of reprisal for whistleblowing, the burden
shifts to the agency to show by clear and convincing evidence that it would have
taken the same action absent any protected activity. Id.
The appellant engaged in two types of protected activity under
5 U.S.C. § 2302(b)(9)(C). He filed several IG complaints and he filed a
complaint with the Office of Special Counsel (OSC). The administrative judge
3 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 decision. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.
5
found that, assuming that the appellant disclosed information he reasonably
believed evidenced a violation of law, rule, or regulation, gross mismanagement,
a gross waste of funds, or a substantial and specific danger to public health or
safety, he failed to show that his activity was a contributing factor in the removal
action. ID at 12. We find that the administrative judge’s reasoning was flawed.
First, the appellant’s IG and OSC complaints are protected under
5 U.S.C. § 2302(b)(9)(C). The protection contained in § 2302(b)(9)(C) is for the
activity of going to the IG or OSC. Corthell v. Department of Homeland
Security, 123 M.S.P.R. 417, ¶ 11 (2016), overruled on other grounds by Requena
v. Department of Homeland Security , 2022 MPSB 39. The subject matter of the
appellant’s complaints need not concern matters protected under § 2302(b)(8) to
be protected under § 2302(b)(9)(C). Special Counsel v. Hathaway , 49 M.S.P.R.
595, 612 (1991), recons. denied, 52 M.S.P.R. 375 (1992), aff’d, 981 F.2d 1237
(Fed. Cir. 1992), abrogation on other grounds recognized by Special Counsel v.
Santella, 65 M.S.P.R. 452 (1994). Thus, the administrative judge’s mention of
the reasonable belief test and the types of disclosures protected under § 2302(b)
(8) was not germane.
Second, the administrative judge found that the deciding official was
“unaware of complaints to the Inspector General or Office of Special Counsel,
although he knew the appellant had made some complaints about safety.” ID
at 12. Based on the deciding official’s lack of knowledge, she found that the
appellant failed to prove contributing factor. However, she later found that the
proposing and deciding officials “testified that they knew the appellant had filed
Inspector General and EEO complaints.” ID at 14. This second statement was
incorrect. The deciding official testified that he was not aware of any IG
complaints, only of some safety complaints. HCD (testimony of the deciding
official). The proposing official testified that he was aware of EEO complaints
but not IG or OSC complaints and did not mention safety complaints. HCD
(testimony of the proposing official).
6
In an October 21, 2016 IG complaint, the appellant reported noncompliance
with various directives and falsifying aircraft maintenance forms. IAF, Tab 23
at 9. In a January 14, 2017 IG complaint, he reported employees falsely signing
off on aircraft maintenance tasks that had not actually been performed. Id. at 8.
In an October 3, 2017 IG complaint, the appellant alleged that an aircraft being
towed crashed into a parked aircraft because management did not properly train
employees how to tow aircraft and did not properly supervise the maneuver. Id.
at 5. In his OSC complaint, he reported that he disclosed, inter alia, aircraft
safety air-worthiness, jeopardizing pilot safety, and falsifying maintenance
records. Id. at 10. The appellant’s IG and OSC complaints are protected
regardless of their subject matter, and we find that they can fairly be
characterized as complaints pertaining to safety, among other things. However,
although the record shows that the deciding official was aware that the appellant
made safety complaints, there is no evidence that he was aware that the appellant
made safety complaints, or any other types of complaints, to either the IG or
OSC.
An employee may demonstrate that a disclosure was a contributing factor
in a covered personnel action through circumstantial evidence, such as the acting
official’s knowledge of the disclosure and the timing of the personnel action.
Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may
also 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. Id. Here, because the protection
contained in § 2302(b)(9)(C) is for the activity of going to the IG or OSC, see
Corthell, 123 M.S.P.R. 417, ¶ 11, and because the appellant has not shown that
the deciding official was specifically aware, or had constructive knowledge, of
7
either the appellant’s IG activity or his OSC activity, the appellant has not
established contributing factor through the knowledge/timing test.4
When, as here, all of the agency’s charges are 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. Ellis v. Department of Defense , 114 M.S.P.R. 407, ¶ 11
(2010). 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. Id. The Board will modify or mitigate an agency-imposed penalty
only when it finds the agency failed to weigh the relevant factors or the penalty
clearly exceeds the bounds of reasonableness. Id.
As noted above, the deciding official testified that he considered the
appellant’s misconduct to be very serious because it showed that his certification
on aircraft maintenance forms could not be relied upon to show that the
maintenance had been performed and the aircraft was safe to fly. HCD
(testimony of the deciding official). The deciding official also considered that
the appellant had, within the previous year, been suspended for 5 days based on
charges of failure to observe safety practices (relating to his part in an accident
that happened when an aircraft was towed improperly) and disregard of
directives. Id.; IAF, Tab 6 at 61-64. The disregard of directives charge concerns
the appellant’s failure to complete aircraft maintenance forms and is therefore
similar to some extent to the misconduct for which he was removed.
4 An appellant may also establish contributing factor through 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). Even considering these other factors set forth in Dorney, we find that the
appellant has failed to establish contributing factor.
8
In addition, the deciding official completed a Douglas factors worksheet,
which he affirmed and adopted as his testimony at the hearing. HCD (testimony
of the deciding official); IAF, Tab 6 at 22-32. Therein, the deciding official
considered the following mitigating factors: The appellant’s 26 months of service
and satisfactory performance record and the absence of any notoriety surrounding
his misconduct. The penalty of removal is consistent with the agency’s table of
penalties. IAF, Tab 6 at 56.
The appellant reiterates on review his argument below that the agency
should not consider his 5-day suspension as an aggravating factor because he is
still litigating it in the EEO process. PFR File, Tab 1 at 3. However, an agency
may consider an employee’s past disciplinary record when setting a penalty for
misconduct, even if it is the subject of ongoing litigation. U.S. Postal Service v.
Gregory, 534 U.S. 1, 8-10 (2001); Suggs v. Department of Veterans Affairs ,
113 M.S.P.R. 671, ¶ 11 (2010), aff’d, 415 F. App’x. 240 (Fed. Cir. 2011).
Further, the suspension meets the Bolling criteria. See Bolling v. Department of
the Air Force, 9 M.S.P.R. 335, 339 -40 (1981) (holding 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). Therefore, the
agency properly considered the appellant’s prior disciplinary record. We find
that the deciding official considered the penalty factors most relevant to this case
and that the agency reasonably exercised its management discretion. The
appellant has not shown any error in the administrative judge’s finding that the
removal penalty was within the tolerable limits of reasonableness.
The appellant contends that the administrative judge disallowed his
witnesses and evidence, and that this constituted bias. PFR File, Tab 1 at 3. The
only witness he identifies is a local law enforcement official who the appellant
alleges investigated his IG complaints when the IG failed to take appropriate
9
action. Whether the appellant’s IG reports had any merit or whether
their substance concerned anything that would otherwise be protected under
5 U.S.C. § 2302(b)(8) is not relevant in this appeal. Further, the appellant made
no proffer about the allegedly disallowed evidence. Therefore, he has not shown
that the administrative judge’s rulings constituted an abuse of discretion.
Because his claim of bias rests solely on the administrative judge’s rulings
against him, his claim of bias fails. See Schneider v. Department of Homeland
Security, 98 M.S.P.R. 377, ¶ 7 (2005).
With his petition for review, the appellant submits a number of documents.
Some of these are annotated versions of documents that are already in the record.
Compare PFR File, Tab 1 at 14-15, 17, 20-21, with IAF, Tab 6 at 93-94, 103,
Tab 25 at 5-6. Evidence that is already a part of the record is not new .
Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980).
He also submits what he represents to be a video recording of a local
sheriff conducting investigatory interviews of his second- and third-level
supervisors. PFR File, Tab 2. The disc is undated and the appellant does not
provide a proffer of what relevant evidence the disc may contain. 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. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).
The remaining documents that the appellant submits for the first time on
review all pre-date the close of the record below. The appellant has not explained
why he could not have submitted them prior to the close of the record
below despite his due diligence; thus, the Board need not consider them. 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. Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980).
10
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.
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 any
12
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
13
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.
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. | Lopez_Arturo_S_DA-0752-18-0107-I-1__Final_Order.pdf | 2024-05-03 | ARTURO S. LOPEZ v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-0752-18-0107-I-1, May 3, 2024 | DA-0752-18-0107-I-1 | NP |
1,558 | https://www.mspb.gov/decisions/nonprecedential/Allen_CynthiaDA-0752-18-0011-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA ALLEN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-18-0011-I-1
DATE: May 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James R. O’Connor , Esquire, and Ryan Green , Esquire, Washington, D.C.,
for the appellant.
David V. Sorola , Esquire, Del Rio, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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 for “Submitting Inaccurate
Time and Attendance Records” and “Failure to Follow Procedures to Request
Leave.” Initial Appeal File (IAF), Tab 4 at 22-25, 71-73, Tab 42 at 5. On
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).
2
petition for review, the appellant argues that, although she submitted inaccurate
timesheets, she did not intend to deceive the agency. Petition for Review (PFR)
File, Tab 3 at 7-10. She further alleges that the agency improperly relied on ex
parte information, that the administrative judge failed to properly analyze witness
credibility, and that her removal constituted an excessive penalty. Id. at 11-18.
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 analysis of the appellant’s affirmative defenses of disparate
treatment disability discrimination and retaliation for engaging in protected
activity, we AFFIRM the initial decision.
We have considered the appellant’s arguments on review but find that they
do not warrant disturbing the initial decision. The administrative judge properly
considered the record as a whole, including the appellant’s proffered explanation
for her inaccurate timesheets, and reasonably concluded that she acted with the
requisite intent. IAF, Tab 45, Initial Decision (ID) at 17. The administrative
judge also thoroughly considered the appellant’s due process arguments and
reasonably concluded, based on a credibility determination, that the deciding
official did not rely on the letter of counseling in deciding to remove the
3
appellant. ID at 21-24. We find that the administrative judge conducted a proper
credibility analysis of the testifying witnesses and properly weighed the totality
of the testimonial and documentary evidence. ID at 20-21, 23-24. The weight of
the evidence supports the administrative judge’s findings, which are entitled to
deference. See, e.g., Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 5
(2011). Finally, the record reflects that, in sustaining the agency’s removal
action, the administrative judge considered the record as a whole, found that the
deciding official properly weighed the relevant factors, and agreed that removal
for the appellant’s conduct was reasonable and promoted the efficiency of the
service. ID at 26-29. As such, we find the appellant’s arguments in this regard
unavailing. See Kirkpatrick v. U.S. Postal Service , 74 M.S.P.R. 583, 591 (1997)
(explaining that the Board has long recognized that removal for falsification and
dishonest activity promotes the efficiency of the service because such behavior
raises serious doubts as to the appellant’s reliability, trustworthiness, and
continued fitness for employment).
Although not raised on review, we note that, in finding that the appellant
failed to prove her affirmative defenses of disability discrimination and
retaliation for engaging in protected activity, the administrative judge cited
Savage v. Department of the Army , 122 M.S.P.R. 612, ¶¶ 42, 51 (2015), overruled
in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 23-25. ID at 18-19. Subsequent to the initial decision, the Board issued
Pridgen, which clarified the standards applicable to these claims.
Here, the administrative judge more summarily concluded that “[she was]
not persuaded that retaliation and discrimination were the reasons for the agency
action” and that “the agency’s proffered reason for the action was the real reason
for the action.” ID at 20-21. Nevertheless, she specifically found, based on
reasoned credibility determinations, that neither the appellant’s alleged disability
nor her disclosure thereof played any part in her removal and that the appellant
offered nothing more than unsupported allegations as to her affirmative defenses.
4
ID at 19-20.2 To this end, the administrative judge explicitly concluded that all
of the agency officials involved in the contested agency action “credibly testified
that the appellant’s actions regarding her time and attendance records and leave
procedures were the only factors in the actions they took regarding the appellant.”
ID at 20 (emphasis added). 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 or retaliation was a “but-for” cause of the
agency’s decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.3
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
2 Although the initial decision references direct evidence and types of circumstantial
evidence, we find no indication that the administrative judge disregarded any evidence
because of its direct or circumstantial nature. ID at 19; see Gardner v. Department of
Veterans Affairs, 123 M.S.P.R. 647, ¶ 30 (2016), clarified by Pridgen , 2022 MSPB 31,
¶¶ 23-24.
3 As to the appellant’s affirmative defense of disability discrimination based on the
agency’s alleged failure to accommodate, the administrative judge concluded that, “to
the extent that the appellant [alleged as much],” her contention would be without merit
because, as soon as she informed her supervisor of her alleged disability, her supervisor
changed her work schedule as permitted. ID at 20 n.5. The appellant does not raise any
issues related to this affirmative defense on review, and we discern no reason to disturb
the administrative judge’s finding in this regard.
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
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. The
6
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
7
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,
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. | Allen_CynthiaDA-0752-18-0011-I-1__Final_Order.pdf | 2024-05-03 | CYNTHIA ALLEN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-18-0011-I-1, May 3, 2024 | DA-0752-18-0011-I-1 | NP |
1,559 | https://www.mspb.gov/decisions/nonprecedential/White_Glenn_H_SF-1221-22-0139-R-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLENN H. WHITE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-1221-22-0139-R-1
DATE: May 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Morris E. Fischer , Esquire, Silver Spring, Maryland, for the appellant.
Cary E. Zuk , Esquire, San Francisco, California, for the agency.
Molly Cross Surhoff , Esquire, Centennial, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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. On
February 14, 2024, we granted the appellant’s unopposed motion to withdraw his
petition for review. We hereby REOPEN this petition for review on our motion,
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).
2
pursuant to 5 U.S.C. § 7701(e)(1); see also Kling v. Department of Justice ,
2 M.S.P.R. 464, 468 (1980) (recognizing that the authorization of section 7701(e)
for the Board to reopen cases on its own motion, without the necessity of a
petition for review by any party or the Director of the Office of Personnel
Management, demonstrates a congressional intent to vest ultimate responsibility
for all Board adjudicative functions in the Board itself).
For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the initial decision, and REMAND the appeal to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is employed as a GS-13 Criminal Investigator with the
agency’s Immigration and Customs Enforcement (ICE), Homeland Security
Investigations (HSI) division in Honolulu, Hawaii. White v. Department of
Homeland Security , MSPB Docket No. SF-1221-22-0139-W-1, Initial Appeal File
(IAF), Tab 1 at 3, Tab 10 at 27, 49. According to the appellant, in 2017 his close
colleague filed a complaint against the Acting Deputy Special Agent in Charge
(SAC). IAF, Tab 1 at 10. Then, in April or May 2018, the appellant made an
abuse of position complaint against another individual, which also implicated the
Acting Deputy SAC. Id.
In or about January 2020, the agency selected a then-Special Agent for a
vacant Group Supervisor (GS) position in the HSI’s Public Safety Group in
Honolulu. IAF, Tab 12 at 30. According to the appellant, in February 2020, four
employees, including the appellant, complained to the Assistant Special Agent in
Charge (ASAC) about the Acting Deputy SAC’s “violations of hiring and/or
promotion practices” concerning the GS selection. IAF, Tab 10 at 10, 49.
Specifically, the appellant alleged that the Public Safety Group GS “shouldn’t
have been hired and was only there because of her close relationship with [the
National Security Group GS].” IAF, Tab 10 at 10. The complaint also concerned
3
the alleged “toxic morale,” “fraternization,” the preferential treatment of some
employees in the office, and the “close personal relationship” between the Acting
Deputy SAC, the Public Safety Group GS, and the National Security Group GS.
Id. This complaint appears to have been verbal. IAF, Tab 12 at 34.
On July 3, 2020, the appellant verbally submitted a complaint to ICE’s
Office of Professional Responsibility (OPR) Joint Intake Center regarding alleged
“nepotism, retaliation, waste, fraud and abuse” at the HSI Honolulu, and named
the Acting Deputy SAC as the subject of the complaint.2 IAF, Tab 10 at 55,
Tab 12 at 158-62. He appears to have memorialized that conversation on July 4,
2020, when he followed up with a written complaint to OPR accusing the Acting
Deputy SAC, the Public Safety Group GS, and the National Security Group GS,
among others, of engaging in “favoritism, nepotism and implicit bias.” IAF,
Tab 10 at 49, 55-60. According to the agency, on July 23, 2020, OPR received
two additional complaints from the appellant, again alleging nepotism, retaliation,
waste, and fraud and abuse, and naming the Public Safety Group GS and the
National Security Group GS as the subjects of his allegations. IAF, Tab 12
at 240-45, 289-94.
The appellant alleges that, as a result of these communications, he was
subjected to retaliation, including the following: in or about February or March
2020, the Acting Deputy SAC refused to investigate and provide surveillance
following the vandalism and shooting of his private property, IAF, Tab 10 at 15,
52; during a March 2, 2020 meeting that the Public Safety Group GS held with
the Public Safety Group, she became hostile toward the appellant and targeted
him specifically for “going to management” about her, id. at 52, 58; shortly
2 In its response to the jurisdictional order, the agency submitted copies of the
investigative findings of the appellant’s July 3-4 and 23, 2020 OPR complaints. IAF,
Tab 12 at 158-62, 240-45, 289-94. We have considered these submissions here merely
to clarify background information regarding the appellant’s disclosures and activities,
and not to weigh the evidence. Hessami v. Merit Systems Protection Board , 979 F.3d
1362, 1368-69 (Fed. Cir. 2020) (holding that in determining if an appellant has made
nonfrivolous allegations, the Board must consider only his allegations and not the
agency’s contrary evidence or view of the evidence).
4
thereafter, upon learning that the appellant had “applied for disability” through
the Department of Veterans Affairs, the Public Safety Group GS told the
appellant something to the effect of “you better not tell anyone else you’re
applying for disability or you’re [going to] lose your job,” id.; in April 2020, the
appellant was excluded from the Group Rotation list and transferred from the
Public Safety Group to the National Security Group, resulting in the diminution
of his promotion potential, id. at 15-16, 52; the Public Safety Group GS and the
National Security Group GS subjected the appellant to a hostile work
environment, including forcing him to pursue a meritless investigation which
could have resulted in damage to his career and giving the appellant non-mission
critical tasks, like cleaning out case files, while others were permitted to
telework, id. at 15-17, 52-53; on July 3, 2020, the Public Safety Group GS and
the National Security Group GS improperly attempted to have him report to
unscheduled duty to assist the Border Enforcement Security Task Force, allegedly
in violation of Law Enforcement Availability Pay regulations, id. at 17, 53; on
July 6, 2020, the National Security Group GS denied the appellant’s annual leave
request and then required him to submit proof of his court appearance before she
would approve it, id. at 17-18, Tab 13 at 4; on or about July 8, 2020, the National
Security Group GS accused the appellant of using his expired HSI passport “for
the purposes of traveling under the Coast Guard umbrella” and subjected him to
an investigation, IAF, Tab 10 at 17, 43-44, 53-54, Tab 12 at 95; in August 2020,
the National Security Group GS required the appellant to turn in his credentials
while on active duty, resulting in the loss of his access to the agency’s intranet
and promotional opportunities, IAF, Tab 10 at 18, 52; and in December 2020,
while on active duty, the National Security Group GS denied him access to the
HSI parking lot, id. at 18, 52, Tab 11 at 4.
The appellant filed the underlying whistleblower reprisal complaint with
the Office of Special Counsel (OSC) on November 5, 2020. IAF, Tab 10
at 22-60; Petition for Review (PFR) File, Tab 1 at 7. OSC issued him a final
5
determination letter in October 2021 and closed its investigation into his
complaint. IAF, Tab 10 at 62.
The appellant then filed this IRA appeal with the Board. IAF, Tab 1 at 3,
5. With his appeal, he filed a copy of OSC’s October 12, 2021 notice that it was
closing his November 5, 2020 complaint into an alleged June 2020 disclosure of
improper hiring practices. Id. at 15. The administrative judge thereafter issued
an order setting forth the appellant’s burden to establish jurisdiction over his
appeal. IAF, Tab 3. The appellant submitted a response, providing information
regarding the February and July 2020 disclosures and/or activities and the
personnel actions at issue. IAF, Tab 10 at 4-20. He also attached to his response
a copy of his OSC complaint form and a written summary of his disclosures
and/or activities and the personnel actions at issue, and again provided a copy of
OSC’s final determination letter. Id. at 22-62. The agency responded to the
appellant’s submission. IAF, Tabs 12-13.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 14, Initial Decision (ID) at 1, 8. He found that
because OSC’s final determination letter referred only to a June 2020 disclosure
and the appellant had not submitted any information about a June 2020
disclosure, including to whom it may have been made, the appellant had failed to
exhaust his administrative remedies before OSC concerning his remaining
disclosures. ID at 6-7. The administrative judge also concluded that the
appellant had failed to nonfrivolously allege that he made a disclosure in
June 2020 that was a contributing factor in a personnel action. ID at 8.
The appellant has filed a petition for review of the initial decision. PFR
File, Tabs 1-2. The agency has filed a response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his remedies before OSC and makes nonfrivolous allegations that
6
(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). Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 5.
The administrative judge erred in finding that the appellant failed to exhaust his
alleged perceived or actual disclosures and/or activities and personnel actions
with OSC.
The administrative judge found that the appellant failed to exhaust his
disclosures and personnel actions with OSC. ID at 7-8. In so finding, he relied
on OSC’s final determination letter, and specifically declined to rely on the
appellant’s OSC complaint or its attachments because of what he perceived as a
“disconnect” between the appellant’s complaint and the final determination letter,
as well as the appellant’s failure to correct OSC’s close out notice. ID at 7. On
review, the appellant argues that the administrative judge erred in requiring him
to prove that the OSC complaint that he provided with his appeal was the same
complaint that formed the basis of OSC’s investigation and in requiring him to
correct OSC’s misinterpretation of his claims. PFR File, Tab 1 at 4-6. We agree
with the appellant.
To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an
appellant must have provided OSC with a sufficient basis to pursue an
investigation into his allegations of whistleblower reprisal. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 7; Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶ 10. Generally, exhaustion can be
demonstrated through the appellant’s OSC complaint, evidence the original
complaint was amended (including but not limited to OSC’s determination letter
and other letters from OSC referencing any amended allegations), and the
appellant’s written responses to OSC referencing the amended allegations.
Skarada, 2022 MSPB 17, ¶ 7; Mason v. Department of Homeland Security ,
7
116 M.S.P.R. 135, ¶ 8 (2011). Alternatively, exhaustion may be proven through
other sufficiently reliable evidence, such as an affidavit or declaration attesting
that the appellant raised with OSC the substance of the facts in his appeal.
Skarada, 2022 MSPB 17, ¶ 7; Chambers, 2022 MSPB 8, ¶ 11. Contrary to the
administrative judge’s reasoning here, the Board has found that an appellant was
not statutorily required to respond to OSC’s preliminary determination letter
regarding his complaint in order to prove that he exhausted his administrative
remedies with OSC. Chambers, 2022 MSPB 8, ¶¶ 6-8. Therefore, the
administrative judge’s determination that the appellant could not establish
jurisdiction on this basis was in error.
With the appellant’s response to the administrative judge’s jurisdictional
order, he provided a copy of his OSC complaint and the summary of his claims
that he attached to his OSC complaint. IAF, Tab 10 at 22-56. Based on our
review of these documents, we find that he exhausted his allegation that the
agency believed he was the source of his colleague’s 2017 complaint against the
Acting Deputy SAC, and also exhausted his April/May 2018, February 2020,
and July 3-4, 2020 disclosures and/or protected activity, as well as the alleged
personnel actions listed above. The appellant’s counsel asserts that he provided
this information to OSC and certified to the truthfulness of the statements in the
appellant’s initial appeal and his jurisdictional reply. IAF, Tab 1 at 5, 8; Tab 10
at 3, 20. Moreover, on review, the appellant’s counsel submits an affidavit from
his law clerk certifying that she filed the OSC complaint and the summary of
disclosures and personnel actions with OSC. PFR File, Tab 1 at 7 (citing to IAF,
Tab 10 at 22-60).3
3 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. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). Nevertheless, we have considered all of the
evidence in the record that relates to the Board’s jurisdiction, regardless of when it was
submitted. See Stoglin v. Department of the Air Force , 123 M.S.P.R. 163, ¶ 7 (2015)
(explaining that the issue of Board jurisdiction is always before the Board and may be
raised at any time), aff’d per curiam, 640 F. App’x 864 (Fed. Cir. 2016).
8
The agency stated that on July 23, 2020, OPR received two additional
complaints from the appellant alleging nepotism, retaliation, waste, and fraud and
abuse; however, the appellant did not raise any July 23, 2020 complaints with
OSC. IAF, Tab 10 at 32, Tab 12 at 240-45, 289-94. Although the administrative
judge addressed the July 23, 2020 complaints in his initial decision, he appears to
have accurately determined that they concern the same subject matter as the
appellant’s July 4, 2020 complaint. ID at 3; compare IAF, Tab 10 at 55-60, with
IAF, Tab 12 at 240-45, 289-94. The appellant, who has been represented by
counsel throughout this appeal, did not list the 2017, 2018, or July 23, 2020
complaints as actual or perceived disclosures or protected activity in his
jurisdictional response, nor did he allege that he was subjected to retaliation as a
result of these complaints. IAF, Tab 10 at 6-15. Instead, he specifically stated
that he was subjected to retaliation “[a]s a result of the [a]ppellant’s actual and
perceived complaints in February, 2020, and/or his July 3, 2020 written complaint
to OPR.” Id. at 14-15. Therefore, we decline to address the 2017, 2018, or
July 23, 2020 complaints as separate disclosures or activities.
Accordingly, we find that the appellant established by preponderant
evidence that he exhausted his administrative remedy with OSC regarding the
February 2020 and July 3-4, 2020 disclosures and/or activities, as well as all the
alleged personnel actions.4
The appellant nonfrivolously alleged that he made a protected disclosure under
5 U.S.C. § 2302(b)(8) and engaged in protected activity under 5 U.S.C.
§ 2302(b)(9).
The appellant nonfrivolously alleged that he made a protected disclosure in
February 2020.
As set forth above, the appellant asserted that in February 2020 he and
several colleagues verbally complained to the ASAC about the Acting Deputy
4 Because the appellant raised the 2017 and 2018 complaints with OSC, to the extent
that he wishes to include those complaints as protected disclosures or activities, he
should raise those claims on remand, consistent with the administrative judge’s orders.
9
SAC’s hiring practices surrounding the selection for the Public Safety Group GS
position, the “fraternization,” “toxic morale in the office,” the preferential
treatment of some employees, and the close relationship between the Acting
Deputy SAC, the Public Safety Group GS, and the National Security Group GS.
IAF, Tab 10 at 10, 49. Because the administrative judge improperly limited the
appellant’s exhausted disclosures to a June 2020 disclosure,5 he did not address
whether the appellant made a nonfrivolous allegation of a protected disclosure
with respect to this complaint. ID at 8. We find that he did.
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 his disclosures were protected
is whether a disinterested observer in his 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, 8. 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.
The appellant alleged that in February 2020, prior to the Public Safety
Group GS’s entry on duty in Honolulu, he and three other employees complained
to the ASAC about the Acting Deputy SAC, the Public Safety Group GS, and the
National Security Group GS. IAF, Tab 10 at 10, 49, 58. During this meeting,
they allegedly complained about hiring improprieties surrounding the selection
for the Public Safety Group GS position, including that the Public Safety Group
GS should not have been hired and was “only there because of her close
5 On review, the parties do not dispute the administrative judge’s determination that the
Board lacks jurisdiction over a June 2020 disclosure. We decline to revisit that finding
here.
10
relationship with [the National Security Group GS].” IAF, Tab 10 at 10, 49. It is
undisputed that the Acting Deputy SAC was the selecting official for the Public
Safety Group GS position. IAF, Tab 12 at 30, 231. They also complained about
the “fraternization,” “toxic morale in the office,” the preferential treatment of
some employees, and the close relationship between the Acting Deputy SAC, the
Public Safety Group GS, and the National Security Group GS. IAF, Tab 10 at 10,
49. The appellant also alleged that they informed the ASAC of “the
history/circumstances in which the Public Safety Group GS had come to SAC
Honolulu.” Id. at 58.
The appellant’s assertions regarding the “history” of close association and
“fraternization” is somewhat lacking in detail; however, the appellant elaborated
on this point elsewhere in his submission to OSC and in his July 4, 2020
complaint to OPR. IAF, Tab 10 at 49-50, 57. He claimed that, since 2017, the
Public Safety Group GS, who was then a Special Agent, was given favorable
treatment ahead of her selection and frequently appeared in Hawaii, despite being
stationed elsewhere. Id. at 49. For instance, she received a special temporary
duty assignment to organize a file room in Honolulu while awaiting a transfer to
South Africa, instead of remaining in Houston where she was stationed. Id. at 49,
57. In 2017, the then -Special Agent also received a cash award for working on a
closed case file, despite not being assigned to Honolulu. Id. In the fall of 2019,
despite being stationed in South Africa, she attended the Hawaii State Law
Enforcement Officers Association Convention, during which she allegedly stated
something to the effect that “[the] GS at SAC–Honolulu was hers and that she
just had to go through formalities.” Id. at 49-50, 57. When she interviewed for
the Public Safety Group GS position, even though it is standard procedure for the
individual being interviewed to interview at the closest physical office, which in
her case was South Africa, she was given the special privilege of interviewing for
the position in person in Honolulu. Id. at 50, 57. The appellant further claimed
that shortly after her selection, the Acting Deputy SAC and the Public Safety
11
Group GS were observed on Government property in an intoxicated state and
drove away in a vehicle, leaving the HSI office gate open. Id. at 8, 10, 57-58.
The agency acknowledges that this conversation took place and that, on
February 28, 2020, the ASAC informed the Public Safety Group GS that several
agents complained to him about her appointment to the Public Safety Group GS
position. IAF, Tab 12 at 7.
We find that the appellant has nonfrivolously alleged that he reasonably
believed that, in notifying the ASAC that the Acting Deputy SAC was engaging
in hiring improprieties by granting her friend special privileges and selecting her
to the position based on their friendship without regard to merit, he had disclosed
a violation of law, rule, or regulation and/or an abuse of authority regarding the
agency’s selection process. The Board has previously held that claims
concerning disclosures about hiring and selection improprieties, including giving
preferential treatment to friends, may constitute nonfrivolous allegations of
protected disclosures that statutory provisions have been violated. See Ormond v.
Department of Justice , 118 M.S.P.R. 337, ¶¶ 8-10 (2012) (finding the appellant
nonfrivolously alleged that he made a protected disclosure when he reported that
a manager told a human resource officer that an applicant should be selected for a
position, and the human resources officer then referred only that applicant for an
interview and he was selected over two other applicants who were not
interviewed); see also McDonnell v. Department of Agriculture , 108 M.S.P.R.
443, ¶¶ 10-13 (2008) (finding that the appellant made a nonfrivolous allegation
that she made a protected disclosure by reporting that her supervisor improperly
cancelled a vacancy announcement and reassigned an unqualified employee into
the position at the request of a director and as a favor to the employee’s friend,
which could constitute a prohibited personnel practice).6
6 The appellant argues below that if his February 2020 complaint did not constitute a
protected disclosure, at the very least he was perceived as a whistleblower, based on the
fact that the Public Safety Group GS stated during the March 2020 Public Safety Group
meeting that she knew he had gone to management and complained about her. IAF,
12
The appellant nonfrivolously alleged that he engaged in protected activity
with regard to his July 3 and 4, 2020 complaint to the agency’s OPR.
As set forth above, on July 3 and 4, 2020, the appellant alleged that he
spoke to and later submitted a written complaint to the agency’s OPR alleging a
“continued pattern and practice of favoritism, nepotism and implicit bias” as well
as retaliation following his February 2020 disclosure. IAF, Tab 10 at 55-60. The
administrative judge did not address whether the appellant engaged in protected
activity with respect to this complaint. ID at 8. We find that he did.
Prior to December 12, 2017, it was a protected activity under 5 U.S.C.
§ 2302(b)(9)(C) to “cooperat[e] with or disclos[e] information to the Inspector
General of an agency, or the Special Counsel, in accordance with applicable
provisions of law.” Edwards v. Department of Labor , 2022 MSPB 9, ¶ 29 (2022),
aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023).
Section 1097(c)(1) of the National Defense Authorization Act of 2018 (NDAA)
amended 5 U.S.C. § 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.
Edwards, 2022 MSPB 9, ¶ 29. Although the appellant’s OPR complaint and
alleged personnel actions occurred after the December 12, 2017 enactment date of
the NDAA, neither the administrative judge nor the parties addressed whether the
appellant’s OPR complaint falls within the expanded scope of this subsection.
We do so here.
OPR is charged with, among other things, conducting independent reviews
of ICE programs and operations, and receiving and impartially investigating
Tab 10 at 14. The administrative judge did not address this argument in his decision,
and the appellant did not raise it on review. A typical IRA appeal involves a claim that
the appellant made a protected disclosure or engaged in protected activity. King v.
Department of the Army , 116 M.S.P.R. 689, ¶ 6 (2011). However, an appellant can also
establish jurisdiction on the basis that he was perceived as a whistleblower, even if he
did not make a protected disclosure. Id. Because we have determined that the appellant
nonfrivolously alleged that he made a protected disclosure with respect to the February
2020 complaint, we need not consider this alternative argument.
13
allegations of serious employee and contractor misconduct, as well as internal and
external threats against ICE personnel and facilities. Department of Homeland
Security, ICE, OPR, Who We Are, https://www.ice.gov/about-ice/opr (last visited
May 3, 2024). On July 3, 2020, well after the enactment of the 2018 NDAA, the
appellant submitted a complaint to OPR containing allegations of prohibited
personnel practices and whistleblower reprisal. IAF, Tab 12 at 158-62. OPR
conducted an internal investigation and review of the appellant’s allegations and
determined that there was insufficient evidence to support the appellant’s claims.
Id. We find, based on its stated mission and its acceptance and review of the
appellant’s claims, that OPR is an agency component “responsible for internal
investigation and review.” 5 U.S.C. § 2302(b)(9)(C). Thus, we find that the
appellant nonfrivolously alleged that his OPR complaint constitutes protected
activity.
The appellant nonfrivolously alleged that his February 2020 disclosure was a
contributing factor in his transfer to the National Security Group.
The administrative judge did not make findings as to whether the appellant
nonfrivolously alleged that either the February 2020 disclosure or the July 2020
protected activity was a contributing factor in a personnel action. An appellant’s
protected activity is a contributing factor if it in any way affects an agency’s
decision to take, or fail 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 he 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.7 Pridgen v. Office of
7 If an appellant has failed to satisfy the knowledge/timing test, the Board will consider
whether the contributing factor element has been met based on other evidence, such as
the strength or weakness of the agency’s reasons for taking the action, whether the
whistleblowing was personally directed at the proposing or deciding officials, and
14
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 his February 2020 complaint to the ASAC
caused the agency to transfer him from the Public Safety Group to the National
Security Group in April or May 2020. IAF, Tab 10 at 14-15, 52. The agency
agrees that the appellant was transferred to the National Security Group following
his disclosure. IAF, Tab 12 at 8. A transfer is a personnel action. 5 U.S.C.
§ 2302(a)(2)(A)(iv). Therefore, the appellant’s allegations are sufficient to meet
his jurisdictional burden as to the timing prong of the knowledge/timing test as it
concerns his transfer.
We also conclude that the appellant nonfrivolously alleged that one of the
individuals involved in the decision to transfer him had knowledge of his
February 2020 disclosure. Specifically, the appellant made the February 2020
disclosure to the ASAC, who, according to the Acting Deputy ASAC,
recommended the appellant’s transfer from the Public Safety Group to the
National Security Group, which she ultimately approved. IAF, Tab 10 at 10,
Tab 12 at 187. Thus, the appellant has made nonfrivolous allegations regarding
the knowledge prong of the knowledge/timing test.
In cases such as this one, when the appellant has alleged that multiple
personnel actions were retaliatory, the Board has jurisdiction when the appellant
exhausts his administrative remedies before OSC and makes a nonfrivolous
allegation that at least one alleged personnel action was taken in reprisal for at
least one alleged protected disclosure. Skarada, 2022 MSPB 17, ¶ 13. Therefore,
we find it appropriate to remand this appeal for a determination on the merits.
Before proceeding to the merits, the administrative judge should make findings as
whether those individuals had a motive to retaliate against the appellant. See Dorney,
117 M.S.P.R. 480, ¶¶ 14-15.
15
to whether the appellant has met his burden to nonfrivolously allege that the
February 2020 disclosure and his July 3-4, 2020 OPR complaint were a
contributing factor in any other exhausted personnel actions.8 If so, he should
adjudicate those matters on the merits as well.
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.
8 The administrative judge should also determine whether the appellant has made
nonfrivolous allegations that the allegedly retaliatory actions meet the definition of
“personnel action” in 5 U.S.C. § 2302(a)(2). | White_Glenn_H_SF-1221-22-0139-R-1_Remand_Order.pdf | 2024-05-03 | GLENN H. WHITE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-1221-22-0139-R-1, May 3, 2024 | SF-1221-22-0139-R-1 | NP |
1,560 | https://www.mspb.gov/decisions/nonprecedential/Smith_Michael_A_AT-1221-21-0205-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL ANDREW SMITH, SR.,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-1221-21-0205-W-1
DATE: May 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Michael Andrew Smith, Sr. , Palm Coast, Florida, pro se.
Ownie Eng , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed this individual right of action (IRA) appeal for failure to prosecute.
For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
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).
2
BACKGROUND
The appellant, a Security Specialist serving as a term employee for the
Federal Emergency Management Agency (FEMA), filed this IRA appeal in which
he alleged, among other things, that the agency had suspended him for more than
14 days, gave him a negative suitability determination, denied him training, and
restricted his deployments. Initial Appeal File (IAF), Tab 1 at 1, 3. He indicated
that he filed a whistleblowing complaint with the Office of Special Counsel
(OSC) and included OSC’s letter closing its investigation, recounting his
allegations that the agency, among other things, improperly demobilized him in
2019. Id. at 7.
The administrative judge issued a jurisdictional order explaining to the
appellant the burdens and elements he must meet to establish jurisdiction over his
IRA appeal and receive a hearing on his allegations of whistleblower retaliation.
IAF, Tab 3 at 1-7. He ordered the appellant to file a statement, accompanied by
evidence, listing the following: (1) your protected disclosure(s) or activity(ies);
(2) the date(s) you made the disclosure(s) or engaged in the activity(ies); (3) the
individual(s) to whom you made any disclosure(s); (4) why your belief in the
truth of any disclosure(s) was reasonable; (5) the action(s) the agency took or
failed to take, or threatened to take or fail to take, against you because of your
disclosure(s) or activity(ies); (6) why you believe a disclosure or activity, or a
perception of such a disclosure or activity, was a contributing factor to the
action(s); and (7) the date of your complaint to OSC, the matters you raised in it
and any amendments, and the date that OSC notified you it was terminating its
investigation of your complaint, or if you have not received such notice, evidence
that 120 days have passed since you filed your complaint with OSC. Id. at 7-8.
The appellant filed four submissions in response. IAF, Tabs 9-12. The
submissions included his correspondence with an OSC attorney about the
appellant’s allegations. IAF, Tab 12 at 4-12.
3
The administrative judge found that the appellant’s response was not
sufficiently specific and focused to allow him to make a jurisdictional
determination, and he ordered the appellant to file a 1-page submission for each
of the alleged protected disclosures described in OSC’s closure letter, using this
prescribed format:
Disclosure No. ___
1. Date of disclosure:
2. Information disclosed:
3. Disclosure made to:
4. Disclosure evidences: (a) violation of law, rule, regulation; (b)
gross mismanagement; (c) gross waste of funds; (d) abuse of
authority; and/or (e) a substantial and specific danger to public
health or safety:
5. Basis for each category of wrongdoing listed in response to # 4
above:
6. Evidence supporting response to # 5 above (Do not resubmit
previously-provided evidence; refer to it by location in your
previous submissions [e.g., “Board Appeal File, Tab __, page
___”]. Attach only new evidence.)
7. Agency personnel action(s) taken (or not taken) because of this
disclosure:
8. Agency personnel involved in the personnel action(s) referenced
in # 7 above;
9. Basis for your belief that person(s) listed in response to # 8
was/were aware of this disclosure prior to taking personnel action(s)
listed in response to # 7 above.
10. Evidence supporting response to # 10 above. (Do not resubmit
previously provided evidence; refer to it by location in your
previous submissions [e.g., “Board Appeal File, Tab __, page
___”]. Attach only new evidence.)
IAF, Tab 13 at 1-2 (emphasis in original). The administrative judge warned the
appellant that a failure to comply with his order could result in the imposition of
sanctions. Id. at 2. In response, the appellant submitted a narrative response and
five separate 1-page submissions concerning his purported disclosures, but he did
4
not use the administrative judge’s prescribed format. IAF, Tabs 16-20. The
agency also filed a response to the order to show cause. IAF, Tabs 22-24.
The administrative judge subsequently issued a second order to show cause,
again ordering the appellant to file a 1-page submission in a prescribed format for
each of the alleged protected disclosures described in OSC’s closure letter. IAF,
Tab 25 at 1-2. As a sanction for the appellant’s failure to follow the instructions
in his first show cause order, the administrative judge did not consider the
appellant’s responses to it. IAF, Tabs 16-20, Tab 25 at 1. He warned the
appellant that another failure to follow his instructions may result in the
imposition of further sanctions, up to and including dismissal of the appeal for
failure to prosecute. IAF, Tab 25 at 2. The appellant subsequently filed four
single-page responses, but he once again failed to use the administrative judge’s
prescribed format. IAF, Tabs 26-29.
The administrative judge issued an initial decision dismissing the appeal
for failure to prosecute. IAF, Tab 30, Initial Decision (ID) at 1. He observed that
the appellant had failed to appropriately respond to his orders to submit evidence
and argument to explain why his appeal should not be dismissed for lack of
jurisdiction. ID at 5-6. The administrative judge found that this was a failure to
exercise basic due diligence in complying with Board orders, and he dismissed
the appeal for failure to prosecute on that basis. ID at 6.
In his petition for review, the appellant asserts that he thought that the
submissions he made in response to the administrative judge’s first order to show
cause were in compliance with the administrative judge’s instructions. Petition
for Review (PFR) File, Tab 1 at 4. The appellant claims that he asked for a
telephone conference to, among other things, clarify the administrative judge’s
instructions and find out how his submissions fell short, but the administrative
judge denied his request. PFR File at 5-6, 14. The appellant asserts that he then
rewrote and submitted four disclosures that he also thought were in compliance
with the administrative judge’s instructions. Id. at 6. The appellant also makes
5
arguments concerning his purported disclosures and the employment status of
FEMA reservists like himself. Id. at 6-9.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in 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). 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). 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.2 Baldwin v. Department of
Veterans Affairs , 113 M.S.P.R. 469, ¶ 6 (2010).
As explained above, the administrative judge dismissed the appeal for
failure to prosecute. ID at 1. In reaching that conclusion, the administrative
judge explained that the appellant failed to comply with the specific requirements
of three separate Board orders. ID at 6; IAF, Tabs 3, 13, 25. The administrative
judge did not consider the appellant’s deficient narrative responses, in part as a
sanction for failing to use the prescribed format in response to the first order to
2 An understanding of the nature of the Board’s jurisdiction over IRA appeals, such as
this, could help the appellant file the necessary information. Among other things, the
Board lacks the authority to investigate agency wrongdoing; the Board’s jurisdiction is
limited to claims that an agency took or failed to take a personnel action in reprisal for
protected disclosures and activities.
6
show cause. IAF, Tab 25 at 1. The administrative judge ultimately dismissed the
appeal because of the appellant’s failure to follow his prescribed format, notably
without considering any of the allegations described in the appellant’s
correspondence with OSC. ID at 4-6; IAF, Tab 1 at 7-8, Tab 12 at 4-16.
The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Ahlberg v. Department of Health and Human
Services, 804 F.2d 1238, 1242 (Fed. Cir. 1986); 5 C.F.R. § 1201.43(b). Although
the regulation at 5 C.F.R. § 1201.43(b) does not set forth guidelines for applying
this sanction, the Board has held that such a severe sanction must only be used
when necessary to serve the ends of justice, for example, when a party has failed
to exercise basic due diligence in complying with an order, or has exhibited
negligence or bad faith in his efforts to comply. Williams v. U.S. Postal Service ,
116 M.S.P.R. 377, ¶ 7 (2011) (quoting Chandler v. Department of the Navy ,
87 M.S.P.R. 369, ¶ 6 (2000)). By contrast, an appeal should not be dismissed for
failure to prosecute when, for example, a pro se appellant has made incomplete
responses to the Board’s orders but has not exhibited bad faith or evidenced any
intent to abandon his appeal, and appears to be confused by Board procedures.
Id.
Although the appellant restricted the discussion of each of his alleged
disclosures to 1 page after he was instructed to do so, the administrative judge
was correct to note that the appellant failed to actually comply with the
instructions in his jurisdictional order. Compare IAF, Tab 13 at 2, with IAF,
Tabs 16-20, 26-29. Rather than comply with the administrative judge’s
instructions, the appellant appears to have distilled his narrative response into
single-page segments. IAF, Tabs 9-12, 16-20, 26-29.
However, the sanction of dismissal was not appropriate under the
circumstances. The cases that the administrative judge cited in support of his
imposition of sanctions are distinguishable in that the appellants in each of those
cases simply did not respond at all. ID at 5; see Ahlberg, 804 F.2d at 1242
7
(noting that the petitioners failed to file any response to the presiding official’s
order); Williams, 116 M.S.P.R. 377, ¶ 10 (observing that the regional office sent
three orders to which the appellant made “no attempt to respond”); Heckman v.
Department of the Interior , 106 M.S.P.R. 210, ¶ 9 (2007) (describing the
appellant’s “total failure” to respond to the administrative judge’s orders);
Murdock v. Government Printing Office , 38 M.S.P.R. 297, 299 (1988) (observing
that the appellant completely failed to reply to the administrative judge’s orders).
Here, the appellant responded to each of the administrative judge’s orders. IAF,
Tabs 3, 9-13, 16-20, 25-29. We disagree with the administrative judge that the
appellant failed to show basic due diligence in his efforts to properly comply.
The appellant responded in apparent good faith to the administrative judge’s
order with single -page submissions, but the lack of clarity in his submissions
illustrates the importance of following the instructions provided in the
administrative judge’s order. IAF, Tab 13 at 2. Moreover, the appellant argues
on review that he sought a telephone conference with the administrative judge in
an effort to understand the instructions, and how his prior submissions were not
responsive, but the administrative judge denied the request as unnecessary. PFR
File, Tab 1 at 5-6, 14. Thus, even though the administrative judge found that the
appellant failed to respond to three separate Board orders directing him to submit
evidence and argument to meet his jurisdictional burden, ID at 5-6; IAF, Tabs 3,
13, 25,3 the record shows that after each order the appellant filed submissions in
response, IAF, Tabs 10-12, 15-20, 26-29. Additionally, most of those
submissions consisted of a single page, in keeping with that portion of the
administrative judge’s instructions, if not following the exact format specified.
IAF, Tab 13 at 1, Tabs 16-20, 26-29.
We observe that the administrative judge appears to be sanctioning the
appellant for failing to follow his instructions, rather than for a failure to
3 Although there are three separate orders involved here, the second two are essentially
the same order, with harsher warnings in the third one for disregarding the instructions
therein. IAF, Tabs 3, 13, 25.
8
prosecute the appeal. Concerning an appellant’s failure to follow instructions for
pleadings, the Board has dismissed a petition for review for failure to prosecute,
based on an appellant’s repeated failure to comply with the Board’s regulations
and the directions of the Clerk of the Board. Morris v. Department of the Navy ,
123 M.S.P.R. 662, ¶ 14 (2016) (finding that the appellant failed to exercise due
diligence when he was “noncompliant in a substantial way, on four occasions,”
when his pleading exceeded the regulatory page limit by approximately 200
pages). As described above, the appellant’s failure to follow the administrative
judge’s instructions in this appeal is limited to his failure to follow the specific
format prescribed for his single -page submissions, as set forth in the
administrative judge’s first order to show cause. IAF, Tab 13 at 2. It does not
resemble the bad faith shown by the appellant in Morris.
As noted above, the severe sanction of dismissal for failure to prosecute
should not be imposed when a pro se appellant has made incomplete responses to
the Board’s orders but has not exhibited bad faith or evidenced any intent to
abandon his appeal, and appears to be confused by Board procedures. Williams,
116 M.S.P.R. 377, ¶ 7. The appellant here did not exhibit bad faith or indicate
that he intended to abandon his appeal. Moreover, he asked for help
understanding the administrative judge’s instructions but was denied the
opportunity. Dismissing an appeal by a pro se appellant for failure to prosecute
when the appellant did not demonstrate bad faith in his attempts to respond, and
was denied a requested telephone conference to help him to comply with those
instructions, is an abuse of discretion. See Williams, 116 M.S.P.R. 377, ¶ 7.
Also, the administrative judge failed to consider any of the allegations
described in the appellant’s correspondence with OSC concerning his reprisal
claim. IAF, Tab 1 at 7-8, Tab 12 at 4-16. This evidence may have helped the
administrative judge to better understand the appellant’s assertions.
9
On remand, the appellant must comply with the administrative judge’s order and
meet his jurisdictional burden.
The appellant’s correspondence with OSC contains the most succinct
recitation of the appellant’s claims. IAF, Tab 1 at 7-8, Tab 12 at 4-16. For
example, in that correspondence, the appellant noted his allegation that he had
been demobilized early from an assignment in Puerto Rico in retaliation for
reporting that a housing project employee had forgotten to return her FEMA
visitor badge, and that the agency’s subsequent withholding of his appraisal from
that assignment impeded his application for another position. IAF, Tab 12 at 4.
A claim that a FEMA reservist was demobilized is a personnel action for the
purposes of an IRA appeal. Jessup v. Department of Homeland Security,
107 M.S.P.R. 1, ¶ 9 (2007). The appellant also alleged that he reported to the
agency’s Office of Professional Responsibility (OPR) that some employees,
including one of his supervisors, improperly ran a private security company, and
that he suffered retaliation for making that disclosure by, among other things,
receiving an unsatisfactory performance rating. IAF, Tab 12 at 6.
Nevertheless, it remains unclear what allegations of reprisal for protected
disclosures and activities the appellant intends to pursue in the instant IRA appeal
and whether those allegations are within the Board’s jurisdiction. On remand, the
administrative judge should conduct a telephone conference with the appellant
and the agency’s representative and should answer the appellant’s questions about
how to comply with his jurisdictional order.4 The administrative judge should
consider any response that the appellant makes, in concert with explicit findings
as to the disclosures and personnel actions alleged in the appellant’s
correspondence with OSC, and issue a new initial decision concerning the
appellant’s IRA appeal.
4 The administrative judge shall document the contents of this telephone conference in a
summary served on the parties and shall afford the parties at least 5 business days to
object to that summary.
10
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Smith_Michael_A_AT-1221-21-0205-W-1__Remand_Order.pdf | 2024-05-03 | null | AT-1221-21-0205-W-1 | NP |
1,561 | https://www.mspb.gov/decisions/nonprecedential/Tran_DavidDC-0752-19-0758-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID TRAN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-19-0758-I-1
DATE: May 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.
Maxwell Selz , Esquire, and Jonathan Beyer , Esquire, APO, AE, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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
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).
2
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 findings concerning the appellant’s
whistleblower reprisal affirmative defense, we AFFIRM the initial decision.
BACKGROUND
The essential undisputed facts as set forth in the initial decision are as
follows. The appellant was employed by the Department of Defense Education
Activity (DoDEA) as Principal of the Ankara Elementary/High School in Ankara,
Turkey. Initial Appeal File (IAF), Tab 16, Initial Decision (ID) at 1-2. On
June 30, 2019, the agency proposed the appellant’s demotion based on two
charges of conduct unbecoming a Federal supervisor (five specifications) and lack
of candor (two specifications). ID at 2. The conduct unbecoming charge was
based on the appellant’s failure to ensure the proper use of a Government vehicle,
failure to provide accurate information to a military unit concerning persons
authorized to access the school, and allowing an individual with no official
DoDEA affiliation to access the school to perform, among other things, personal
services for school employees. ID at 2-30. The lack of candor charge was based
on the appellant’s inconsistent statements concerning his knowledge of the
services performed by the individual whom he improperly allowed to access the
school and his statement concerning communications about such individual’s
improper use of the Government vehicle. ID at 30-38. After affording the
3
appellant an opportunity to respond, the deciding official sustained the charges
and the appellant was demoted, effective August 17, 2019. ID at 1-2. The record
reflects that the appellant was demoted from his Principal position to a position as
a Teacher (General Science). IAF, Tab 5 at 4.
The appellant filed a Board appeal, challenging his demotion and raising
affirmative defenses of whistleblower reprisal and discrimination based on his
race. IAF, Tab 1. After the appellant withdrew his request for a hearing, IAF,
Tab 11, the administrative judge issued an initial decision based on the written
record, ID at 1. The administrative judge sustained both charges, finding that the
agency proved all of its specifications by preponderant evidence. ID at 2-38.
The administrative judge further found that the appellant failed to prove his
affirmative defenses of race discrimination and whistleblower reprisal.2 ID
at 38-47. Finally, the administrative judge found that the penalty of demotion
was reasonable. ID at 47-52.
The appellant has filed a petition for review, which the agency has
opposed. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency proved its charges.
In his petition for review, the appellant reiterates the arguments that he
raised in his close of record submission below without citation to any evidence
and without identifying any errors in the administrative judge’s analysis
2 Regarding the appellant’s claim of race discrimination, the administrative judge found
that the appellant failed to prove that the agency’s action was “based on illegal
discrimination due to his race.” ID at 42. The appellant does not challenge such a
finding on review; however, in light of the administrative judge’s citation to and
analysis under the standards set forth in Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶ 51 (2015), clarified by Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647, ¶¶ 30-31 (2016), ID at 38-42, we construe such a finding as
tantamount to finding that the appellant failed to prove that his race was a motivating
factor in the agency’s decision to demote him. Because we discern no error with the
administrative judge’s motivating factor analysis or conclusion regarding this claim, we
do not reach the question of whether retaliation was a “but-for” cause of the removal
action. See Johnson v. Department of Veterans Affairs , 2023 MSPB 9, ¶ 5 n.2.
4
concerning the agency’s proof of its charges. Compare IAF, Tab 15 at 50-51, 53,
with PFR File, Tab 1 at 16-18. Thus, the Board will not embark upon a complete
review of the record. See Baney v. Department of Justice , 109 M.S.P.R. 242, ¶ 7
(2008); Tines v. Department of the Air Force , 56 M.S.P.R. 90, 92 (1992);
5 C.F.R. § 1201.115(a)(2).
Regarding the conduct unbecoming charge, the appellant’s argument that
he was not responsible for keeping track of the Government vehicle’s mileage or
usage constitutes disagreement with the administrative judge’s findings and does
not provide a basis for reversal. PFR File, Tab 1 at 16. In particular, the
administrative judge considered the record evidence and specifically rejected the
appellant’s argument, instead finding that the appellant, as principal and the
senior administrative authority at the school, was vested with the responsibility to
grant or deny use of the vehicle.3 ID at 8, 14-16. Regarding the lack of candor
3 On March 31, 2021, the appellant filed a motion for leave to file a supplemental
petition for review in which he seeks to submit new information in the form of an
affidavit from a teacher attesting to the fact that he advised her that a certain
unauthorized individual was not permitted to drive the school van on September 25,
2018. PFR File, Tab 6. The appellant contends that this information is relevant to
specification one of the agency’s conduct unbecoming charge in which the
administrative judge found that the agency proved that the appellant improperly failed
to prevent the unauthorized individual from using the school van, despite having been
on clear notice that the individual was not an authorized driver. PFR File, Tab 6 at 4;
ID at 2-9. We deny the appellant’s motion because, although the affidavit itself may
have been unavailable prior to the close of the record, the appellant has not shown that
the information contained in the affidavit is new. See Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989) (explaining that, to constitute new
evidence, the information contained in the documents, not just the documents
themselves, must have been unavailable despite due diligence when the record closed);
5 C.F.R. § 1201.115(d). Moreover, the appellant has failed to show that the information
in the affidavit is material because he has not shown how this evidence provides a basis
for reversing the initial decision in which the administrative judge found that the
penalty of demotion was reasonable based on the agency’s proof of all five of its
specifications in support of its conduct unbecoming charge as well as both
specifications in support of its lack of candor charge. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (concluding 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); see
also Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (finding
5
charge, to the extent the appellant argues that his statements on March 13 and 16,
2019, were not inconsistent, PFR File, Tab 1 at 17, such an argument amounts to
mere disagreement with the administrative judge’s finding that the appellant’s
statement that he did not know what services were rendered by a non-DoDEA
individual was false because 3 days later he provided a detailed list of services
provided by such individual, ID at 31-34; see, e.g., 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
& Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The administrative judge properly found that the appellant failed to prove that he
made a protected disclosure.
The appellant contends that he made a protected disclosure when he
reported an incident in which he believed that a teacher had abused the agency’s
sick leave policy by traveling to Cyprus when she was purportedly at home
resting per her doctor’s note. IAF, Tab 15 at 55; PFR File, Tab 1 at 18. The
appellant’s belief appears to have been based on the employee updating her cover
photo on Facebook and indicating that the photo was of Cyprus. IAF, Tab 15
at 110. The record reflects that, on October 30, 2018, the appellant emailed
another employee and carbon copied his supervisor concerning the situation and
asked, “How should I handle this one?” Id. at 108. The employee responded by
stating, “As far as the facebook post, it could be a photo from a different time and
if not, while it feels bad--where she recovers from surgery is not really our issue.”
Id. at 107.
The administrative judge found that the appellant failed to prove that this
email amounted to a protected disclosure because it failed to present any clue that
it was identifying serious agency misconduct. ID at 46. The Board has held that
that, when more than one event or factual specification is set out to support a single
charge, proof of one or more of the supporting specifications is sufficient to sustain the
charge).
6
reporting time and attendance abuse can amount to a protected disclosure. See,
e.g., Grubb v. Department of the Interior , 96 M.S.P.R. 361, ¶ 12 (2004) (finding
that the appellant’s specific allegations concerning time and attendance abuse that
were based on her personal observations and supported by documentation
amounted to a disclosure of a violation of law, rule, or regulation). Here,
however, we find that a disinterested observer would not have concluded based on
the updating of a Facebook cover photo, without further action or investigation,
that this employee was engaging in time and attendance abuse. See, e.g.,
Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 11 (2016) (stating that
a reasonable belief exists if a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the appellant could
reasonably conclude that the actions of the Government evidence one the
categories of wrongdoing listed in section 2302(b)(8)(A)). Absent any other
explanation or argument concerning the reasonableness of the appellant’s belief,
we find that the appellant has failed to prove by preponderant evidence that he
reasonably believed that he was disclosing one of the categories of wrongdoing
set forth in 5 U.S.C. § 2302(b)(8)(A).
Although the administrative judge found that the appellant failed to prove
that he raised nonfrivolous allegations that he made a protected disclosure, ID
at 47, the appellant bears the burden of proving his affirmative defense of
whistleblower reprisal by preponderant evidence, see, e.g., Shibuya v. Department
of Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013) (explaining that once the agency
proves its adverse action case by preponderant evidence, the appellant must show
by preponderant evidence that he made a protected disclosure that was a
contributing factor in the agency’s personnel action). Thus, we modify the initial
decision to find that the appellant failed to meet his burden of proof under the
preponderant evidence standard.
The appellant appears to assert that he made additional protected
disclosures regarding that same teacher publishing a podcast containing offensive
7
comments about individuals at the school. IAF, Tab 15 at 54-56; PFR File, Tab 1
at 18-19. Such claims, however, were not included as part of the accepted issues
in the Order and Summary of Close of Record Conference, which solely
identified his October 30, 2018 email as his alleged protected disclosure, and the
administrative judge did not analyze or mention them in the initial decision. IAF,
Tab 13 at 5, Tab 16. The Board considers a nonexhaustive list of factors in
determining whether an appellant is deemed to have waived or abandoned a
previously identified affirmative defense. Thurman v. U.S. Postal Service ,
2022 MSPB 21, ¶¶ 17-18. The relevant factors include the following: (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 affirmative defense was the
product of confusion, or misleading or incorrect information provided by the
agency or the Board. Id., ¶ 18. The list is not exhaustive, and none of the
individual factors identified will be dispositive. Id. Instead, the applicability and
weight of each factor should be determined on a case-by-case basis. Id.
In this case, nearly every one of the factors points to the conclusion that the
appellant abandoned his affirmative defense. Regarding the first and second
factors, we find that the appellant was not thorough, clear, or consistent in raising
this protected disclosure. The appellant’s initial appeal only clearly referenced
8
his protected disclosure on October 30, 2018, concerning the teacher’s alleged
sick leave abuse.4 IAF, Tab 1 at 41. When discussing the contributing factor
element, the appellant asserted that his supervisor was aware of an investigation
the appellant started into a parent complaint about a teacher’s podcast, but he did
not clearly explain any alleged disclosure he made related to the teacher’s
podcast. Id. at 42. In his close of record submission filed on the date the record
closed, the appellant referenced for the first time, without clear explanation or
citation to any record evidence, additional alleged protected disclosures he made
on five separate dates concerning alleged offensive remarks the teacher made in
her podcast. IAF, Tab 15 at 54-56. Moreover, the agency believed the sole
protected disclosure at issue in the appeal was the appellant’s October 30, 2018
email and did not address any other disclosures. IAF, Tab 4 at 12, Tab 14
at 23-25. Regarding the third factor, the appellant did not object to the
administrative judge’s summary of the issues in the close of record order, which
stated that the appellant’s identified protected disclosure was an email he sent on
October 30, 2018. IAF, Tab 13 at 5. The order specifically notified the appellant
that additional issues not identified in the summary would be precluded and
afforded him an opportunity to object. Id. at 1, 6. Regarding the fourth factor,
the appellant has reiterated his claim on review, PFR File, Tab 1 at 18-19, so we
will consider that as a challenge to the administrative judge’s failure to adjudicate
the claim. Regarding the fifth factor, the appellant has been represented by an
attorney during his proceedings before the Board. Finally, regarding the sixth
factor, there is nothing in the record to indicate that the appellant’s presumptive
abandonment of this alleged protected disclosure was the product of confusing,
misleading, or incorrect information provided by the agency or the Board. Under
4 To the extent the appellant refers to an October 30, 2018 email disclosure to his
supervisor regarding the teacher’s podcast, IAF, Tab 15 at 17, 55; PFR File, Tab 1
at 18, he has not cited to any evidence in the record and we are unable to locate such an
email. Rather, the record appears to reflect that this alleged disclosure occurred on
December 12, 2018. IAF, Tab 15 at 55, 116.
9
these circumstances, we deem the appellant to have abandoned his claim of
reprisal based on his alleged disclosure concerning offensive remarks made by a
teacher in her podcast.
The administrative judge properly found that the penalty of demotion was
reasonable.
When, as here, all of the agency’s charges are sustained, the Board will
review the agency-imposed penalty only to determine if the agency considered all
of the relevant factors and exercised management discretion within the tolerable
limits of reasonableness. Pinegar v. Federal Election Commission , 105 M.S.P.R.
677, ¶ 53 (2007); see 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). In making this
determination, the Board must give due deference 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. Pinegar, 105 M.S.P.R. 677,
¶ 53. The Board will modify or mitigate an agency-imposed penalty only when it
finds that the agency failed to weigh the relevant factors or that the penalty
clearly exceeds the bounds of reasonableness. Id.
On review, the appellant disagrees with the administrative judge’s findings
that the deciding official appropriately weighed the Douglas factors and the
agency’s penalty was therefore entitled to deference. PFR File, Tab 1 at 25-28.
In particular, he asserts that his lack of prior discipline, positive work record, and
potential for rehabilitation outweigh the nature and seriousness of the offense. Id.
at 26-28. However, we agree with the administrative judge that the record
reflects that the deciding official considered the appellant’s lack of prior
discipline as well as his 18 years of service and positive work performance but
found that the nature and seriousness of the offenses and the appellant’s status as
a principal and supervisor at a remote location overseas outweighed such factors.
10
ID at 48-52. The deciding official further considered the appellant’s potential for
rehabilitation but found that he did not show any such potential because he failed
to acknowledge responsibility for his actions or demonstrate remorse in his reply.
ID at 51. Thus, although the appellant may disagree with the demotion penalty,
we discern no error in the administrative judge’s determination that demotion was
within the tolerable limits of reasonableness and the agency’s selected penalty of
demotion to a nonsupervisory position was entitled to deference. See Crosby,
74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359; see also Martin v.
Department of Transportation , 103 M.S.P.R. 153, ¶ 13 (2006) (noting that
agencies are entitled to hold supervisors to a higher standard of conduct than
nonsupervisors because they occupy positions of trust and responsibility), aff’d,
224 F. App’x 974 (Fed. Cir. 2007).
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.
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
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 you
12
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. | Tran_DavidDC-0752-19-0758-I-1__Final_Order.pdf | 2024-05-03 | DAVID TRAN v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-19-0758-I-1, May 3, 2024 | DC-0752-19-0758-I-1 | NP |
1,562 | https://www.mspb.gov/decisions/nonprecedential/McClay_Wilbert_A_DC-315H-19-0472-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILBERT A. MCCLAY,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-315H-19-0472-I-1
DATE: May 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wilbert A. McClay , Alexandria, Virginia, pro se.
Tracy Gonos , Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant does not dispute that he was serving in a
probationary period at the time he was terminated but instead challenges the
administrative judge’s determination that he received notice of his termination on
April 9, 2019, arguing instead that he did not receive notice until 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).
day, April 10, 2019; challenges the agency’s reason for terminating him; and
disputes the administrative judge’s assertion that he did not retain counsel despite
being afforded the opportunity to do so. 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).
Regarding the appellant’s argument that the administrative judge
erroneously stated that the appellant received notice of his removal on
April 9, 2019, instead of April 10, 2019, which the agency acknowledges, the
record shows that although the appellant’s probationary termination letter is dated
April 9, 2019, it has a hand-written annotation stating that it was delivered to the
appellant on April 10, 2019, so the administrative judge’s statement was in error.
See Petition for Review (PFR) File, Tab 5 at 7; Initial Appeal File (IAF), Tab 10
at 11; Tab 11, Initial Decision at 2. Nevertheless, any such error was immaterial
to the outcome of the appeal, as it is undisputed that the appellant actually
received the termination letter by the effective date of his termination.
See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding
that an adjudicatory error that was not prejudicial to a party’s substantive rights
provided no basis for reversal of an initial decision).
Regarding the appellant’s claim that, despite the administrative judge’s
assertion otherwise, he did in fact obtain legal representation, the appellant
provides a copy of a certificate of service the agency sent with its response to the
administrative judge’s jurisdictional order, which identifies the appellant’s2
representative and certifies that the filing was sent to his representative.
PFR File, Tab 1 at 9; see IAF, Tab 10 at 8. Although it appears that the appellant
may have informed the agency that he had obtained representation before the
initial decision was issued, neither the appellant nor the appellant’s representative
filed a designation of representative as required by Board regulations, and none
of the appellant’s filings with the Board identified his representative. See
5 C.F.R. § 1201.31(a) (indicating that an appellant must designate his
representative, if any, in a signed submission); IAF, Tabs 1, 5-7, 9.
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
2 The appellant has submitted additional documents with his petition for review, and a
supplemental filing consisting of an audio recording. PFR File, Tab 1 at 6-8; Tab 2.
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 newly submitted 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). The appellant acknowledges that all of the evidence
predates the initial decision and does not assert that any of the documents were first obtained
after the initial decision was issued. See Avansino, 3 M.S.P.R. at 214. Accordingly, we have not
considered it.3
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.
3 In its response to the appellant’s petition for review, the agency requests that the
Board re-caption the case to identify the agency subcomponent, the United States Patent
and Trademark Office (USPTO), as the respondent agency, arguing that it maintains
“independent control of its personnel decisions and other administrative and
management functions” from the Department of Commerce. PFR File, Tab 5 at 4 n.1.
The Board generally does not identify an agency subcomponent as the respondent in
appeals before the Board. See, e.g., Searcy v. Department of Commerce, 114 M.S.P.R.
281 (2010) (identifying the Department of Commerce as the respondent agency in an
involuntary resignation appeal filed by a USPTO employee); Dixon v. Department of
Commerce, 109 M.S.P.R. 314 (2008) (identifying the Department of Commerce as the
respondent agency in the appeal of an arbitrator’s decision sustaining the removal of a
USPTO employee). Additionally, in analogous circumstances, the Board has declined
an agency’s request to re-caption a case. See Doe v. Department of Justice,
95 M.S.P.R. 198 n.2 (2003) (denying the agency’s request to re-caption the case, in
order to reduce the possibility of confusion, where the agency subcomponent was
abolished and its functions were transferred to a newly created agency). Accordingly,
we deny the agency’s request.
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
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 you5
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.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. 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 | McClay_Wilbert_A_DC-315H-19-0472-I-1__Final_Order.pdf | 2024-05-03 | WILBERT A. MCCLAY v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-315H-19-0472-I-1, May 3, 2024 | DC-315H-19-0472-I-1 | NP |
1,563 | https://www.mspb.gov/decisions/nonprecedential/Downs_JuliaDC-1221-21-0223-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIA DOWNS,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-1221-21-0223-W-1
DATE: May 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
George M. Chuzi , Esquire, Washington, D.C., for the appellant.
Kristin Murrock , Esquire, Suitland, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
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 appellant, a GS-15 Assistant Division Chief for Human Resources
Policy, Talent Development, and Performance Management within the Human
Resources Division of the agency’s Census Bureau (CB), filed an appeal with the
Board alleging that agency officials took several actions against her in retaliation
for her disclosures to agency management, the agency’s Office of Inspector
General (IG or OIG), and the Office of Special Counsel (OSC). Initial Appeal
File (IAF), Tab 1 at 1, 4, Tab 9 at 6-9. With her appeal, the appellant submitted a
December 4, 2020 letter from OSC advising her that it had terminated its inquiry
into her allegations. IAF, Tab 1 at 4-5.
The administrative judge issued an order setting forth the appellant’s
burden to establish the Board’s jurisdiction over her IRA appeal. IAF, Tab 3.
The appellant submitted an unsworn response. IAF, Tab 9 at 3. In her response,
she provided details regarding her purported disclosures and activities. Id.
at 6-14. Specifically, she identified them as follows:
1.In January 2020, [she] disclosed to [the Chief Human Capital
Officer] and the IG [her first-level supervisor’s] gross waste of
$145,000 and abuse of authority regarding the performance
management pilot project;
2.On May 19, 2020, [she] disclosed to the OSC [her second -level
supervisor’s] violation of law, rule, or regulation regarding
Census’[s] implementation of COVID leave, presenting a
substantial and specific danger to public health or safety; and
3.On August 11, 2020, [she] disclosed to [the CB Director, CB
Deputy Director, and the appellant’s first- and second-level
supervisors] [her second-level supervisor’s] gross
mismanagement regarding Census’[s] implementation of COVID
leave, presenting a substantial and specific danger to public health
or safety.
Id. at 9-10.
The administrative judge issued an initial decision based on the written
record, dismissing the appeal for lack of jurisdiction. IAF, Tab 15, Initial
Decision (ID) at 1, 6-7. Specifically, after apprising the appellant of her2
jurisdictional burdens and considering the parties submissions on the issue, he
found that the appellant failed to prove that she exhausted her OSC remedy as to
the disclosures and activities she raised on appeal. IAF, Tabs 3, 9-10; ID at 4-6.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded to the appellant’s
petition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
the Board has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she 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). Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence. Id. If the appellant proves that her protected disclosure
or activity was a contributing factor in a personnel action taken against her, 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 or activity. 5 U.S.C. § 1221(e)(1)-(2); Salerno, 123 M.S.P.R. 230, ¶ 5.
The appellant proved exhaustion of her claimed protected activities and protected
disclosures 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” through an
IRA appeal. Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3,
¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). The substantive3
requirements of exhaustion are met when an appellant has provided OSC with a
sufficient basis to pursue an investigation. Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶ 10. The Board’s jurisdiction over an IRA appeal is
limited to those issues that have been previously raised with OSC, but appellants
may give a more detailed account of their whistleblowing activities before the
Board than they did to OSC. Id. An appellant may demonstrate exhaustion
through her initial OSC complaint, evidence that she amended the original
complaint, including but not limited to OSC’s determination letter and other
letters from OSC referencing any amended allegations, and the appellant’s written
responses to OSC referencing the amended allegations. Mason v. Department of
Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011).
In this case, the administrative judge found the appellant’s submissions
insufficient to prove by preponderant evidence that she exhausted her
administrative remedies before OSC. ID at 4-6. The administrative judge
reasoned that her submissions lacked necessary details and failed to reflect “that
the disclosures and personnel actions alleged in her [OSC] complaint match[ed]
the allegations made to the Board.”2 Id.
The appellant exhausted the activity and disclosure she identified as
“disclosure (1).”
On review, the appellant argues that the allegations she made to OSC, as
reflected in its December 4, 2020 letter, were sufficient to meet her exhaustion
requirement as to disclosure (1). PFR File, Tab 1 at 10-14. We agree.
2 The appellant argues on review that the administrative judge erred in finding that the
jurisdictional response she submitted below was entitled to little probative weight. PFR
File, Tab 1 at 19; ID at 4. We find it unnecessary to reach this argument. The
appellant’s jurisdictional response did not assert any additional details regarding the
information she provided to OSC in connection with her reprisal claim. Rather, it
provided further information regarding her underlying alleged protected disclosures and
activities. IAF, Tab 9. Therefore, its probative weight is not relevant to the exhaustion
issue, and any error by the administrative judge did not affect his analysis. 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). 4
As alleged in more detail below, the appellant alleged that her first-level
supervisor unilaterally “de-scop[ed] a performance management pilot project”
that had been approved by high-level agency officials, “thereby wasting
approximately $145,000.” IAF, Tab 9 at 6. She alleged that she disclosed these
facts, which she argued she reasonably believed amounted to a gross waste of
funds, to the Chief Human Capital Officer in January 2020. Id. She further
asserted that she “made this same disclosure to the [agency’s OIG]” around the
same time. Id. The appellant’s claim appears to align with her complaint, as
identified by OSC, that agency officials retaliated against her for reporting to
management, on an unidentified date, and to the agency’s OIG “around February
2020,” that “management . . . inappropriately ordered the de-scoping of a HR
pilot project.” IAF, Tab 1 at 4.
Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity
when she cooperates with, or discloses information to, an agency’s OIG or OSC.
Disclosures of information to an agency’s OIG or to OSC are protected,
regardless of their content, as long as such disclosures are made “in accordance
with applicable provisions of law.” Fisher v. Department of the Interior ,
2023 MSPB 11, ¶ 8. In the initial decision, the administrative judge did not
consider whether the appellant was alleging that she engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(C) when she disclosed the information regarding
de-scoping to the OIG. We conclude that this was error and find that the
appellant exhausted her administrative remedies with OSC regarding this claim.
Although the appellant has not provided a copy of her OSC complaint, the
OSC letter identifies her claim that “around February 2020,” she made a
disclosure to the agency’s OIG regarding the de-scoping of an HR pilot project
that caused the agency to take certain personnel actions against her. IAF, Tab 1
at 4. As previously noted, disclosures to the OIG are protected without regard for
the content of such disclosures. Fisher, 2023 MSPB 11, ¶ 8. Accordingly, we5
find that she proved by preponderant evidence that she exhausted her
administrative remedy regarding this activity.
We also find that the appellant exhausted with OSC her claim that she
made this same de-scoping disclosure to management. We note that, as the
administrative judge observed, the appellant has not claimed that she advised
OSC as to whom in management she made her de-scoping disclosure or how her
disclosure “led to each personnel action.” IAF, Tab 1 at 4; ID at 5.
Nonetheless, the appellant, who was pro se below, submitted the
December 4, 2020 OSC letter identifying an allegation of retaliation for reporting
to management a gross waste of funds and an abuse of authority in connection
with de-scoping an HR pilot project. IAF, Tab 1 at 4. We find that these
allegations to OSC, apparently made without the benefit of representation,
provided OSC with a sufficient basis to pursue an investigation, and thus the
appellant established that she exhausted her remedies as to this disclosure.
The appellant exhausted her protected activity of making a
disclosure to OSC, which she identified as “disclosure (2).”
The appellant argues on review that the disclosure she made to OSC, as
reflected in its December 4, 2020 letter, was sufficient to meet her exhaustion
requirement as to disclosure (2). PFR File, Tab 1 at 10-14. The administrative
judge found that she failed to exhaust disclosure (2) with OSC, reasoning that she
failed to mention to whom the disclosure was made, which personnel actions
occurred as a result, or who was responsible for taking the actions. ID at 5-6.
We disagree with the administrative judge.
As previously indicated, disclosures to OSC are protected activity under
5 U.S.C. § 2302(b)(9)(C). Fisher, 2023 MSPB 11, ¶ 8. Further, filing an OSC
complaint seeking to remedy reprisal for protected whistleblowing is a protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), and thus within the Board’s IRA
jurisdiction. See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 10 (2016)
(explaining that a claim of retaliation for filing a prior Board appeal that included6
a claim of whistleblower reprisal was a protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i)); see also Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 7 (2013) (recognizing that the WPEA expanded the Board’s
IRA jurisdiction to include reprisal for activity under 5 U.S.C. § 2302(b)(9)(A)
(i)). Here, the appellant identified in her jurisdictional response that, in May
2020, she made disclosure (2) to OSC. IAF, Tab 9 at 7. In particular, she alleged
that she disclosed to OSC “that [CB] violated [agency] Human Resources Bulletin
#243 by, initially, refusing to implement the regulation and then by adding
Census-specific stipulations unauthorized by the Bulletin for employees to
qualify for COVID leave.” Id. The OSC closure letter similarly identifies that
“[she] alleged that management failed to properly offer CB employees leave in
connection with the coronavirus pandemic.” IAF, Tab 1 at 4. Although the OSC
letter does not specify when she disclosed this information to OSC, it indicates
that she filed her OSC complaint in May 2020. Thus, we find that the OSC letter
contains sufficient information to prove that she brought this claim before OSC.
Accordingly, we find that she showed by preponderant evidence that she
exhausted her administrative remedy regarding her claim of reprisal for filing an
OSC complaint seeking to remedy whistleblower reprisal or disclosing
information to OSC in May 2020.
The appellant exhausted with OSC what she identified as “disclosure
(3).”
On review, the appellant also argues that the information she provided to
OSC, as reflected in its December 4, 2020 letter, was sufficient to meet her
exhaustion requirement as to disclosure (3). PFR File, Tab 1 at 10-15. We agree.
The administrative judge found that she could not meet the exhaustion
requirement because she alleged that she made this disclosure to the agency after
she filed her OSC complaint, and there was no evidence of an amendment to her
OSC complaint in the record. ID at 6. However, an appellant may prove she
exhausted any amendments to her complaint by presenting OSC’s determination7
letter or other letters from OSC referencing the amended allegations. Mason,
116 M.S.P.R. 135, ¶ 8. As such, to the extent the administrative judge found that
she failed to prove exhaustion because the disclosure occurred after she filed her
complaint in May 2020, this was error. ID at 6.
Below, the appellant alleged that, in August 2020, she reported to agency
leadership, with a copy to her first- and second-level supervisors, her belief “that
adding two pages of Census-specific stipulations for employee eligibility for the
COVID leave benefit constituted gross mismanagement” and a substantial and
specific danger to public health or safety. IAF, Tab 9 at 8, 10. This appears to
align with the appellant’s claim, identified in the December 4, 2020 OSC letter,
that she disclosed to the agency that “management failed to properly offer CB
employees leave in connection with the coronavirus pandemic [and] reviewed
employee personnel documents to avoid providing that leave.” IAF, Tab 1 at 4.
We note that OSC’s letter does not indicate that the appellant advised OSC
as to when she purportedly made this disclosure or to whom in management it
was made. Id. Further, the specific nature of the wrongdoing appears to have
changed from her OSC complaint to her jurisdictional response to the Board.
While she alleged to OSC that CB failed to offer COVID-related leave, she
alleges below that CB added requirements that created a stumbling block for use
of that leave. IAF, Tab 1 at 4, Tab 9 at 8. Nonetheless, applying the reasoning
from Briley v. National Archives and Records Administration , 236 F.3d 1373,
1378 (Fed. Cir. 2001), and Tuten v. Department of Justice , 104 M.S.P.R. 271, ¶ 6
(2006), we conclude that the appellant’s allegation to OSC identified her core
claim that she disclosed to the agency that CB was interfering with employees’
ability to take what she identified as COVID leave.
The appellant made nonfrivolous allegations that she engaged in protected
activities.
We have found that the appellant exhausted with OSC all of the following
alleged protected disclosures and activities: (1) her activity of disclosing8
information to the agency’s OIG regarding the de-scoping of a pilot project and
her disclosure to management of the same information; (2) her activity of
disclosing to OSC information regarding the agency’s implementation of COVID
leave; and (3) her disclosure to CB managers and supervisors regarding CB
interfering with employees’ use of COVID-related leave. As to the exhausted
activities and disclosures, the next jurisdictional inquiry is whether the appellant
nonfrivolously alleged that they were protected under the WPEA. See Salerno,
123 M.S.P.R. 230, ¶ 5.
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.”3
Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir.
2020). Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of affording the appellant a
hearing. Grimes v. Department of the Navy , 96 M.S.P.R. 595, ¶ 12 (2004).
Whether the appellant’s allegations can be proven on the merits is not part of the
jurisdictional inquiry. Lane v. Department of Homeland Security , 115 M.S.P.R.
342, ¶ 12 (2010).
For the reasons discussed above, we find that the appellant nonfrivolously
alleged that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C)
when she made disclosures to the OIG and OSC because such activities fall
within the protective umbrella of the WPEA without regard to their content. IAF,
Tab 1 at 4, Tab 9 at 6-7, 9; see Fisher, 2023 MSPB 11, ¶ 8.
We now consider whether the appellant made a nonfrivolous allegation that
her exhausted disclosures to agency management are protected disclosures under
5 U.S.C. § 2302(b)(8). A nonfrivolous allegation of a protected disclosure is an
3 Although Board regulations specify that nonfrivolous allegations are generally sworn,
5 C.F.R. § 1201.4(s), the Board has declined to impose such a requirement, Edem v.
Department of Commerce , 64 M.S.P.R. 501, 505-06 (1994). Therefore, we have
considered the appellant’s unsworn jurisdictional response.9
allegation of facts 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,
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, regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Id. (citing Lachance v. White , 174 F.3d 1378, 1380-81
(Fed. Cir. 1999)). The disclosures must be specific and detailed, not vague
allegations of wrongdoing. Id.
With respect to her alleged disclosure to management, which she identified
under “disclosure (1),” i.e., that her first-level supervisor engaged in a gross
waste of funds and abused her authority by “unilaterally de-scoping” a pilot
project, we find that the appellant failed to nonfrivolously allege that she
disclosed what a reasonable person in her position would believe was wrongdoing
within the scope of 5 U.S.C. § 2302(b)(8). IAF, Tab 9 at 6. A “gross waste of
funds” is a more than debatable expenditure that is significantly out of proportion
to the benefit reasonably expected to accrue to the Government. Smith v.
Department of the Army , 80 M.S.P.R. 311, ¶ 8 (1998). An abuse of authority
occurs when an agency’s exercise of its authority is inconsistent with its mission.
See Smolinski v. Merit Systems Protection Board , 23 F. 4th 1345, 1352 (Fed. Cir.
2022).
The appellant specified that “approximately $145,000” was wasted when
her first-level supervisor “unilaterally de-scop[ed] a performance management
pilot project” approved by higher-level CB management. IAF, Tab 9 at 6, 10.
However, she did not explain the basis for her belief that it was a gross waste of
funds or how it was wasteful, i.e., significantly out of proportion to the benefits10
reasonably expected to accrue. Id. She also did not indicate what “de-scoping”
is, why it was inappropriate, or the basis for her belief that it was an abuse of
authority besides identifying that the pilot project was originally approved by
high-level agency officials. Id. She did not claim the de-scoping was
inconsistent with the agency’s mission or that her supervisor lacked the authority
to de-scope the project. Therefore, we find that the alleged disclosure lacks the
specificity necessary for the Board to find that she made a nonfrivolous allegation
of a protected disclosure. See Graves v. Department of Veterans Affairs ,
123 M.S.P.R. 434, ¶¶ 7, 9 (2016) (finding that an appellant’s vague allegations
that he reported to the agency gross mismanagement and a gross waste of funds
without further details regarding the nature of his alleged protected disclosures
did not satisfy the Board’s nonfrivolous allegation standard).
We turn next to disclosure (3). The appellant alleged below that, on
August 11, 2020, she advised CB managers and supervisors via email of her
belief that CB acted improperly by adding CB-specific stipulations to employees’
use of what she termed “COVID leave.”4 IAF, Tab 9 at 8. Both the appellant and
4 The appellant did not provide a copy of her email. However, the agency submitted an
August 2020 email exchange between the appellant and her supervisor regarding the
appellant’s request for paid time for dependent care and an agency policy concerning
this benefit, identified as Human Resources (HR) Bulletin #243. IAF, Tab 10 at 19-21,
23-25. We have considered this email exchange and policy to the extent that they
support a finding that the appellant nonfrivolously alleged that she made a protected
disclosure. See Smolinski, 23 F. 4th at 1352 (holding that it is proper to consider record
evidence referenced by an appellant for purposes of determining whether an individual
nonfrivolously alleged that he made a protected disclosure). According to the August
2020 exchange with her supervisor, provided by the agency, on August 13, 2020, her
supervisor advised her that she could not “approve [the appellant’s] leave request for
4 hours of paid excused absence for dependent care.” IAF, Tab 10 at 24. Specifically,
she advised that CB policy guidance required employees to use other categories of leave
entitlements prior to being granted paid excused absences and requested that the
appellant resubmit her leave request in accordance with that guidance. Id. On
August 14, 2020, the appellant responded, stating, among other things, that she
“executed the unlawful order” to change her leave request and that “[she] know[s] that
this decision [requiring her to first exhaust] pay (e.g.[,] [leave under the Emergency
Paid Sick Leave Act provision of the Families First Coronavirus Response Act] 2/3 pay
for childcare) and benefits (e.g.[,] using personal leave or compensatory or travel time)11
the agency referred, at times, to the benefit in question as “leave.” IAF, Tab 10
at 23-25. However, it is clear from the record that the benefit was not leave, but
rather “up to 20 hours of excused absence per pay period” to care for dependent
family members if their school or care was otherwise “not available due to the
pandemic.” Id. at 20, 23-25.
The appellant objected to the agency’s requirement that she first exhaust
accrued credit hours or other available leave before receiving paid time for
dependent care. IAF, Tab 9 at 8, 10. She alleged that this requirement was
“gross mismanagement . . . presenting a substantial and specific danger to public
health or safety.” Id. Gross mismanagement is a management action or inaction
that creates a substantial risk of significant adverse impact on the agency’s ability
to accomplish its mission. Swanson v. General Services Administration ,
110 M.S.P.R. 278, ¶ 11 (2008). The statutory protections for whistleblowers are
not a weapon in arguments over policy or a shield for insubordinate conduct.
Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 8 (2015). General
philosophical or policy disagreements with agency decisions that “lawfully
exercise discretionary authority” are not protected unless the appellant has a
reasonable belief that the disclosed information separately evidences one of the
categories of wrongdoing listed in section 2302(b)(8)(A). 5 U.S.C. § 2302(a)(2)
(D); Webb, 122 M.S.P.R. 248, ¶ 8.
The appellant here alleged that the CB-specific stipulations to the agency’s
provision of paid excused absences connected with the coronavirus pandemic
“erod[ed] [CB] employees’ trust in the honesty and transparency of management,
thereby creating a substantial risk of a significant, adverse impact on the
[a]gency’s ability to execute its mission.” IAF, Tab 9 at 8. This vague assertion
did not explain how the agency’s action created a substantial risk of a significant
adverse impact upon its ability to accomplish its mission. Nor did the appellant
is contrary to Merit System Principles in accordance with 5 USC Section 2302(b)(12)
and constitutes a Prohibited Personnel Practice.” Id. at 23-24.12
provide sufficient information for us to infer such a finding. Rather, her
disclosure appears to challenge the agency’s conditions for employees’ use of
paid excused absences, which amounts to a disagreement with a lawful exercise
of discretionary authority. See Webb, 122 M.S.P.R. 248, ¶¶ 2, 8-10 (finding that
the appellant’s position paper disagreeing with the agency’s lawful decision
regarding how to carry out a required restructuring was a policy disagreement).
Therefore, we conclude that the appellant failed to nonfrivolously allege that she
reasonably believed that she disclosed gross mismanagement.
The appellant also alleged that disclosure (3) was protected because it
revealed a substantial and specific danger to public health or safety. IAF, Tab 9
at 10. We are not persuaded. In determining whether a disclosure evidenced a
substantial and specific danger to public health or safety, it is appropriate for the
Board to consider factors such as the likelihood of harm resulting from the
danger. Chambers v. Department of the Interior , 515 F.3d 1362, 1369 (Fed. Cir.
2008). A disclosure of a speculative danger is insufficient. Id.; Miller v
Department of Homeland Security , 111 M.S.P.R. 312, ¶ 6 (2009).
Here, the appellant alleged that the CB-specific stipulations created an
increased risk of COVID exposure to employees and their children when
employees could not otherwise take leave. IAF, Tab 9 at 10 n.5. The problem
with this claim is that, as alleged by the appellant, the agency made excused
absences available to precisely those employees who lacked leave or other
options. Thus, no reasonable person in the appellant’s position could conclude
that the CB-specific stipulations would prevent employees without leave from
using the paid excused absence benefit for dependent care. Nor has she identified
any other reasonable basis to believe that the agency’s limitations on this benefit
increased potential COVID exposure.
To the extent that the appellant alleged that disclosure (3) is protected as an
allegation of a violation of a law, rule, or regulation, we are not persuaded. She
failed to identify or explain how the stipulations ran afoul of any law, rule, or13
regulation. IAF, Tab 9 at 8. The Office of Personnel Management explained in a
fact sheet that, during the COVID-19 pandemic, agencies had multiple options for
telework-eligible employees with caregiving responsibilities, including the “broad
management authority to grant excused absences with pay.” See Fact Sheet -
Options for Telework-Eligible Employees with Caregiving Responsibilities ,
https://www.opm.gov/policy-data-oversight/covid-19/options-for-telework-
eligible-employees-with-caregiving-responsibilities/ (last visited May 1, 2024).
However, this fact sheet advised agencies to grant such paid absences “sparingly”
and did not preclude agencies from exercising discretion in granting this leave.
Id.
Further, the requirement that employees first exhaust other leave and use
credit hours does not violate the agency’s written policy with regards to the
granting of such paid absences. IAF, Tab 10 at 19-21. The policy itself states
that paid excused absences are not a substitute for the use of sick leave when
appropriate, and that “flexible alternative schedule[s]” should be considered
before awarding paid excused absences. Id. at 20. Thus, we find that a
disinterested person with knowledge of the essential facts would not believe that
the CB-specific stipulations violated any rule, law, or violation. Further, given
the nature of her position “as the manager and subject matter expert for Human
Resources Policy and Performance Management,” we find that the appellant could
not reasonably believe that the CB-specific stipulations evidenced any of the
situations specified in 5 U.S.C. § 2302(b)(8). IAF, Tab 9 at 9; see Webb,
122 M.S.P.R. 248, ¶ 12 n.5 (finding an appellant’s involvement with, and
understanding of, the subject matter may go to whether he had a reasonable belief
that he disclosed a violation of a law, rule, or regulation). Thus, we find that the
appellant failed to make a nonfrivolous allegation that she made a protected
disclosure.14
The appellant nonfrivolously alleged that the agency subjected her to several
covered personnel actions.
The appellant argues generally that her allegations are nonfrivolous but
does not present specific arguments regarding the claimed personnel actions.
PFR File, Tab 1 at 20-24. The administrative judge did not reach the issue of
whether the appellant made a nonfrivolous allegation that the agency took
personnel actions against her. Therefore, we consider in the first instance here
those personnel actions alleged by the appellant in her jurisdictional response.
IAF, Tab 9 at 10.
The appellant alleged below that the agency took the following retaliatory
personnel actions against her between February and October 2020. According to
the appellant, in February 2020, the agency “significantly diminished her duties”
in retaliation for her the de-scoping disclosure she made to the agency’s OIG. Id.
at 6-7, 10. On August 13, 2020, her first-level supervisor rescinded her prior
approval of the appellant’s request for 20 hours of paid leave in retaliation for her
disclosure to CB managers and supervisors that CB was interfering in employees’
use of COVID leave. Id. at 8-9. On September 1, 2020, her second -level
supervisor notified her that, effective September 7, 2020, she would be
involuntarily detailed to a nonsupervisory position in retaliation for this same
disclosure. Id. at 8. She also alleged that, on October 7, 2020, her first- and
second-level supervisors rated her performance appraisal for fiscal year (FY)
2020 as lower than she deserved in retaliation for her disclosure to the agency’s
OIG and her disclosure to CB regarding COVID leave. Id. at 9-10. Because we
have found that the appellant failed to nonfrivolously allege that her August 2020
disclosure was protected, we need not consider further the alleged August 13,
2020 denial of leave, or the September 2020 detail.
We next turn to the appellant’s claim that the agency diminished her duties
in February 2020. A diminishment in duties is not an enumerated personnel
action under the WPEA. See 5 U.S.C. § 2302(a)(2)(A). However, a significant15
change in working conditions and duties is a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xii). In determining whether an appellant has suffered a
significant change in her working conditions, the Board considers 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. Skarada v. Department of Veterans Affairs , 2022 MSPB 17,
¶ 16.
The appellant alleged below that her first-level supervisor did not appoint
her to a COVID taskforce. IAF, Tab 9 at 6-7. She also claimed that this
supervisor “excluded [her] from all matters related to Human Resources Policy
and significant parts of the Human Resources Talent Development and
Performance Management portfolio,” which “removed her ability to execute more
than half of her portfolio.” Id. We find that these allegations constitute a
nonfrivolous allegation of a significant change in duties or responsibilities. See
Skarada, 2022 MSPB 17, ¶¶ 17-18 (finding that the appellant nonfrivolously
alleged that the agency subjected him to a significant change in duties,
responsibilities, or working conditions when he alleged that, among other actions,
his chain of command directed him to stop attending leadership meetings and
performing certain extra duties).
The appellant has also nonfrivolously alleged that her FY 2020 reduced
performance appraisal constituted a personnel action. IAF, Tab 9 at 9-10, Tab 10
at 29-39. A performance evaluation is a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(viii).5
The appellant made a nonfrivolous allegation that one protected activity was a
contributing factor in two personnel actions.
The final jurisdictional inquiry is whether the appellant has nonfrivolously
alleged that her protected activity or disclosure was a contributing factor in the
5 The appellant exhausted her performance evaluation and hostile work environment
claims before OSC. IAF, Tab 1 at 4.16
agency’s decision to take, fail to take, or threaten to take or fail to take a
personnel action. Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. §§ 1221(e)(1),
2302(b)(9). We find that the appellant met her jurisdictional burden as to her
claim that her OIG disclosure contributed to a hostile work environment in
February 2020 and an undeserved evaluation of her performance for FY 2020.
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
of, or the content of, the 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 contributing factor 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. 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. Id., ¶ 14.
As to disclosure (1), we have found that the appellant established that she
exhausted her OSC remedy and nonfrivolously alleged that she disclosed the
de-scoping of a pilot project to the agency’s OIG in January or February 2020.
IAF, Tab 1 at 4, Tab 9 at 6-7, 10. The appellant also nonfrivolously alleged that,
in retaliation for this protected activity, her supervisor significantly changed her
working conditions and duties on February 28, 2020, and her first- and
second-level supervisors issued her an undeserved performance review for
FY 2020 on October 7, 2020. IAF, Tab 9 at 6-7, 9. According to the appellant,
she advised her first-level supervisor of her intention to make this OIG
disclosure. Id. at 6. Although she does not specify when she so informed her
supervisor, based on her assertions below, we infer that she is alleging she17
conveyed her intent to her supervisor in January or February 2020. Id. We
conclude that she met her burden to nonfrivolously allege that her protected OIG
activity was a contributing factor in her first-level supervisor’s decision to change
her working conditions and duties less than 2 months later, and issue her an
allegedly undeserved FY 2020 performance review approximately 9 months later.
Therefore, we find that the appellant met her jurisdictional burden to prove
contributing factor under the knowledge/timing test.
As to disclosure (2), we have found that the appellant met her burden to
prove exhaustion and that she made nonfrivolous allegations that, in May 2020,
she engaged in protected activity by making a disclosure to OSC regarding the
agency’s implementation of COVID leave. IAF, Tab 1 at 4, Tab 9 at 10. The
appellant speculated below that certain agency officials, including her
second-level supervisor, may have learned she was the source of this disclosure
after OSC referred it to the agency’s OIG for investigation. IAF, Tab 9 at 7.
However, she did not identify below, and does not identify on review, what
personnel action or actions resulted from her OSC disclosure. Id. The Board has
found that an appellant must make specific and detailed allegations; vague,
conclusory, unsupported, and pro forma allegations of do not meet the
nonfrivolous pleading standard. Clark v. U.S. Postal Service , 123 M.S.P.R. 466,
¶ 7 (2016), aff’d per curiam , 679 F. App’x 1006 (Fed. Cir. 2017), and overruled
on other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 20 n.11.
Because critical allegations as to the retaliatory actions that stemmed from this
protected activity are missing, we cannot make a determination as to contributing
factor. Put another way, we have no allegations that we may assume are true for
purposes of making a jurisdictional determination. See Hessami, 979 F.3d
at 1369. Therefore, we find that the Board lacks jurisdiction over the appellant’s
alleged OSC disclosure.
In sum, we find that the Board has jurisdiction over the appellant’s claim
that, in reprisal for her protected activity of making a disclosure to the agency’s18
OIG in January or February 2020, the agency subjected her to a hostile work
environment in February 2020, and issued her a less-than-deserved performance
appraisal for FY 2020. Therefore, she is entitled to a hearing on the merits of
these claims.
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.19 | Downs_JuliaDC-1221-21-0223-W-1__Remand_Order.pdf | 2024-05-02 | JULIA DOWNS v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-1221-21-0223-W-1, May 2, 2024 | DC-1221-21-0223-W-1 | NP |
1,564 | https://www.mspb.gov/decisions/nonprecedential/Mohler_TimothyCH-1221-18-0119-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY MOHLER,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CH-1221-18-0119-B-1
DATE: May 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy Mohler , Harrison Township, Michigan, pro se.
Karen R. Hiyama , Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the remand initial decision,
which denied his request for corrective action in this individual right of action
(IRA) appeal. On petition for review, he disagrees with the administrative
judge’s finding that the agency proved by clear and convincing evidence that it
would have taken the same personnel actions absent his protected disclosure;
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 abused her discretion by denying his motion
to compel and that the administrative judge who adjudicated the underlying
appeal was biased against him; raises new personnel actions; and asserts that he
engaged in a protected activity under 5 U.S.C. § 2302(b)(9)(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).
The administrative judge properly analyzed Carr factors 1 and 2.
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 all 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); Semenov v. Department of Veterans Affairs ,
2023 MSPB 16, ¶ 35.2
The administrative judge found that the agency showed by clear and
convincing evidence that the individuals involved in the decision to suspend the
appellant’s computer access lacked retaliatory motive. Mohler v. Department of
Homeland Security , MSPB Docket No. CH-1221-18-0119-B-1, Remand File (RF),
Remand Initial Decision (RID) at 9-10. The administrative judge reasoned, in
part, that the appellant’s third-level supervisor, who was unaware of the
appellant’s disclosure, temporarily suspended his computer access based on the
mistaken belief that he improperly sent an email from a Maintenance Mechanic’s
email account in August 2015. RID at 7-9. The appellant argues on review that
his second-level supervisor, who knew of his disclosure, “randomly” identified
the appellant to his third-level supervisor as the one who sent the allegedly
improper email. Mohler v. Department of Homeland Security , MSPB Docket No.
CH-1221-18-0119-B-1, Remand Petition for Review (RPFR) File, Tab 2 at 6-7;
Mohler v. Department of Homeland Security , MSPB Docket No.
CH-1221-18-0119-W-1, Initial Appeal File (IAF), Tab 16 at 78, 206. Similarly,
he asserts that this error could have been corrected if his supervisors had
requested a copy of the email in question. RPFR File, Tab 2 at 7.
To the extent that the appellant argues that his second-level supervisor
influenced his third-level supervisor to retaliate against him, we are not
persuaded. An appellant can establish a prohibited animus toward a
whistleblower based on evidence that an individual with knowledge of the
protected disclosure influenced the official who is accused of taking the personnel
actions. Karnes v. Department of Justice , 2023 MSPB 12, ¶ 19. The
administrative judge considered the motive of the appellant’s second-level
supervisor, but credited his testimony that he did not view the appellant’s
disclosure as reflecting poorly on him. RID at 9; Hearing Transcript (HT) at 183
(testimony of the appellant’s second-level supervisor). In crediting the
appellant’s second-level supervisor, the administrative judge properly considered
that the testimony was undisputed, there was no evidence contradicting his3
testimony, and his testimony was consistent with other evidence. RID at 9-10;
see Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987) (identifying
these and other factors relevant to an administrative judge’s credibility
determinations).
The appellant’s assertion that his second-level supervisor randomly
identified him as the individual who allegedly accessed the Maintenance
Mechanic’s email account, and his suggestion that his supervisors could have
cleared him of any misconduct by requesting to see the email in question, do not
evidence any error by the administrative judge in her credibility finding. In any
event, we observe that the appellant’s second-level supervisor testified that he
identified the appellant as the culprit because of the ongoing interpersonal
conflicts between him and the Maintenance Mechanic. HT at 167 (testimony of
the appellant’s second-level supervisor). The appellant does not dispute that such
conflicts existed or that they were the basis for his supervisor’s logical conclusion
that the appellant sent the alleged email. Thus, we find no reason to disturb the
administrative judge’s finding that Carr factor 2 weighed strongly in the agency’s
favor.
As for the appellant’s temporary relocation, the administrative judge found
that the evidence strongly supported the agency’s explanation that it relocated the
appellant after the Maintenance Mechanic alleged that the appellant harassed him.
RID at 6. The appellant does not dispute the administrative judge’s factual
findings that he and the Maintenance Mechanic had a longstanding interpersonal
conflict and that the Maintenance Mechanic’s job required being physically
located in the Detroit Sector Headquarters, while the appellant could perform his
duties at another location. RID at 6-7. The appellant’s suggestion that the
agency relocated him because of his protected disclosure does not undermine the
agency’s evidence in support of its personnel action. RPFR File, Tab 7 at 7; IAF,
Tab 16 at 33. 4
On review, the appellant notes that his first-level supervisor stated that the
appellant’s relocation was “related to” his disclosure. RPFR File, Tab 2 at 7.
This mischaracterizes his statement. The supervisor indicated that the appellant’s
relocation was related to the investigation into the mistaken belief that he sent an
email from the Maintenance Mechanic’s email account. IAF, Tab 16 at 68;
HT at 57-59 (testimony of the appellant’s first-level supervisor). In any event,
the first-level supervisor only became involved in the appellant’s relocation after
the appellant’s second - and third-level supervisors, in conjunction with
management officials outside of the appellant’s chain of command, made the
decision to relocate the appellant in response to the harassment allegation. IAF,
Tab 16 at 33, 87; HT at 57 (testimony of the appellant’s first-level supervisor), 94
(testimony of the appellant’s third-level supervisor), 143 (testimony of the Detroit
Sector Manager). Therefore, his opinion regarding the reasons for the relocation
has little value.
The Board previously resolved the appellant’s discovery-related arguments.
The appellant re-raises arguments on review that the administrative judge
in the underlying appeal abused her discretion by denying his motion to compel.
RPFR File, Tab 2 at 8-9. The Board previously resolved this issue in its Remand
Order. Mohler v. Department of Homeland Security , MSPB Docket No.
CH-1221-18-0119-W-2, Petition for Review (PFR) File, Tab 15, Remand Order
(Remand Order), ¶ 10 n.11 (July 18, 2022). But the appellant renewed the same
motion to compel on remand and the administrative judge again denied the
motion. RF, Tab 6 at 2. The appellant has failed to provide any new bases to
grant the motion, and in fact reiterates verbatim arguments the Board previously
rejected. RPFR File, Tab 2 at 8; PFR File, Tab 1 at 39. Therefore, we decline to
reconsider the appellant’s arguments.5
The appellant’s remaining arguments do not provide a basis for reversing the
initial decision.
The appellant argues for the first time on review that (1) both
administrative judges erred by failing to consider two subsequent investigations
and the appellant’s 2016 permanent relocation, and (2) rumors and speculation
forced him to resign from the agency. RPFR File, Tab 2 at 9-10. 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); 5 C.F.R. § 1201.115(d). The appellant has
not made such a showing as to the agency’s later investigations and his permanent
relocation. Further, he has not identified when he resigned, and we are unable to
determine if this information was available below. In any event, there is no
evidence below or on review that he exhausted his administrative remedies
regarding these issues. See Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10 (finding that the Board’s jurisdiction over an IRA appeal is
limited to matters an appellant raised with the Office of Special Counsel (citation
omitted)). Nor has the appellant provided any explanation for how these alleged
errors have any bearing on the issues on remand. Remand Order, ¶ 31. Thus, the
arguments provide no basis to grant the appellant’s petition for review.
The appellant also argues for the first time on review that the
administrative judge presiding over the initial appeal was biased against him
because she granted the agency’s extension request but denied his extension
request and motion to compel. RPFR File, Tab 2 at 10. The appellant has not
explained why this argument could not have been raised before the Board in his
petition for review in that appeal or before the administrative judge on remand,
and thus we need not consider it. In any event, the appellant has failed to
overcome the presumption of honesty and integrity that accompanies6
administrative adjudicators. See Oliver v. Department of Transportation ,
1 M.S.P.R. 382, 386 (1980).
We similarly decline to consider the appellant’s arguments, also raised for
the first time on review, disagreeing with the Board’s findings in its Remand
Order. RPFR File, Tab 7 at 5, 11. For example, the appellant reargues that his
disclosure was a protected activity under 5 U.S.C. § 2302(b)(9)(C). RPFR File,
Tab 2 at 11. The Board concluded in its Remand Order that the appellant did not
engage in protected activity under 5 U.S.C. § 2302(b)(9)(C). Remand Order,
¶¶ 1, 14-16. Under the law of the case doctrine, a tribunal will not reconsider
issues that have already been decided in an appeal, unless there is new and
material evidence adduced at a subsequent trial, controlling authority has made a
contrary decision of law, or the prior decision was clearly erroneous and would
work a manifest injustice. O’Connell v. Department of the Navy , 73 M.S.P.R.
235, 240 (1997). The appellant’s new legal theory that his disclosure should be
protected because the agency “would have escalated” it to its Office of Inspector
General if it were “severe enough in nature, or expos[ed] a larger issue” does not
fall within one of these exceptions. RPFR File, Tab 2 at 11. It is not based on
new evidence or law, and does not identify any error in the Remand Order.
Therefore, we DENY the petition for review and 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
Systems Protection Board does not provide legal advice on which option is most
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.7
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 representation8
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 file9
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. 10
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. 11
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 | Mohler_TimothyCH-1221-18-0119-B-1__Final_Order.pdf | 2024-05-02 | TIMOTHY MOHLER v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CH-1221-18-0119-B-1, May 2, 2024 | CH-1221-18-0119-B-1 | NP |
1,565 | https://www.mspb.gov/decisions/nonprecedential/McIntyre_Deborah_L_DA-3330-19-0063-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBORAH L. MCINTYRE,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-3330-19-0063-I-1
DATE: May 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deborah L. McIntyre , Harlingen, Texas, pro se.
Marlene Wahowiak , Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). On petition for review, the appellant
reiterates her argument that the agency violated her veterans’ preference rights in
connection with her application for a GS-13 Supervisory Legal Administrative
Specialist position by improperly determining that she was not qualified because
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).
she failed to demonstrate that she possessed one year of specialized experience
equivalent to the GS-12 level. Petition for Review (PFR) File, Tab 1 at 4-6. In
support of her argument, she points to various statements in her resume, which
she contends establish that she has the requisite experience.2 Id. at 5-6.
However, as the administrative judge properly found, the record reflects that the
agency adequately considered the appellant’s application and resume but found
her ineligible because it could not determine the specific grade level she was
performing her duties at to the extent her resume identified both GS-14 and
GS-10 grade levels during the same time period. Initial Appeal File, Tab 18 at 4;
see Miller v. Federal Deposit Insurance Corporation , 818 F.3d 1361, 1367 (Fed.
Cir. 2016) (explaining that, in a VEOA appeal, the Board may determine whether
the agency actually evaluated the experience material to the position but may not
reevaluate the weight the agency accorded to a veteran’s experience).
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
2 The appellant also submits for the first time on review various emails regarding her
serving as the back-up court administrator. PFR File, Tab 1 at 7-11. We need not
consider such evidence because the appellant has not shown that it is based on new and
material evidence that was unavailable before the record below closed. See Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). In any event, such evidence
would not alter the outcome of this appeal because it was not submitted to the agency
with the appellant’s application materials.2
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).
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 | McIntyre_Deborah_L_DA-3330-19-0063-I-1__Final_Order.pdf | 2024-05-02 | DEBORAH L. MCINTYRE v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-3330-19-0063-I-1, May 2, 2024 | DA-3330-19-0063-I-1 | NP |
1,566 | https://www.mspb.gov/decisions/nonprecedential/Smith_Garilynn_PH-1221-16-0010-C-3_and_PH-1221-16-0010-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARILYNN SMITH,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBERS
PH-1221-16-0010-C-3
PH-1221-16-0010-X-1
DATE: May 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Graig P. Corveleyn , Esquire, Hopewell, New Jersey, for the appellant.
David K. Siegle , Picatinny Arsenal, New Jersey, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
On August 31, 2022, the administrative judge issued a compliance initial
decision finding the agency in noncompliance with the Board’s April 13, 2022
Opinion and Order granting the appellant corrective action in Smith v.
Department of the Army , MSPB Docket No. PH-1221-16-0010-W-1. Smith v.
Department of the Army , MSPB Docket No. PH-1221-16-0010-C-3, Compliance
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).
File (C-3 CF), Tab 5, Compliance Initial Decision (C-3 CID). The administrative
judge ordered the agency to take required action. C-3 CID at 6. Because the
agency did not take action under 5 C.F.R. § 1201.183(a)(6) within the time limit
for doing so, this matter was referred to the Board for processing under the
enforcement provisions of 5 C.F.R. § 1201.183(c)(1) and docketed under MSPB
Docket No. PH-1221-16-0010-X-1. Meanwhile, the appellant also filed a petition
for review of the compliance initial decision. Smith v. Department of the Army ,
MSPB Docket No. PH-1221-16-0010-C-3, Compliance Petition for Review File
(CPFR File), Tab 1. We JOIN MSPB Docket Nos. PH-1221-16-0010-C-3 and
PH-1221-16-0010-X-1, and we address both the compliance referral action and
the petition for review of the compliance initial decision in this final decision.
For the reasons discussed below, we find the agency in compliance with the
administrative judge’s compliance initial decision, and we therefore DISMISS the
appellant’s petition for enforcement. We also DENY the appellant’s petition for
review and AFFIRM the compliance initial decision.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On October 6, 2015, the appellant filed a timely individual right of action
(IRA) appeal alleging that the agency retaliated against her when it failed to
select her for the position of Executive Assistant after she made protected
disclosures exposing how the Department of Defense had been mishandling the
remains of fallen service -members. Smith v. Department of the Army , MSPB
Docket No. PH-1221-16-0010-W-1, Initial Appeal File (IAF), Tab 1. On May 19,
2017, the administrative judge issued an initial decision granting the appellant’s
request for corrective action. Smith v. Department of the Army , MSPB Docket
No. PH-1221-16-0010-W-1, Initial Decision (May 19, 2017); IAF, Tab 47. On
April 13, 2022, following the agency’s petition for review, the Board issued an
Opinion and Order affirming the initial decision as modified and again granting
corrective action. Smith v. Department of the Army , 2022 MSPB 4,2
¶¶ 1, 39.2 The Board ordered the agency to pay the appellant the correct amount
of back pay, interest on back pay, and other benefits no later than 60 calendar
days after the date of the Opinion and Order. Id., ¶ 40.
On June 17, 2022, the appellant filed a petition for enforcement of the
Board’s April 13, 2022 Opinion and Order, alleging that the agency had failed to
pay her the back pay, interest, and benefits ordered by the Board. Smith v.
Department of the Army , MSPB Docket No. PH-1221-16-0010-C-2, Compliance
File (C-2 CF), Tab 1. The administrative judge issued a compliance initial
decision dismissing the appellant’s petition for enforcement as premature because
he found that the agency was making a good faith effort to ensure payment was
made. Smith v. Department of the Army , MSPB Docket No. PH-1221-16-0010-
C-2, Compliance Initial Decision (C-2 CID) at 3 (July 6, 2022); C -2 CF, Tab 4.
He noted that the agency stated that the Defense Finance and Accounting Service
(DFAS), the agency responsible for processing the required payment, was
experiencing a backlog due to the Board’s restored quorum and that it was
working with the appellant’s counsel to ensure payment. C-2 CID at 3. The
administrative judge stated that the appellant could file a new petition for
enforcement after 30 days if the agency had still not made the required payment.
Id.
On August 5, 2022, the appellant refiled her petition for enforcement,
notifying the administrative judge that the agency still had not made the required
payment and requesting sanctions against the agency for its delay. C-3 CF, Tab 1
2 On July 7, 2017, before the agency filed its petition for review, the appellant filed a
petition for enforcement alleging that the agency had failed to comply with the initial
decision’s interim relief order. Smith v. Department of the Army , MSPB Docket
No. PH-1221-16-0010-C-1, Compliance File (C-1 CF), Tab 1. The administrative judge
dismissed the petition for enforcement and forwarded the matter to the Office of the
Clerk of the Board for joinder with the agency’s petition for review. Smith v.
Department of the Army , MSPB Docket No. PH-1221-16-0010-C-1, Compliance Initial
Decision at 3 (Aug. 17, 2017); C-1 CF, Tab 5. Neither party filed a petition for review
of the compliance initial decision, and in the Board’s April 13, 2022 Opinion and Order,
it denied the petition for enforcement because our regulations do not allow for a petition
for enforcement of an interim relief order. Smith, 2022 MSPB 4, ¶ 9 n.3. 3
at 5. The appellant stressed that she had waited 5 years for the Board to regain its
quorum and that now, even after the Board’s decision, she had yet to be
compensated. Id. In response, the agency reasserted its claim about the backlog
at DFAS and that it had worked diligently on the appellant’s case and claimed
that the appellant’s back pay packet was with DFAS. C-3 CF, Tab 3 at 4-5.
On August 31, 2022, the administrative judge issued a compliance initial
decision granting the appellant’s third petition for enforcement. C-3 CID at 1-2.
The administrative judge found that the agency acknowledged it failed to make
payment by June 12, 2022, sixty days from the date of the Board’s decision, that
it sought to avoid responsibility for its continued failure to comply with the
Board’s final decision, and that it was unable to identify when the appellant could
expect payment. C -3 CID at 5. He further found that DFAS is an instrument or
agent of the agency and thus that the agency was responsible for its inertia.
C-3 CID at 5-6. He ordered the agency to pay the appellant the appropriate
amount of back pay with interest no later than 10 days after the date his decision
became final. C -3 CID at 6.
On October 5, 2022, the appellant filed a petition for review of the
August 31, 2022 compliance initial decision, informing the Board that although
she received payment on September 22, 2022, the payment was deficient and
failed to include any explanation of the calculations made to arrive at that dollar
amount, and thus that the agency had not complied with the Board’s final
decision. CPFR File, Tab 1 at 5. The appellant also argued that the
administrative judge erred by failing to address her request for sanctions and
asked the Board to consider whether, given this fact and the agency’s continued
noncompliance, sanctions are appropriate. Id. at 5-6.
Meanwhile, the agency failed to make a timely submission with the Office
of the Clerk of the Board under 5 C.F.R. § 1201.183(a)(6), as required when the
administrative judge made his finding of noncompliance. Therefore, while the
petition for review was pending, the matter was also referred for processing under4
the enforcement provisions of 5 C.F.R. § 1201.183(c). Smith v. Department of
the Army, MSPB Docket No. PH-1221-16-0010-X-1, Compliance Referral File
(CRF), Tab 1. Thereafter, on October 18, 2022, the agency submitted a statement
of compliance pursuant to 5 C.F.R. § 1201.183(a)(6)(i). CRF, Tab 2. The agency
submitted evidence showing that DFAS paid the appellant, provided a narrative
summary and evidence explaining DFAS’ calculations—including computation of
the appellant’s hourly rate, bonuses, interest, leave payout, taxes, and other
deductions and offsets—and provided evidence and argument showing that it
otherwise complied with the Board’s final decision. Id. at 4-29. The appellant
did not respond.
On October 19, 2022, the agency filed a response to the appellant’s petition
for review contending that the petition is now moot. CPFR File, Tab 4 at 4. The
agency states that although it was unable to meet the Board’s timeline, it would
be inappropriate for the Board to sanction the agency because it has now
submitted evidence of full compliance. Id.
ANALYSIS
Compliance Referral File (X-1 matter).
When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued noncompliance.” Brown v. Office of Personnel Management ,
113 M.S.P.R. 325, ¶ 5 (2010).5
Here, as noted above, to establish compliance with the Board’s final
decision in the underlying appeal, the agency had to, among other things, “pay the
appellant the correct amount of back pay, interest on back pay, and other
benefits.” Smith, 2022 MSPB 4, ¶ 40. The evidence that the agency submitted
with its statement of compliance demonstrates that it has now done so. CRF,
Tab 2 at 14, 16-29. Specifically, the agency submitted evidence demonstrating
that it paid the appellant on September 22, 2022, and it submitted a declaration
from a DFAS supervisor explaining the methodology behind the payment,
including how the appellant’s back wages and raises and bonuses were calculated
and what offsets and deductions were made, including for taxes and benefits. See
id. at 14-29. The agency alleges that it sent DFAS’ certified back pay
calculations to the appellant on October 13, 2022. Id. at 4-5. The appellant did
not submit an objection or any response to the agency’s statement of compliance,
despite being notified of her opportunity to do so and being cautioned that the
Board may assume she is satisfied and dismiss her petition for enforcement if she
did not respond. CPFR File, Tab 2 at 3. As a result, we assume that the appellant
is satisfied with the agency’s compliance. See Baumgartner v. Department of
Housing and Urban Development , 111 M.S.P.R. 86, ¶ 9 (2009). Consequently,
we find that the agency is in compliance with the administrative judge’s
August 31, 2022 compliance initial decision.
Petition for Review of the Compliance Initial Decision (C-3 matter).
In her petition for review, the appellant first expressed concern about
whether the amount of the payment she received was correct and how it was
calculated. CPFR File, Tab 1 at 5. However, as discussed above, we have found
that the agency submitted evidence sufficiently explaining the methodology
behind the payment and that it is in compliance with the administrative judge’s
compliance initial decision and the Board’s April 13, 2022 Opinion and Order.
The appellant also argued on review that the administrative judge erred by failing
to address her request for sanctions and that the Board should now consider this6
request. CPFR File, Tab 1 at 5-6. Although we sympathize with the appellant’s
frustration at the agency’s delay in payment and the administrative judge’s
decision not to address the sanctions issue, 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. Bilger v. Department of Justice ,
33 M.S.P.R. 602, 607 (1987), aff’d, 847 F.2d 842 (Fed. Cir. 1988) (Table); see
also 5 C.F.R. § 1201.43. Further, the Board’s ability to impose sanctions is a
means to enforce compliance. Eikenberry v. Department of the Interior ,
39 M.S.P.R. 119, 121 (1988); see 5 U.S.C. § 1204(a)(2), (e)(2)(A). The Board
has held that it would be inappropriate for it to impose sanctions where, as here,
the agency has submitted evidence of compliance. Id.; see also Bruton v.
Department of Veterans Affairs , 112 M.S.P.R. 313, ¶ 14 (2009) (stating that the
Board lacks the authority to impose punishment or sanctions once compliance has
been obtained). Thus, the appellant’s argument and request are unavailing.
In light of the foregoing, we find that the agency is now in compliance, and
we dismiss the appellant’s petition for enforcement. We also deny her petition
for review. This is the final decision of the Board in this compliance proceeding.
Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R.
§ 1201.183(c)(1)).
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 fees7
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the Clerk of the Board.
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.8
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 on9
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) or10
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. 11
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 | Smith_Garilynn_PH-1221-16-0010-C-3_and_PH-1221-16-0010-X-1__Final_Order.pdf | 2024-05-02 | GARILYNN SMITH v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-1221-16-0010-C-3, May 2, 2024 | PH-1221-16-0010-C-3 | NP |
1,567 | https://www.mspb.gov/decisions/nonprecedential/Carter_KimberlyDA-3443-18-0467-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIMBERLY CARTER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-3443-18-0467-I-1
DATE: May 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kimberly Carter , APO, pro se.
Anna Virdell , Esquire, Fort Sam Houston, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed this appeal of her nonselection 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 or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
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 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 Board lacks jurisdiction over the appeal
under the Veterans Employment Opportunities Act of 1998 (VEOA) and to
further address the appellant’s employment practices claim, we AFFIRM the
initial decision.
BACKGROUND
The appellant, a GS-14 Lead IT Specialist at Fort Sam Houston, Texas,
applied for agency Job Announcement No. NCFR166956791844026, GS-14 Lead
IT Specialist, at the same location. Initial Appeal File (IAF), Tab 1 at 1, 7-11.
The position was open to all U.S. citizens. Id. at 7. The agency listed her on the
certificate for the position, but did not select her, and instead used its direct
hiring authority (DHA), which it received from the Office of Personnel
Management (OPM), to fill the position. Id. at 15, 23, 27-28.
The appellant filed an appeal with the Board, asserting that she learned of
her nonselection on July 30, 2017. Id. at 5. She requested a hearing. Id. at 2. In
addition to the usual acknowledgment order, the administrative judge issued a
timeliness order. IAF, Tabs 2-3. In the timeliness order, she noted that the filing
period in this case began on July 30, 2017, and that the appellant’s August 1,
2018 filing date appeared to be 337 days late. IAF, Tab 1, Tab 3 at 2. She
ordered the appellant to file evidence and argument that she had filed the appeal
on time or that good cause existed for the delay. IAF, Tab 3 at 3-4. The2
appellant responded that she filed her appeal within 30 days of the date she
received her final Freedom of Information Act response from the agency. IAF,
Tab 1, Tab 8 at 3, 19.
After considering the parties’ responses, the administrative judge issued an
initial decision based on the written record, dismissing the appeal for lack of
jurisdiction without holding a hearing. IAF, Tab 13, Initial Decision (ID). She
made no findings concerning the timeliness of the appeal. ID at 6 n.7. In the
initial decision, the administrative judge reviewed the potential bases of
jurisdiction that are available to appeal a nonselection, and found that the
appellant failed to make a nonfrivolous allegation of jurisdiction over her appeal.
ID at 3-9.
First, the administrative judge determined that the appellant had not
alleged, and the record did not show, that her nonselection was the result of a
suitability action under 5 C.F.R. part 731. ID at 4. She then found that the
appellant did not allege that the agency failed to select her in retaliation for
making a protected disclosure under 5 U.S.C. § 2302(b)(8) or for engaging in
protected activity under 5 U.S.C. § 2302(b)(9). ID at 5. The administrative judge
also found that the appellant did not allege that her nonselection was the product
of discrimination based on her uniformed service, or a violation of her veterans’
preference rights. Id. Lastly, the administrative judge rejected the appellant’s
employment practices claim and dismissed the appeal for lack of jurisdiction. ID
at 7-9.
In her petition for review, the appellant argues that the agency improperly
used DHA to pass over a preference eligible applicant. Petition for Review (PFR)
File, Tab 1 at 5. She argues that, because the agency did not request approval to
invoke DHA until after the job announcement closed, it improperly used that
authority as justification for passing over a preference eligible without following
the pass over regulations, thereby violating her veterans’ preference rights. Id.3
at 5-6. The agency has responded to the appellant’s petition for review. PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant does not challenge the administrative judge’s findings that
the nonselection at issue did not involve a suitability action under 5 C.F.R.
part 731. She also does not challenge the findings that she did not allege that the
agency failed select her in retaliation for making a protected disclosure
under 5 U.S.C. § 2302(b)(8) or for engaging in protected activity under
5 U.S.C. § 2302(b)(9). Finally, she does not reassert her claim that the agency’s
evaluation of her education, experience, and application involved an employment
practice. We decline to disturb the administrative judge’s findings on these
issues.
The appellant still fails to establish jurisdiction over her employment practices
claim.
The appellant argued below that the use of DHA was a prohibited personnel
practice. IAF, Tab 1 at 5. The administrative judge did not make any findings on
this claim. However, her failure to do so was not harmful because prohibited
personnel practices are not an independent source of Board jurisdiction. See
Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012); see
also 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). On review, the appellant
suggests that the agency’s use of its DHA was an employment practice. PFR File,
Tab 1 at 5. She contends that, because the job announcement did not indicate
that the agency would use DHA and the agency did not request approval to use
DHA until after the job announcement closed, it improperly used DHA as
justification for passing over a preference eligible without following the pass over
regulations, violating her veterans’ preference rights. Id. at 5-6. 4
The issue of the Board’s jurisdiction can be raised at any time, including on
review. Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016).
Therefore, we have addressed the appellant’s argument. The Board has
jurisdiction over an employment practices appeal when two conditions are met:
(1) the appeal must concern an employment practice that OPM is involved in
administering; and (2) the appellant must make a nonfrivolous allegation that the
employment practice violated one of the “basic requirements” for employment
practices set forth in 5 C.F.R. § 300.103. Sauser v. Department of Veterans
Affairs, 113 M.S.P.R. 403, ¶ 6 (2010). Those requirements consist of a job
analysis to identify the basic duties and responsibilities, knowledge, skills, and
abilities to perform them, and the factors that are important in evaluating
candidates; relevance between performance in the position and the employment
practice used; and equal employment opportunity with no prohibited forms of
discrimination. 5 C.F.R. § 300.103(a)-(c). An agency’s misapplication of a
valid OPM requirement, like DHA, may constitute an employment practice. See
Sauser, 113 M.S.P.R. 403, ¶ 7.
Because OPM gave the agency its DHA, it was involved in that
employment practice. IAF, Tab 1 at 27; PFR File, Tab 6 at 11-22; see Sauser,
113 M.S.P.R. 403, ¶ 7 (explaining that OPM need not be immediately involved in
the practice in question) . However, it is well established that agencies have
discretion to fill vacancies by any authorized method. See Phillips v. Department
of the Navy, 110 M.S.P.R. 184, ¶ 6 (2008), overruled on other grounds by Oram
v. Department of the Navy, 2022 MSPB 30. OPM authorized the use of DHA on
June 20, 2003. PFR File, Tab 6 at 11-22. Under DHA, the agency may, without
regard to the provisions of 5 U.S.C. sections 3309 through 3318, appoint
candidates directly to positions for which (1) public notice has been given, and
(2) OPM has determined there is a severe shortage of candidates or a critical
hiring need. 5 U.S.C. § 3304(a)(3); PFR File, Tab 6 at 11-22. The appellant fails
to identify any authority that would indicate that the agency misapplied the5
employment practice or otherwise improperly used its DHA. See Sauser,
113 M.S.P.R. 403, ¶ 7. Thus, the appellant failed to make a nonfrivolous
allegation of jurisdiction over the employment practice, i.e., the agency’s use of
DHA, which she alleged on review.
The appellant failed to establish jurisdiction under VEOA.
As noted above, the appellant argues on review that the agency’s use of
DHA violated her veterans’ preference rights by evading the procedures
necessary for an agency to pass over a preference eligible employee. PFR File,
Tab 1 at 5-6. The appellant alleged below that she was entitled to veterans’
preference. IAF, Tab 1 at 1. Because the record showed that she may have raised
a claim under VEOA, the Office of the Clerk of the Board issued an order
affording the appellant an opportunity to establish jurisdiction over her allegation
that the agency violated her veterans’ preference rights or her right to compete.
PFR File, Tab 1 at 5-7, Tab 4; IAF, Tab 1 at 2, 6. The appellant has responded to
the order, and the agency has replied to the appellant’s response. PFR File,
Tabs 5-6.
To establish jurisdiction over a VEOA appeal, as relevant here, an
appellant must show that she exhausted her administrative remedy with the
Department of Labor (DOL). 5 U.S.C. § 3330a(a)(1); Becker v. Department of
Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010); Jarrard v. Social Security
Administration, 115 M.S.P.R. 397, ¶ 7 (2010), aff’d, 669 F.3d 1320 (Fed. Cir.
2012). In her response to the jurisdictional order, the appellant asserts that she
did not file a complaint with DOL. PFR File, Tab 4 at 3. Evidence of the
exhaustion requirement is mandatory. 5 U.S.C. § 3330a(d); Graves v.
Department of Veterans Affairs, 117 M.S.P.R. 491, ¶ 8 (2012). Thus, the Board
lacks jurisdiction over the appellant’s VEOA appeal. 6
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. 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.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. 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 | Carter_KimberlyDA-3443-18-0467-I-1__Final_Order.pdf | 2024-05-02 | KIMBERLY CARTER v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-3443-18-0467-I-1, May 2, 2024 | DA-3443-18-0467-I-1 | NP |
1,568 | https://www.mspb.gov/decisions/nonprecedential/Bivins_LaTorie_M_DA-0752-22-0233-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LATORIE M. BIVINS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-22-0233-I-1
DATE: May 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
LaTorie M. Bivins , Schertz, Texas, pro se.
Karen D. Haertl , Esquire, Fort Worth, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation 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 case to the regional office for
further adjudication in accordance with this Remand Order.
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 appellant was a GS-12 Contract Specialist for the U.S. Army Corps of
Engineers. Initial Appeal File (IAF), Tab 1 at 1. In January 2021, she accepted a
lateral transfer from Fort Worth, Texas, to Honolulu, Hawaii. IAF, Tab 8 at 6.
Upon her arrival in Hawaii in March 2021, the appellant faced various
difficulties, which culminated in her request for leave without pay (LWOP)
beginning in July 2021. Id. at 6-16, 102. On October 20, 2021, the appellant sent
an email to the agency, wherein she stated that she did not feel safe under the
management team in Hawaii and that it was “not in [her] best interest to report to
this office.” Id. at 119. The appellant further stated, “I am making the prudent
decision to remove myself for my security. I will not return until all
investigations to my case are finalized and my name is vindicated.” Id. at 120.
She was still on LWOP at the time. IAF, Tab 8 at 99, 102.
On October 29, 2021, the agency directed the appellant to exercise her
return rights to Fort Worth, Texas, because she was allegedly “unable to adjust to
the overseas area.” IAF, Tab 9 at 28-29. The appellant responded to the
reassignment notice in disagreement. IAF, Tab 8 at 114-18. In her letter, she
alleged that the agency denied her reasonable accommodations and that the
agency reassigned her in retaliation for her complaints of a hostile work
environment and to avoid processing her complaints. Id. at 114-15. She stated
that she would not return to the office in Hawaii until her complaints were
resolved. Id. at 116.
After several extensions to her reporting date, the appellant reported to
work in Fort Worth, Texas, in January 2022. IAF, Tab 8 at 20-21. She took a
period of medical leave in March 2022. IAF, Tab 9 at 33. On March 25, 2022,
the appellant notified the Commander of the Fort Worth district that the section
chief had “verbally attacked” her. IAF, Tab 1 at 9, 12. In response, the
Commander informed the appellant that he would conduct an investigation into
her allegations, and he placed her on administrative leave for 10 business days.2
Id. at 16. On her second day of administrative leave, the appellant sent an email
to the Commander stating that she was “doing a [c]onstructive discharge” due to a
hostile work environment. Id. at 14.
The appellant filed a Board appeal, wherein she alleged that she
involuntarily resigned because she did not feel safe after being verbally attacked
by the section chief on March 25, 2022. IAF, Tab 1 at 5. She also alleged that
she was subjected to “constant demoralizing acts,” including, among other things,
involuntary reassignment from the Honolulu district to the Fort Worth district
during an equal employment opportunity (EEO) investigation in the Honolulu
district. Id. The administrative judge issued a jurisdictional order notifying the
appellant that the Board may lack jurisdiction over her involuntary resignation
appeal. IAF, Tab 2. The appellant filed a response. IAF, Tab 8. The
administrative judge then dismissed the appeal for lack of jurisdiction without
holding a hearing. IAF, Tab 11, Initial Decision (ID).
ANALYSIS
The Board lacks jurisdiction over appeals of employees’ voluntary actions.
Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 7 (2013); 5 C.F.R.
§ 752.401(b)(9). However, the Board has recognized that employee-initiated
actions that appear voluntary on their face are not always so. Bean, 120 M.S.P.R.
397, ¶ 7. The Board may have jurisdiction over such actions under 5 U.S.C.
chapter 75 as “constructive” adverse actions. Id. Generally, to establish Board
jurisdiction over a constructive adverse action claim, the appellant must show:
(1) that she lacked a meaningful choice in the matter; and (2) it was the agency’s
wrongful actions that deprived her of that choice. Id., ¶¶ 8, 11. When a
resignation involves a directed reassignment, the Board has held that a
constructive adverse action may be established by showing that the reassignment
had no solid or substantial basis in personnel practice or principle. See Caveney
v. Office of Administration , 57 M.S.P.R. 667, 670 (1993). Although an agency3
may exercise its management discretion to reassign its employees as necessary to
promote the efficiency of the service, it may not use its discretionary
reassignment authority as a veil to improperly pressure an employee to retire or
resign. Id. Thus, to establish entitlement to a jurisdictional hearing in such a
case, the appellant must furnish nonfrivolous allegations that, if proven, could
demonstrate that the reassignment was without solid or substantial basis under
personnel practice and principle. See Cartwright v. Department of Housing and
Urban Development , 54 M.S.P.R. 338, 342 (1992); 5 C.F.R. § 1201.4(s); see also
Thomas v. Department of the Navy , 123 M.S.P.R. 628, ¶ 11 (2016) (stating that,
in a constructive adverse action appeal, if an appellant makes a nonfrivolous
allegation of fact that could establish Board jurisdiction, she is entitled to a
hearing at which she must prove jurisdiction by preponderant evidence).
In dismissing the appeal for lack of jurisdiction, the administrative judge
found that the appellant failed to nonfrivolously allege improper actions by the
agency that amounted to coercion or that she had no option other than resignation.
ID at 9. The administrative judge did not explicitly analyze the appellant’s claim
that her involuntary reassignment contributed to her involuntary resignation. In
this regard, the appellant alleged that the agency wrongfully reassigned her from
Honolulu to Forth Worth during an ongoing EEO investigation and that the
reassignment was retaliatory for her complaints. IAF, Tab 1 at 5, Tab 8
at 114-18, 148-52. If proven, the appellant’s claims could show that the
reassignment had no solid or substantial basis in personnel practice or principle,
and we therefore find that she is entitled to a jurisdictional hearing on her
involuntary resignation claim. See Caveney, 57 M.S.P.R. at 671 (remanding a
constructive removal appeal for a jurisdictional hearing when the appellant
alleged that his retirement was involuntary because his supervisor verbally
pressured him to retire and, when he refused, the agency reassigned him to a
position with no real duties and told him that the position would soon be
reclassified at a lower grade); Cartwright, 54 M.S.P.R. at 340-42 (finding that an4
appellant established that he was entitled to a jurisdictional hearing in a
constructive removal appeal when he resigned to avoid a directed reassignment
from Philadelphia to Washington, D.C., and he alleged that the agency had no
legitimate need for his services in Washington, D.C.).
We note that the appellant’s pleadings repeatedly reference her requests for
reasonable accommodations, which she asserts the agency denied or mishandled.
IAF, Tab 1 at 5, Tab 8 at 68, 84 -85, 117-18. Although an agency’s denial of a
reasonable accommodation to an eligible employee is a factor to be considered in
determining whether the agency coerced the appellant’s resignation, see Brown v.
U.S. Postal Service , 115 M.S.P.R. 609, ¶ 16, aff’d, 469 F. App’x 852 (Fed. Cir.
2011), we agree with the administrative judge that the appellant had other means
to challenge the alleged denial of accommodations through the appropriate
channels rather than quitting, ID at 8.
ORDER
For the reasons discussed above, we remand this case to the regional office
for a jurisdictional hearing in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Bivins_LaTorie_M_DA-0752-22-0233-I-1__Remand_Order.pdf | 2024-05-02 | LATORIE M. BIVINS v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-22-0233-I-1, May 2, 2024 | DA-0752-22-0233-I-1 | NP |
1,569 | https://www.mspb.gov/decisions/nonprecedential/Jones-Bush_Sharlene_M_SF-0752-22-0525-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARLENE JONES-BUSH,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-22-0525-I-1
DATE: May 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Andrew R. Young , Esquire, and Jacquelyn Trevino , Esquire, Houston,
Texas, for the appellant.
David L. Mannix , Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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,
VACATE the initial decision, and REMAND the case to the Western Regional
Office for further adjudication in accordance with this Remand Order.
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 appellant started her employment with the agency on March 24, 1992,
in a nonappropriated fund instrumentality (NAFI) position. Initial Appeal File
(IAF), Tab 4 at 5, Tab 8 at 10. On July 25, 1993, she was appointed to a
career-conditional position as a GS-3 Information Receptionist. IAF, Tab 8
at 38.2
On March 31, 2022, she retired from the agency as a GS-7 Clinical Staff
Services Assistant. Id. at 50. According to the appellant, prior to her retirement,
an agency Human Resources (HR) Specialist verified that she had 30 years of
Federal service, had reached the minimum retirement age, and was allowed to
retire on March 31, 2022. IAF, Tab 4 at 5, 44, 69-70, 83-88. The appellant had
also received a Certificate of Service, a Presidential Letter of Appreciation, a
retirement flag, and a 30-year pin recognizing her 30 years of Federal service. Id.
at 5-6, 56. Therefore, believing she had 30 years of creditable service, the
appellant submitted her retirement application to the Office of Personnel
Management (OPM) in November 2021, retiring on March 31, 2022. Id. at 8;
IAF, Tab 8 at 50. However, in July 2022, OPM informed the appellant that
she only had 28 years of creditable service, and therefore, she would receive an
age reduction penalty and would lose her annuity supplement because she had not
reached 30 years of creditable service.3 IAF, Tab 4 at 8, 62.
The appellant then filed this involuntary retirement appeal, alleging that
she relied on the agency’s misrepresentation that she had reached the minimum
age and had 30 years of creditable Federal service. IAF, Tab 1. The
administrative judge issued a jurisdictional order informing the appellant that the
Board may not have jurisdiction over her involuntary retirement claim, setting
2 The appellant does not dispute the veracity of the Standard Form 50s submitted by the
agency, and thus we rely on them for the limited purpose of establishing the dates of
relevant personnel actions.
3 It appears that the appellant was not vested in her NAFI service. IAF, Tab 4 at 32-33,
51-53.2
forth the applicable legal standard, and providing her with an opportunity to
present evidence or argument to establish a nonfrivolous allegation of
jurisdiction. IAF, Tab 3. The appellant responded to the order, as did the
agency. IAF, Tabs 4, 8.
Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). Citing to a
declaration submitted by the agency, the administrative judge determined that, in
order to find a nonfrivolous allegation of jurisdiction, he would be required to
“assume someone in the local command human resources office provided advice
contrary to [the Assistant Department Head’s] assertion that her office does not
verify NAFI service, and require that [he] assume the appellant relied on that
advice.” ID at 8-9. The administrative judge then found that, without a
declaration or affidavit from the appellant,4 she had failed to nonfrivolously
allege that her belief that she had 30 years of creditable service was the result of
the agency’s misrepresentation. ID at 9. Thus, he found that she did not make a
nonfrivolous allegation of jurisdiction sufficient to support a hearing request. Id.
The appellant has filed a petition for review, reiterating that she was misled
by the agency because it informed her that she could retire on March 31, 2022,
because she had reached the minimum retirement age and had 30 years of
creditable service. Petition for Review (PFR) File, Tab 1. The agency responded
in opposition to the appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
An employee-initiated action, such as retirement, is presumed to be
voluntary, and thus outside the Board’s jurisdiction. Salazar v. Department of the
Army, 115 M.S.P.R. 296, ¶ 9 (2010). However, an involuntary retirement is
tantamount to a removal and, accordingly, is appealable to the Board. Id. The
4 The appellant responded to the administrative judge’s jurisdictional order through her
designated representative, but did not include an affidavit or declaration in her
submission. IAF, Tab 4.3
presumption that a retirement is voluntary can be rebutted by evidence showing
that the retirement was the result of agency misrepresentation, coercion, or
duress. Id. When, as here, there is a claim that an involuntary action resulted
from misinformation, an appellant must show that: (1) the agency made
misleading statements; and (2) the appellant reasonably relied on the
misinformation to her detriment. Id. The appellant need not show that the
agency was intentionally misleading. Id.; Covington v. Department of Health &
Human Services , 750 F.2d 937, 942 (Fed. Cir. 1984).
A hearing is required with respect to jurisdictional questions only if the
appellant makes a nonfrivolous allegation that, if proved, would establish Board
jurisdiction. Brown v. Department of Defense , 109 M.S.P.R. 493, ¶ 13 (2008).
The question here, therefore, is whether the appellant made a nonfrivolous
allegation of an involuntary retirement so as to entitle her to a jurisdictional
hearing. 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, 1369 (Fed. Cir. 2020). In assessing
whether an appellant has made a nonfrivolous allegation, an administrative judge
may consider the agency’s documentary submissions. Ferdon v. U.S. Postal
Service, 60 M.S.P.R. 325, 329 (1994). However, to the extent that the agency’s
evidence merely contradicts the appellant’s otherwise adequate prima facie
showing of jurisdiction, the administrative judge may not weigh evidence or
resolve conflicting assertions of the parties, and the agency’s evidence may not be
dispositive. Id.
The administrative judge improperly weighed the evidence in finding that
the appellant failed to make a nonfrivolous allegation of jurisdiction. ID at 9.
The factual background set forth by the administrative judge relies almost solely
on the documents provided by the agency. ID at 4-6. Furthermore, in his
analysis, he cited exclusively to the agency’s documentation, and used these
documents to resolve disputes of fact, for example, whether it was the agency that4
informed the appellant that she had 30 years of creditable service. ID at 7-9. The
administrative judge impermissibly gave more weight to the agency’s evidence
than the appellant’s evidence, finding that, even though she had responded to his
jurisdictional order, because she did not submit a declaration or affidavit, he
could not find that she had made a nonfrivolous allegation of jurisdiction. Id.
However, an appellant is not required to submit a declaration or affidavit at the
jurisdictional stage. See Hessami, 979 F.3d at 1367 (explaining that the appellant
need only submit facially sufficient allegations); see also Edem v. Department of
Commerce, 64 M.S.P.R. 501, 505 (1994) (explaining that there is no requirement
that statements be sworn in order to establish entitlement to a jurisdictional
hearing). An appellant need only submit facially sufficient allegations which,
taken as true, state a claim plausible on its face.
Here, the appellant alleged that she relied on the agency’s
misrepresentation of her creditable service and that she unwittingly retired before
she reached 30 years of creditable service, thus being subjected to a reduced
annuity. IAF, Tab 4 at 5-9. She believed that she had 30 years of creditable
service not only based on her communications with the agency, but also because
she had received a Certificate of Service, a Presidential Letter of Appreciation, a
retirement flag, and a 30-year pin commemorating 30 years of service. Id.; PFR
File, Tab 1 at 4-11. Furthermore, while the appellant did not attach a declaration
or affidavit to her jurisdictional response, she did attach multiple emails from the
agency regarding her retirement application seemingly indicating that there was
some misunderstanding regarding her creditable years of service. IAF, Tab 4
at 13-102.
Therefore, based on the appellant’s submissions, we find that she made
factually sufficient allegations which, if taken as true, could show that the agency
made misrepresentations regarding her creditable years of service which she
reasonably relied on to her detriment. See Lawson v. U.S. Postal Service ,
68 M.S.P.R. 345, 352-53 (1995) (finding that the appellant’s allegation that he5
based his decision to retire on the agency’s offer of a discontinued service
annuity, when he was not eligible for the discontinued service annuity, was
sufficient to establish a nonfrivolous allegation of jurisdiction); Tiffany v.
Department of the Treasury , 48 M.S.P.R. 334, 337-38 (1991) (finding that an
appellant’s allegation that she based her decision to retire on the agency
incorrectly stating that she could not avoid a public pension offset was sufficient
to establish a nonfrivolous allegation of jurisdiction). As such, we conclude that
the appellant has made a nonfrivolous allegation of Board jurisdiction and is
entitled to a jurisdictional hearing. See Ferdon, 60 M.S.P.R. at 329.
ORDER
For the reasons discussed above, we remand this case to the Western
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 | Jones-Bush_Sharlene_M_SF-0752-22-0525-I-1__Remand_Order.pdf | 2024-05-02 | null | SF-0752-22-0525-I-1 | NP |
1,570 | https://www.mspb.gov/decisions/nonprecedential/Varmaa_KeertiDC-0752-14-0732-I-4__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEERTI VARMAA,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-0752-14-0732-I-4
DATE: May 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Keerti Varmaa , Washington, D.C., pro se.
Julie A. Barry , Esquire, Daniel C. Carr , Esquire, and Byron D. Smalley ,
Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
mitigated the agency’s removal action to a 30-day suspension. For the reasons
discussed below, we GRANT the agency’s petition for review, DENY the
appellant’s cross-petition for review, VACATE the initial decision, and DISMISS
the appeal for lack of jurisdiction.
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).
2
BACKGROUND
Effective April 28, 2014, the agency removed the appellant from her
position as a Financial Administrator and Program Specialist based on charges of
(1) discourtesy or unprofessional behavior and (2) failure to follow management
directives or instructions. Varmaa v. Department of the Treasury , MSPB Docket
No. DC-0752-14-0732-I-1, Initial Appeal File (IAF), Tab 5 at 15-21, 36-39.
She timely appealed her removal to the Board and requested a hearing.
IAF, Tab 1. Following a hearing, the administrative judge issued an initial
decision mitigating the agency’s penalty to a 30-day suspension. Varmaa v.
Department of the Treasury , MSPB Docket No. DC-0752-14-0732-I-4, Appeal
File, Tab 17, Initial Decision (I-4 ID). The administrative judge found that the
agency proved two of the three specifications of the charge of discourtesy or
unprofessional behavior and sustained the charge. I-4 ID at 2-12. The
administrative judge also found that the agency proved each of the
five specifications of failure to follow management directives or instructions and
sustained the charge. I-4 ID at 12-20. According to the administrative judge, the
appellant failed to prove her affirmative defenses of discrimination on the bases
of race, color, sex, or national origin; retaliation for prior protected equal
employment opportunity activity; or retaliation for filing grievances. I -4 ID
at 20-38. The administrative judge further found that the appellant proved that
the agency had committed procedural error but had failed to show that the error
was harmful, and she did not prove her allegations that the agency violated her
due process rights. I-4 ID at 38-54. Next, the administrative judge found that
there was a nexus between the charged misconduct and the efficiency of the
service. I-4 ID at 54-55. Finally, the administrative judge found that the
deciding official had failed to properly weigh the relevant factors in imposing the
penalty of removal, and she found that a 30-day suspension was the maximum
reasonable penalty for the sustained misconduct; accordingly, she mitigated the
agency’s penalty to a 30-day suspension. I-4 ID at 56-63.
3
The agency filed a petition for review of the initial decision in which it
argued that it had discovered that the appellant was a reemployed annuitant at the
time of her removal and was not entitled to appeal her removal to the Board; thus,
the Board should dismiss the appeal for lack of jurisdiction. Petition for Review
(PFR) File, Tab 1 at 7-8. Alternatively, the agency argued that the administrative
judge erred in mitigating the penalty. Id. at 8-28. The appellant filed an
opposition to the agency’s petition for review and a cross-petition for review in
which she argued, collectively, that the Board should retain jurisdiction over the
appeal in the interests of judicial efficiency, that mitigation of the penalty was
proper, and that the administrative judge erred in finding that the appellant did
not prove her affirmative defense of retaliation for filing grievances. PFR File,
Tab 7. The agency responded to the appellant’s opposition and cross -petition.2
PFR File, Tabs 8, 11.
The Acting Clerk of the Board issued an order directing the appellant to
show cause why her appeal should not be dismissed for lack of jurisdiction.
PFR File, Tab 16. In her response to the order, the appellant has conceded that
she was a reemployed annuitant at the time of her removal but renews her
argument that the Board should retain jurisdiction over the appeal in the interests
of judicial efficiency.3 PFR File, Tab 17 at 4. The agency opposes the
appellant’s request for the Board to retain jurisdiction over this matter. PFR File,
Tab 19 at 5-7.
2 The appellant also filed a request for leave to file a reply to the agency’s response to
the appellant’s cross-petition for review. PFR File, Tab 14. The appellant requested
leave to respond to the agency’s argument that if the deciding official sustained a
charge without knowing it to be true, the fact does not per se indicate retaliatory
motive. Id. at 4. Because we find that the Board lacks jurisdiction over the appeal and
dismiss it, the appellant’s motion is denied.
3 The appellant also filed a motion to dismiss the agency’s petition for review on the
basis that the agency had failed to fully comply with the interim relief order. PFR File,
Tab 18. The agency has responded in opposition to the motion. PFR File, Tab 20.
Again, because the Board lacks jurisdiction to adjudicate this appeal, the appellant’s
motion is denied.
4
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, the Board will not consider evidence or argument submitted for
the first time on review absent a showing that it was unavailable before the record
closed despite the party’s due diligence, but 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); 5 C.F.R. § 1201.115.
The Board’s jurisdiction is not plenary; it 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). Under 5 U.S.C.
§ 3323(b)(1), an annuitant, as defined by section 8331 or 8401 of Title 5, is not
barred by reason of her retired status from employment in an appointive position
for which she is qualified. An annuitant so reemployed, however, serves at the
will of the appointing authority. 5 U.S.C. § 3323(b)(1); see Vesser v. Office of
Personnel Management , 29 F.3d 600, 604 (Fed. Cir. 1994); Garza v. Department
of the Navy, 119 M.S.P.R. 91, ¶ 7 (2012). Generally, such an employee has no
right to appeal an adverse action to the Board. Garza, 119 M.S.P.R. 91, ¶ 7.
On review, the agency submitted three Standard Form 50s (SF-50s)
reflecting the appellant’s status as a reemployed annuitant. PFR File, Tab 1
at 54-56. In particular, the appellant’s July 2007 SF-50 reflects that the agency
provided the appellant with career reinstatement to the position of Financial
Administrator and Program Specialist and designated her as a reemployed
annuitant. Id. at 54. The appellant’s April 2014 SF-50 effecting her removal also
reflected that she was a reemployed annuitant. Id. at 56; IAF, Tab 5 at 15. The
agency also provided verification from the Office of Personnel Management that
the appellant began receiving an annuity in June 2007 and continued to receive it
through December 2017. PFR File, Tab 6 at 9. The appellant has conceded that
she is a reemployed annuitant and does not have the right to appeal an adverse
action to the Board. PFR File, Tab 17 at 4. Accordingly, we conclude that the
5
appellant is a reemployed annuitant and that the Board lacks jurisdiction over the
instant appeal.
The appellant nevertheless argues that the Board should retain jurisdiction
over her appeal in the interests of judicial efficiency. PFR File, Tab 7 at 4-6,
Tab 17 at 4. She contends that she will refile her claims before the Equal
Employment Opportunity Commission, which will require the relitigation of her
claims before the Board. PFR File, Tab 7 at 5. The case the appellant cites in
support of her argument, Johnson v. Department of Defense , 95 M.S.P.R. 192
(2003), does not support her contention that the Board may retain jurisdiction
over the instant matter. PFR File, Tab 7 at 5-6. In Johnson, the Board concluded
that the appellant had failed to make a nonfrivolous allegation that her alleged
disclosures were a contributing factor in her termination and dismissed her
individual right of action appeal for lack of jurisdiction. Johnson, 95 M.S.P.R.
192, ¶¶ 10-12. Additionally, the Board in Johnson concluded that the posture of
the appeal presented unique circumstances such that the Board made alternative
findings in order to inform its reviewing court “of what we would find on the
merits if we had jurisdiction over this appeal in the event the appellant seeks
court review and the court disagrees with our jurisdictional findings.” Id.,
¶¶ 12-13. We do not find that such unique circumstances are present here and, in
dismissing this matter for lack of jurisdiction, decline to make alternative
findings on the merits of the appeal.
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
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
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 at
7
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,
8
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,
9
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.
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. | Varmaa_KeertiDC-0752-14-0732-I-4__Final_Order.pdf | 2024-05-02 | KEERTI VARMAA v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0752-14-0732-I-4, May 2, 2024 | DC-0752-14-0732-I-4 | NP |
1,571 | https://www.mspb.gov/decisions/nonprecedential/Hendy_David_M_CH-4324-18-0228-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. HENDY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-4324-18-0228-I-1
DATE: May 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
David M. Hendy , Chicago, Illinois, pro se.
Zane Perry Schmeeckle , Esquire, Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
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).
2
BACKGROUND
Effective June 8, 2016, the appellant resigned from the Industrial Hygienist
position at the agency’s Edward Hines, Jr. Veterans Affairs Hospital because of
“ongoing medical care for service[-]connected medical conditions and a number
of appointments.” Initial Appeal File (IAF), Tab 4 at 16, 18, 20. He
subsequently applied for a number of positions at the agency, but he was not
selected. On October 25, 2017, the appellant filed with the Department of Labor
(DOL) a USERRA complaint raising allegations of a failure to reinstate,
discrimination based on a military disability, and a hostile work environment.
IAF, Tab 1 at 1-2. In a letter dated January 19, 2018, DOL informed the
appellant that it had completed its investigation of his USERRA complaint and
had determined that his allegations were not supported by the evidence. Id.
The appellant thereafter filed an appeal with the Board, which was
docketed by the regional office as a USERRA appeal.2 IAF, Tab 1. In a
jurisdictional order, the administrative judge informed the appellant that the
Board may lack jurisdiction over his appeal. IAF, Tab 3 at 1. She apprised the
appellant of his burden of proving the Board’s jurisdiction over a USERRA
appeal and she ordered him to file evidence and argument on the issue. Id. at 2-7.
The appellant did not respond.
Based on the written record, the administrative judge issued an initial
decision dismissing this USERRA appeal for lack of jurisdiction. IAF, Tab 5,
Initial Decision (ID) at 1, 5. Specifically, she found that the appellant failed to
make a nonfrivolous allegation that the agency took an action against him that
was motivated by his military status. ID at 3-5.
The appellant has filed a petition for review, and he has included
supplemental documentation. Petition for Review (PFR) File, Tabs 7-14. The
2 Based on the appellant’s submission, the administrative judge also docketed a separate
appeal under the Veterans Employment Opportunities Act of 1998, Hendy
v. Department of Veterans Affairs, MSPB Docket No. CH-3330-18-0110-I-1. IAF,
Tab 5 at 2 & n.1.
3
agency has responded to the petition for review, and the appellant has filed a
reply to the agency’s response.3 PFR File, Tabs 18, 20.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s burden in a USERRA appeal
There are two types of USERRA cases—reemployment cases under
38 U.S.C. §§ 4312-4318 and discrimination cases under 38 U.S.C. § 4311(a)-(b).
Bostwick v. Department of Agriculture, 122 M.S.P.R. 269, ¶ 5 (2015). An
appellant must make nonfrivolous allegations of Board jurisdiction over a
USERRA claim. 5 C.F.R. § 1201.57(b). The Board takes a “liberal approach
in determining whether jurisdiction exists under USERRA.” Beck v. Department
of the Navy, 120 M.S.P.R. 504, ¶ 8 (2014) (quoting Yates v. Merit Systems
Protection Board, 145 F.3d 1480, 1484 (Fed. Cir. 1998)). The relative weakness
of the specific factual allegations initially made by an appellant in his USERRA
claim should not serve as the basis for dismissing the appeal for lack of
jurisdiction; rather, if he fails to develop those allegations, his USERRA claim
should be denied on the merits. Beck, 120 M.S.P.R. 504, ¶ 8. Once an appellant
has established the Board’s jurisdiction over his USERRA claim, he has a right to
a hearing on the merits of his claim. Id., ¶ 10; Gossage v. Department of Labor,
118 M.S.P.R. 455, ¶ 10 (2012).
We will consider the appellant’s evidence and argument regarding jurisdiction on
review because he did not have sufficient jurisdictional notice below.
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 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.
3 The appellant has filed motions to waive the deadlines for filing his petition for
review and his reply brief. PFR File, Tabs 15, 19. We find that the appellant’s petition
and reply were both timely filed, and therefore no waiver is required. Accordingly, we
deny the appellant’s motions.
4
Cir. 1985). In this case, the administrative judge dismissed the appeal for lack of
jurisdiction after the appellant failed to respond to her jurisdictional order. ID
at 1, 3-5. In his petition for review, however, the appellant claims that he did not
receive proper jurisdictional notice because the jurisdictional order was served on
an incorrect mailing address. PFR File, Tab 7 at 5, 7-8, 19-22. The agency does
not dispute the appellant’s claim that the jurisdictional order was served on an
incorrect mailing address. PFR File, Tab 18 at 5, 9. Moreover, the certificates of
service for the acknowledgment order, the jurisdictional order, the agency’s
response to the jurisdictional order, and the initial decision all contain the same
allegedly incorrect mailing address for the appellant. IAF, Tab 2 at 17, Tab 3
at 9, Tab 4 at 21, Tab 6. Thus, we conclude that the appellant did not receive
proper jurisdictional notice below, and we will therefore consider the evidence
and argument that he has filed on review. See Fleming v. Department of Labor, 97
M.S.P.R. 341, ¶¶ 8-9 (2004).
The appellant has proven exhaustion of his administrative remedies before DOL.
An appellant may either file a USERRA complaint with the Secretary of
Labor pursuant to 38 U.S.C. § 4322 or file an appeal directly with the Board
pursuant to 38 U.S.C. § 4324(b). Gossage, 118 M.S.P.R. 455, ¶ 8. If, as here, an
appellant first files a USERRA complaint with the Secretary of Labor under 38
U.S.C. § 4322, he may not file a USERRA appeal with the Board until the
Secretary notifies him that DOL has not resolved the complaint. 38 U.S.C.
§ 4324(b)(2); Gossage, 118 M.S.P.R. 455, ¶ 8; 5 C.F.R. § 1208.11(b). USERRA
does not provide for exhaustion of the complaint before DOL as a matter of time;
it instead requires notification from DOL that the Secretary’s efforts did not
resolve the appellant’s complaint. 38 U.S.C. § 4324(b)(2); Gossage,
118 M.S.P.R. 455, ¶ 8. Thus, under 38 U.S.C. § 4324(b)(2), the Board does not
acquire jurisdiction over an appellant’s USERRA claim until he receives the
required notification from DOL. 38 U.S.C. §§ 4322(e), 4324(b)(2); Gossage,
118 M.S.P.R. 455, ¶ 8. Here, it is undisputed that the appellant’s submission of
5
the DOL close-out letter satisfies the USERRA exhaustion requirement. IAF, Tab
1 at 1-2; see 5 C.F.R. § 1201.57(c)(1) (providing that an appellant bears the
burden of proving by preponderant evidence exhaustion of a statutory complaint
process that is preliminary to a Board appeal).
The appellant has failed to establish jurisdiction over a USERRA reemployment
claim.
In his petition for review, the appellant alleges that the agency violated his
right to reemployment under 38 U.S.C. § 4312 and various regulatory provisions
found at 5 C.F.R. part 353 by failing to reemploy him after he resigned.
PFR File, Tab 7 at 8-10, 14, 20 -22.
USERRA provides reemployment rights to “any person whose absence
from a position of employment is necessitated by reason of service in the
uniformed services.” 38 U.S.C. § 4312(a). An appellant must allege that an
agency has not met its reemployment obligations under 38 U.S.C. §§ 4312-4318
following his absence from civilian employment to perform uniformed service.
Bostwick, 122 M.S.P.R. 269, ¶ 5.
A person’s entitlement to reemployment rights is dependent on, among
other things, whether the person “has given advance written or verbal notice of
[uniformed] service” to the employer. 5 U.S.C. § 4312(a). Here, the appellant
admits that the reason for his resignation was not to perform uniformed service,
but was to treat service-connected injuries. IAF, Tab 4 at 16; PFR File, Tab 7
at 9-10, 13-14, 24, Tab 9 at 5. Because the appellant concedes that he did not
resign due to uniformed service, and his resignation letter does not satisfy the
notice requirement in section 4312(a), the appellant has failed to nonfrivolously
allege that the agency had any reemployment obligations. Therefore, he has
failed to meet his burden in a USERRA reemployment claim. See, e.g., Bostwick,
122 M.S.P.R. 269, ¶¶ 8-9 (interpreting the USERRA reemployment provisions as
requiring that an individual’s absence from a position of employment be
necessitated by reason of service in the uniformed services); Duncan v. U.S.
6
Postal Service, 73 M.S.P.R. 86, 90 (1997) (finding that the USERRA provision on
reemployment rights did not apply to the appeal when the appellant left his
position because of his disability retirement and not by reason of military
service), overruled on other grounds by Fox v. U.S. Postal Service, 88 M.S.P.R.
381 (2001).
The appellant has established jurisdiction over a USERRA discrimination claim
under 38 U.S.C. § 4311(a).
The appellant further alleges on review that the agency discriminated
against him under 38 U.S.C. § 4311(a). PFR File, Tab 7 at 20. To establish
jurisdiction over a USERRA discrimination claim under section 4311(a), an
appellant must nonfrivolously allege that (1) he performed duty or has an
obligation to perform duty in a uniformed service of the United States, (2) the
agency denied him initial employment, reemployment, retention, promotion, or
any benefit of employment, and (3) the denial was due to the performance of duty
or obligation to perform duty in the uniformed service. Gossage, 118 M.S.P.R.
455, ¶ 10. Here, it is undisputed that the appellant has satisfied the first two
jurisdictional elements described above. Specifically, the record shows that the
appellant received an honorable discharge from active-duty service with the
U.S. Army in 1979, and the agency does not dispute that it did not hire or rehire
him following his resignation. IAF, Tab 4 at 13, 20. Thus, the relevant question
here is whether the appellant has made a nonfrivolous allegation that his prior
uniformed service was “a substantial or motivating factor” in the agency’s
decision not to hire or rehire him. Kitlinski v. Merit Systems Protection Board,
857 F.3d 1374, 1379-80 (Fed. Cir. 2017).
After considering the appellant’s petition for review, we find that he has
nonfrivolously alleged that his prior uniformed service was a motivating factor in
the agency’s decision not to select him for any positions. Specifically, the
appellant asserts that a Human Resources Officer (HRO) deceived him,
deliberately failed to advise him of his reinstatement rights, and falsely portrayed
7
the relevant hiring authority for a vacancy announcement—which led to him not
being selected for any positions to which he had applied—because the HRO
disliked and resented his uniformed service; the appellant also alleges that the
agency discriminated against him based on his uniformed service when, on
December 5, 2017, a nonveteran was hired for the position that he previously
held. PFR File, Tab 7 at 6-7, 11-12, 14. We find, based on these allegations, that
the appellant made a nonfrivolous allegation of jurisdiction over a USERRA
discrimination claim under 38 U.S.C. § 4311(a). See, e.g., Beck, 120 M.S.P.R.
504, ¶ 9 (finding jurisdiction over the appellant’s USERRA claim that his
nonselection was due to his prior military service and that his qualifications were
superior to the nonveteran selectee); Swidecki v. Department of Commerce,
113 M.S.P.R. 168, ¶ 9 (2010) (finding jurisdiction over the appellant’s USERRA
appeal when he alleged that the agency denied his application to be reemployed in
a position that he previously held, in part, because of his prior uniformed
service); Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 10 (2009)
(finding that the appellant’s claim that he was terminated during his probationary
period because “agency officials didn’t like the fact” of his military service was
sufficient to constitute a nonfrivolous allegation of a USERRA violation).
Although unclear, it appears that the appellant is also asserting a USERRA
discrimination claim based on his service-connected conditions. PFR File, Tab 7
at 10, 15-17. However, such a claim is not cognizable under USERRA. See, e.g.,
Mims v. Social Security Administration, 120 M.S.P.R. 213, ¶ 22 (2013) (finding
that a claim of discrimination based on a disability arising from military service
is not cognizable under USERRA); Ray v. Department of Veterans Affairs, 84
M.S.P.R. 108, ¶ 3 (1999) (noting that a claim of discrimination based on a
military-connected disability was a claim of disability discrimination, not a claim
covered under USERRA).
8
The appellant has established jurisdiction over a USERRA retaliation claim under
38 U.S.C. § 4311(b).
The appellant also alleges on review that the agency retaliated against him
under 38 U.S.C. § 4311(b). PFR File, Tab 7 at 20. Under section 4311(b):
An employer may not discriminate in employment against or take
any adverse employment action against any person because such
person (1) has taken an action to enforce a protection afforded any
person under this chapter, (2) has testified or otherwise made a
statement in or in connection with any proceeding under this chapter,
(3) has assisted or otherwise participated in an investigation under
this chapter, or (4) has exercised a right provided for in this chapter.
38 U.S.C. § 4311(b). If an appellant engages in one or more forms of the protected
activity described above, an agency violates section 4311(b) if his protected
activity “is a motivating factor in the employer’s action, unless the employer can
prove that the action would have been taken in the absence of [his protected
activity].” 38 U.S.C. § 4311(c)(2); Burroughs v. Department of the Army, 120
M.S.P.R. 392, ¶ 7 (2013). Thus, to establish jurisdiction over a USERRA
retaliation claim under section 4311(b), an appellant must nonfrivolously allege
that he engaged in protected activity (as described in section 4311(b)) and that
such protected activity was a motivating factor in the agency’s action.
The appellant alleges on review that the agency discriminated in
employment against him, i.e., did not hire or rehire him, in reprisal for taking an
action to enforce a protection afforded under USERRA, assisting or otherwise
participating in a USERRA investigation, and exercising a right provided for by
USERRA. PFR File, Tab 7 at 20, 27. Specifically, the appellant alleges that,
after complaining on October 21, 2017, to Human Resources and an office
director that the agency was discriminating against him and violating his
USERRA rights, he was not selected for a position on December 5, 2017.4
PFR File, Tab 7 at 19. The appellant’s statement suggests that his complaints
motivated the agency’s decision not to select him. Coupled with the
4 It is unclear whether these complaints were made in conjunction with the appellant’s
October 25, 2017 DOL complaint. IAF, Tab 1 at 1.
9
liberal pleading standard afforded to such claims at the jurisdictional stage,
Beck, 120 M.S.P.R. 504, ¶ 8, we find that the appellant has met his burden to
make a nonfrivolous allegation of jurisdiction over his USERRA retaliation
claim.
We have also considered the appellant’s assertion that he engaged in
protected USERRA activity by resigning to treat his service-connected
injuries and by exercising a right to reemployment, which led to the agency’s
decision not to select him for any positions. PFR File, Tab 7 at 9-10, 22; see
Hayden v. Department of the Air Force, 812 F.3d 1351, 1354-55, 1362-63 (Fed.
Cir. 2016) (considering the appellant’s efforts to enforce his USERRA
reemployment rights following his return from military service as part of the
analysis of his USERRA retaliation claim). However, as discussed above, the
appellant has failed to nonfrivolously allege that he was entitled to reemployment
rights as a “person whose absence from a position of employment [was]
necessitated by reason of service in the uniformed services.” 38 U.S.C.
§ 4312(a); see supra ¶¶ 13-14. Because the appellant did not make a nonfrivolous
allegation that he was entitled to USERRA reemployment rights, we find that his
resignation and efforts to be hired or rehired do not constitute activity protected
by section 4311(b).
The administrative judge should consider on remand whether the appellant’s
remaining claims are relevant to his USERRA discrimination or retaliation
claims.
The Board’s authority in pure USERRA cases involving personnel actions
that are not otherwise appealable to the Board is limited to determining whether
the agency has violated USERRA. Bodus v. Department of the Air Force,
82 M.S.P.R. 508, ¶ 12 (1999); see Ruffin v. Department of the Treasury,
89 M.S.P.R. 396, ¶ 10 (2001) (observing that, in USERRA appeals, the Board
may review only claims that an agency has failed or refused, or is about to fail or
refuse, to comply with certain USERRA provisions). Thus, the USERRA statute
10
does not confer jurisdiction on the Board to address an agency’s underlying
personnel action when the merits of that action are not otherwise appealable to
the Board. Wooten v. Department of Veterans Affairs, 102 M.S.P.R. 131, ¶ 13
(2006).
On review, the appellant raises the following additional claims against the
agency: (1) harmful error; (2) prohibited personnel practices; (3) due process
violations; (4) disability and age discrimination; (5) violations of certain statutory
and regulatory provisions in its recruitment and selection procedures (set forth at
5 U.S.C. chapter 33 and 5 C.F.R. part 332); (6) violation of his restoration rights
under 5 C.F.R. part 353, based on a compensable injury; (7) violation of
his veterans’ preference rights; and (8) violations of 5 C.F.R. §§ 315.201,
315.401, 352.208, and Executive Order 5396. E.g., PFR File, Tab 7 at 5-6, 8-9,
13-15, 17-18, 20-21, 23-26, 28, Tab 8 at 6, Tab 20 at 6-8, 11, 14, 25-26. Based
on the current record, we are unable to determine whether the consideration of
such claims is necessary, if at all, to adjudicate the appellant’s USERRA
discrimination or retaliation claims. See Davison v. Department of Veterans
Affairs, 115 M.S.P.R. 640, ¶¶ 12-15 (2011) (finding jurisdiction over the
appellant’s USERRA retaliation claim based on his assertion that he exercised his
right as a disabled veteran to leave without pay under Executive Order 5396); but
see Metzenbaum v. Department of Justice, 89 M.S.P.R. 285, ¶ 15 (2001) (finding
the Board’s jurisdiction does not extend beyond the complained-of discrimination
because of military status, does not allow for a decision on the merits of the
underlying matter except to the extent necessary to address the appellant’s
military-status discrimination claims, and, thus, does not include a review of
other claims of prohibited discrimination). On remand, the administrative judge
should determine in the first instance whether any of the appellant’s additional
claims are relevant to his USERRA discrimination or retaliation claims. To the
extent the appellant believes that any of the documentation that he submitted on
11
review is relevant to the merits of his USERRA discrimination or retaliation
claims, he may resubmit such documentation on remand.
The appellant is entitled to engage in discovery on remand.
The appellant has made a request to engage in discovery. PFR File, Tab 7
at 13. The Board’s regulations make no provision for discovery during the
petition for review process, Mosby v. Department of Housing and Urban
Development, 114 M.S.P.R. 674, ¶ 4 (2010), and we deny this request. The
record reflects that the administrative judge granted the appellant 30 days from
the date of the acknowledgment order to initiate discovery; however, the order
was sent to the same incorrect mailing address as the jurisdictional order. IAF,
Tab 2 at 3, 17, Tab 3 at 9. Moreover, the administrative judge issued the initial
decision before the expiration of that deadline and, thus, the administrative judge
deprived the appellant of the full opportunity for discovery. IAF, Tab 2 at 3; ID
at 1; see Lynch v. Department of Defense, 114 M.S.P.R. 219, ¶ 8 (2010) (finding
that, by issuing the initial decision before the close of the discovery period, the
administrative judge effectively denied the appellant the opportunity to finalize
his discovery efforts). Accordingly, the administrative judge shall provide the
parties with an opportunity to engage in discovery on remand.
The appellant’s remaining arguments do not warrant a different outcome.
We decline to address the appellant’s claims regarding a violation of
Veterans Employment Opportunities Act of 1998 (VEOA) and equitable tolling,
e.g., PFR File, Tab 7 at 16, 23, Tab 20 at 5, 10, because such claims are not
relevant to the jurisdictional issue in this matter.
We also decline to consider the appellant’s new argument and evidence
regarding his alleged nonselection in 2018 for an Industrial Hygienist Green
Environmental Management Systems Coordinator position advertised under
vacancy announcement HN-10151155-18-BM. E.g., PFR File, Tab 7 at 12, 19,
Tab 20 at 6-11, 15, 18-20. This vacancy announcement is the subject of Hendy v.
12
Department of Veterans Affairs, MSPB Docket No. CH-3330-18-0514-I-1, and
Hendy v. Department of Veterans Affairs, MSPB Docket No. CH-4324-18-0541-I-
1.
Further, we deny the appellant’s request to join this USERRA appeal with
his other Board appeals because doing so would not expedite processing of the
cases. PFR File, Tab 7 at 22-23, Tab 20 at 5; 5 C.F.R. § 1201.36(b). In addition,
we deny the appellant’s request for a stay. PFR File, Tab 7 at 29.
ORDER
For the reasons described herein, we vacate the initial decision and remand
the case to the regional office for further adjudication on the merits of the
appellant’s USERRA discrimination and retaliation claims. On remand, the
administrative judge shall provide the parties an opportunity to engage in
discovery and shall provide the appellant with his requested hearing.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Hendy_David_M_CH-4324-18-0228-I-1__Remand_Order.pdf | 2024-05-02 | DAVID M. HENDY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-4324-18-0228-I-1, May 2, 2024 | CH-4324-18-0228-I-1 | NP |
1,572 | https://www.mspb.gov/decisions/nonprecedential/Brown_Gregory_L_DA-0714-21-0218-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY L. BROWN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0714-21-0218-I-1
DATE: May 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Daniel J. Gamino , Esquire, Oklahoma City, Oklahoma, for the appellant.
Joan M. Green , Esquire, Oklahoma City, Oklahoma, for the agency.
Shannon Yero , Garland, Texas, for the agency.
Tijuana D. Griffin , Little Rock, Arkansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The agency has filed a petition for review of the initial decision,
which reversed the appellant’s removal pursuant to the Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017 (VA
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).
2
Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat 862, 869-73 (2017)
(codified as amended at 38 U.S.C. § 714). For the reasons discussed below, we
GRANT the agency’s petition for review, VACATE the initial decision,
and REMAND the case to the Dallas Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The appellant was employed as a GS-7 Lead Police Officer with the
Oklahoma City Veterans Affairs Medical Center’s Police Services. Initial Appeal
File (IAF), Tab 1 at 2, Tab 7 at 7, 12. The agency removed him effective
March 23, 2021, for failure to follow policy. IAF, Tab 7 at 12-15, 50-52.
The charge consisted of one specification concerning an incident in March 2020,
when the appellant did not complete a Uniform Offense Report or a Missing
Patient Reaction Worksheet after Police Services was notified of a high-risk
missing patient. Id. at 50. In sustaining the charge, the deciding official
determined that it “was supported by substantial evidence.” Id. at 12.
The appellant filed a Board appeal of his removal. IAF, Tab 1. After the
administrative judge held a hearing, IAF, Tab 20, the U.S. Court of Appeals for
the Federal Circuit (Federal Circuit) decided Rodriguez v. Department of
Veterans Affairs , 8 F.4th 1290, (Fed. Cir. 2021), and Connor v. Department of
Veterans Affairs , 8 F.4th 1319, (Fed. Cir. 2021). Recognizing that these cases
affected the adjudication of the appellant’s removal, the administrative judge
reopened the record and allowed the parties to submit argument on the impact of
Connor and Rodriguez on the appeal; however, he did not allow them to submit
additional evidence. IAF, Tab 22. After both parties responded,
the administrative judge issued an initial decision reversing the removal because
the deciding official reviewed the proposed removal under a substantial evidence
standard, instead of a preponderant evidence standard, when determining that the
appellant committed the charged offense. IAF, Tab 25, Initial Decision (ID)
3
at 13, 15. The administrative judge declined to apply the harmful error standard
to the deciding official’s application of the incorrect standard of review.
ID at 14.
The agency has filed a petition for review arguing that the administrative
judge erred in reversing the action as not in accordance with law, instead of
taking evidence as to whether the deciding official actually applied a substantial
evidence standard and, if so, whether doing so was harmful. Petition for Review
(PFR) File, Tab 1. The appellant has responded. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We remand the appeal for the administrative judge to provide the parties with
an opportunity to present evidence and argument regarding whether the agency’s
error in sustaining the removal based on substantial evidence harmed the
appellant.
As noted, the deciding official sustained the action based on his conclusion
that there was substantial evidence to do so. IAF, Tab 7 at 12. Before the initial
decision in this case was issued, the Federal Circuit decided Rodriguez, 8 F.4th
at 1296-1301, in which it determined that the agency erred by applying a
substantial evidence burden of proof to its internal review of a disciplinary action
issued 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, and that
an agency’s deciding official must “determine[]” whether “the performance or
misconduct . . . warrants” the action at issue, using a preponderance of the
evidence burden of proof. Id. at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)).
The Federal Circuit’s decision 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. Applying the decision in Rodriguez, the
administrative judge reversed the agency’s removal as “not in accordance with
law” under 5 U.S.C. § 7701(c)(2)(C). ID at 14-15. He concluded that because
the agency’s action was unlawful, he was required to reverse it. Id. However,
4
after the initial decision was issued, the Board issued its decision in Semenov,
2023 MSPB 16. In Semenov, the Board found it appropriate to apply the harmful
error standard from 5 U.S.C. § 7701(c)(2) to the agency’s improper application of
the substantial evidence standard to its review of the proposed removal.
Semenov, 2023 MSPB 16, ¶¶ 21-24. We are not persuaded by the finding in the
initial decision, or the appellant’s argument on review, that the agency’s error
requires the Board to reverse the action. ID at 14-15; PFR File, Tab 3 at 10-11.
On review, the agency argues that the administrative judge incorrectly
relied on McCollum v. National Credit Union Administration , 417 F.3d 1332
(Fed. Cir. 2005), when declining to apply the harmful error standard to the
deciding official’s substantial evidence review. PFR File, Tab 1 at 8-9.
The administrative judge relied on McCollum for the proposition that when
an appealable action is unlawful in its entirety, i.e., there is no legal authority for
the agency’s action, the Board will reverse such an action as “not in accordance
with law” under 5 U.S.C. § 7701(c)(2)(C), regardless of whether the error was
harmful. ID at 14. In McCollum, 417 F.3d at 1339-40, the Federal Circuit
reversed the de facto removal of an employee because it was not in accordance
with law. There, agency officials effectively removed the petitioner for failure to
accept a directed reassignment. Id. at 1335-38. However, the Federal Circuit
found that the only entity with authority to remove the petitioner was a 3-member
Board, which did not vote to remove him. Id. at 1338-40. Instead, other agency
officials processed what amounted to an involuntary separation from service.
Id. at 1338, 1340. Thus, because “the agency itself, according to its own
authority structure, never removed [the petitioner],” his removal was not in
accordance with law. Id. at 1340.
An action taken pursuant to 38 U.S.C. § 714 “may not be sustained under
[§ 7701(b)]” if the agency committed harmful error, based its decision on a
prohibited personnel practice under 5 U.S.C. 2302(b), or “the decision was not in
accordance with law.” Semenov, 2023 MSPB 16, ¶ 23 (quoting 5 U.S.C.
5
§ 7701(c)(2)). The “harmful error” provision of 5 U.S.C. § 7701(c)(2) is
applicable to all procedural errors, while the “not in accordance with law”
provision is applicable to other unlawful actions. Doe v. Department of Justice ,
121 M.S.P.R. 596, ¶ 12 (2014). Unlike in McCollum, here, the agency itself acted
to remove the appellant. However, it committed procedural error during the
process by applying the wrong burden of proof in sustaining the removal. This
error in the application of the procedures under 38 U.S.C. § 714 does not render
the action unlawful. See Rodriguez, 8 F4th at 1296, 1301 (identifying the
appellant’s argument regarding the agency’s application of the substantial
evidence standard under 38 U.S.C. § 714 as one of procedural error, and
remanding the issue for further proceedings); see also Bannister v. Department of
Veterans Affairs , 26 F.4th 1340, 1343-44 (Fed. Cir. 2022) (remanding to the
Board a 38 U.S.C. § 714 removal in which the agency improperly applied the
substantial evidence standard “for further proceedings under the correct legal
standard”). Thus, as we found in Semenov, the harmful error standard from
5 U.S.C. § 7701(c)(2) applies here. Semenov, 2023 MSPB 16, ¶ 23.
We therefore remand the appeal for further adjudication. On remand, the
administrative judge should afford the parties an opportunity to submit evidence
and argument, including holding a supplemental hearing if needed, on the issue of
whether the agency’s use of the substantial evidence standard constituted harmful
procedural error. Semenov, 2023 MSPB 16, ¶ 24.
On remand, the administrative judge should allow the parties an opportunity to
present evidence and argument regarding whether the agency considered the
Douglas factors in determining the penalty.
In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the
Board provided a nonexhaustive list of factors relevant to penalty determinations.
In Semenov, 2023 MSPB 16, ¶¶ 44-50, the Board concluded that, consistent with
the Federal Circuit’s decision in Connor, 8 F.4th at 1325-26, in reviewing the
penalty in an action taken under 38 U.S.C. § 714, the agency and the Board must
6
apply the Douglas factors. Even though the Board is precluded from mitigating
the penalty under 38 U.S.C. §§ 714(d)(2)(B), (d)(3)(C), the Board is required “to
review for substantial evidence the entirety of the [agency’s] removal decision—
including the penalty.” Semenov, 2023 MSPB 16, ¶ 45 (quoting Sayers v.
Department of Veterans Affairs , 954 F.3d 1370, 1379 (Fed. Cir. 2020)). That
review is essentially to ensure that the agency conscientiously considered the
relevant factors and struck a responsible balance of those factors within tolerable
limits of reasonableness. Id., ¶ 48.
Here, the administrative judge provided the parties with guidance regarding
the Board’s obligation to review the penalty in an action taken under the VA
Accountability Act, pursuant to Connor. IAF, Tab 22. However, he did not
allow the parties to submit additional evidence or testimony regarding whether
the deciding official considered the relevant mitigating and aggravating Douglas
factors. IAF, Tab 22 at 2. Further, because he reversed the agency’s action based
on its use of the wrong burden of proof, he did not reach the issue of the
reasonableness of the removal penalty. ID at 15 n.14. In the proposed removal
letter, the proposing official did not reference Douglas. However, he stated that
he considered the appellant’s prior admonishment and suspensions and his job
level and responsibility as Lead Police Officer, and concluded that he lacked
confidence in the appellant’s ability to perform at a satisfactory level or to be
rehabilitated. IAF, Tab 7 at 50. Similarly, in the deciding official’s decision
letter upholding the proposed removal, he also did not reference Douglas;
however, he did state that the penalty of removal was reasonable in light of the
appellant’s prior discipline for failure to follow supervisory instruction as well as
the higher standard to which he was held as Lead Police Officer. Id. at 12.
Additionally, in his hearing testimony, the deciding official stated that he
did not conduct a Douglas factor analysis; however, he determined that removal
was reasonable in light of the appellant’s prior discipline for the same
misconduct, the seriousness of the offense, his knowledge of the rules and
7
policies violated, and his supervisory role as Lead Police Officer. Hearing
Transcript at 134-37, 167-69 (testimony of the deciding official).
Nevertheless, the record does not reflect whether the deciding official
considered any other relevant mitigating Douglas factors in making the decision
to remove the appellant, including, for example, the appellant’s 23-years of
service with the agency and the consistency of the penalty. IAF, Tab 7 at 43; see
Douglas, 5 M.S.P.R. at 305-06. On remand, the administrative judge should
permit the parties to submit additional evidence and argument on the penalty
issue. See Semenov, 2023 MSPB 16, ¶ 50. In reviewing the penalty, the
administrative judge should determine whether the agency proved by substantial
evidence that it properly applied the Douglas factors and whether the agency’s
penalty selection was reasonable, and, if not, he should remand the appellant’s
removal to the agency for a new decision on the appropriate penalty. Id. (citing,
among other cases, Connor, 8 F.4th at 1326-27).
The administrative judge may adopt his prior findings on the appellant’s
affirmative defenses, as clarified by this Remand Order.
The administrative judge found that the appellant failed to prove his
affirmative defenses of retaliation for equal employment opportunity (EEO)
activity and a prior non-whistleblower-reprisal Board appeal. ID at 15-21. On
review, neither party challenges the administrative judge’s findings that the
appellant did not prove his affirmative defenses. Id.
In making his findings regarding the appellant’s EEO affirmative defense,
the administrative judge observed that, pursuant to Savage v. Department of the
Army, 122 M.S.P.R. 612, ¶¶ 48, 51 (2015), overruled by Pridgen v. Office of
Management and Budget , 2022 MSPB 31, if the appellant shows that a
discriminatory or retaliatory motive was a factor in the contested action, the
Board will reverse the action unless the agency shows that it would have taken
the same action in the absence of its improper motive. ID at 15-16. After the
administrative judge issued his decision, the Board clarified the standards of
8
proof applicable to EEO reprisal claims that arise, as does the appellant’s, under
the Age Discrimination in Employment Act and Title VII. IAF, Tab 7 at 8-9,
Tab 13 at 13. As relevant here, the appellant may prove a claim of retaliation by
showing that his prior EEO activity was at least a motivating factor in his
removal. Pridgen, 2022 MSPB 31, ¶ 20-22, 30. The administrative judge found
that the appellant failed to prove that EEO retaliation was a motivating factor in
his removal. ID at 20. Because he did not show that retaliation was a motivating
factor in his removal, he necessarily failed to meet the more stringent “but-for”
standard. See Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 33. Therefore,
we find that the administrative judge’s application of the burden of proof set forth
in Savage did not impact his determination. 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).
An additional matter requires correction. In the initial decision, the
administrative judge provides conflicting findings regarding whether the
appellant raised a claim of retaliation under the “cat’s paw” theory, which we
clarify here. The administrative judge acknowledged that the crux of the
appellant’s reprisal argument is that the proposing official, who he alleges
harbored retaliatory motive against him because he was a responsible
management official in the appellant’s EEO complaint, maintained a “close
personal friendship” with the deciding official, which rendered the deciding
official incapable of making an unbiased decision concerning the appellant’s
removal. IAF, Tab 7 at 20, Tab 12 at 7; ID at 19. The administrative judge
essentially found that the appellant did not prove retaliation under the “cat’s paw”
theory. ID at 19-20. However, he concluded that the appellant did not allege a
claim of retaliation under the “cat’s paw theory.” ID at 20 n.18. We disagree and
find that the appellant here did appear to allege a claim of retaliation under the
“cat’s paw” theory. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 11
9
(2012) (explaining the Supreme Court has adopted the term “cat’s paw” to
describe a case in which a particular management official, acting because of an
improper animus, influences an agency official who is unaware of the improper
animus when implementing a personnel action (citation omitted)). Nevertheless,
because we discern no error with the administrative judge’s analysis or finding
that the appellant failed to prove that the proposing official improperly influenced
the deciding official, we find that any such error in identifying the claim is
harmless. See Panter, 22 M.S.P.R. at 282 (finding that an adjudicatory error that
is not prejudicial to a party’s substantive rights provides no basis for reversal of
an initial decision).
Lastly, in finding that the appellant failed to prove retaliation for his prior
Board appeal of a 3-day suspension, the administrative judge observed that,
pursuant to Warren v. Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir.
1986), an appellant can establish an affirmative defense of non-whistleblower
reprisal by proving by a preponderance of the evidence that he engaged in
protected activity, the accused official knew of the protected activity, the adverse
employment action under review could, under the circumstances, have been
retaliation, and there was a genuine nexus between the retaliation and the adverse
action. ID at 20-21. We clarify that in Mattison v. Department of Veterans
Affairs, 123 M.S.P.R. 492, ¶ 8 (2016), the Board observed that this standard also
does not apply when the prior protected activity involves an allegation of reprisal
for EEO activity. Here, the administrative judge did not make a finding as to
whether the appellant’s prior appeal over his 3-day suspension alleged retaliation
for EEO activity; however, upon reviewing the record of that appeal, we find that
it did not. Brown v. Department of Veterans Affairs , MSPB Docket No.
DA-0752-19-0402-I-1, Initial Appeal File, Tab 1, Tab 6 at 9. On remand, the
administrative judge may adopt his prior findings as to the appellant’s affirmative
defenses, as clarified by this Order.
10
ORDER
For the reasons discussed above, we remand this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Brown_Gregory_L_DA-0714-21-0218-I-1__Remand_Order.pdf | 2024-05-02 | GREGORY L. BROWN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-21-0218-I-1, May 2, 2024 | DA-0714-21-0218-I-1 | NP |
1,573 | https://www.mspb.gov/decisions/nonprecedential/McFarland_JamesettaCH-844E-19-0437-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMESETTA MCFARLAND,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-19-0437-I-1
DATE: May 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jamesetta McFarland , Milwaukee, Wisconsin, pro se.
Heather Dowie and Shaquita Stockes , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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)
concluding that the appellant’s application for disability retirement was untimely
filed and that she was not entitled to a waiver of the 1-year time limit for filing
the application. On petition for review, the appellant requests that the Board
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).
reconsider OPM’s decision denying her disability retirement application. Petition
for Review (PFR) File, Tab 1 at 1.2 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).
2 In a March 2, 2020 pleading, the appellant stated that there was a delay in her receipt
of the initial decision and requested until March 16, 2020, to file her petition for
review. PFR File, Tab 1 at 2-3. The Office of the Clerk of the Board treated the filing
as a timely filed petition for review with a request to file a supplemental brief in
support of the petition for review by March 16, 2020, which the Clerk’s Office granted.
PFR File, Tab 2 at 1. The agency filed its response to the petition for review, PFR File,
Tab 3, and by a letter dated March 14, 2020, the appellant requested an extension of
time to file her supplemental filing in support of her petition for review, PFR File,
Tab 4. Because of the delay in processing filings due to the mandatory telework
requirement implemented for all Board employees as a result of the COVID-19
pandemic, the appellant’s filing was not received by the Clerk’s Office until April 28,
2020, and the Board granted the appellant an extension of time to file her reply until
May 18, 2020. PFR File, Tab 5. By a letter postmarked May 30, 2020, the appellant
requested an additional extension of time to file her reply until July 15, 2020. PFR File,
Tab 6. By a letter dated June 19, 2020, the Clerk’s Office denied the appellant’s
additional request for an extension of time to file her reply as untimely filed. PFR File,
Tab 7; see 5 C.F.R § 1201.114(f)-(g). Consequently, the only responsive pleading in
the record on review is the appellant’s initial filing stating only her intention of filing a
petition for review, which we have treated as her petition for review. PFR File, Tab 1.2
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 | McFarland_JamesettaCH-844E-19-0437-I-1__Final_Order.pdf | 2024-05-02 | JAMESETTA MCFARLAND v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-19-0437-I-1, May 2, 2024 | CH-844E-19-0437-I-1 | NP |
1,574 | https://www.mspb.gov/decisions/nonprecedential/Labrador_RemediosSF-0831-22-0342-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REMEDIOS LABRADOR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-22-0342-I-1
DATE: May 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles, I , San Narciso, Zambales, Philippines, for the appellant.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal alleging that the Office of Personnel Management (OPM)
improperly failed to issue a final decision on her “claimed survivor entitlement to
an annuity” as barred by the doctrine of res judicata, or, in the alternative, for
lack of jurisdiction. On petition for review, the appellant reiterates her request
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).
for the Board to remand her case to OPM for OPM to issue a final decision,
claims that OPM failed to properly process her application to make a survivorship
deposit into the Civil Service Retirement and Disability Fund (Fund) in or around
2007, and reargues the underlying issue of her late husband’s service and that she
is entitled to make a deposit into the Fund. 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 clarify that we are dismissing the appeal for lack of jurisdiction,
we AFFIRM the initial decision.
The appellant in this case appears to be primarily claiming that OPM
refused or improperly failed to issue a final decision on her renewed request to
make a deposit into the Fund based on her late husband’s Federal civilian service
and that the Board should thus assert jurisdiction and remand the matter to OPM
to issue a final decision. Initial Appeal File (IAF), Tab 1 at 1, Tab 3 at 1.
However, she also appears to be attempting to relitigate a final decision issued by
OPM in 2008 that found that she had no right to make a deposit into the Fund or
receive a survivor’s annuity benefit because her late husband’s service was not
covered under the Civil Service Retirement System (CSRS). IAF, Tab 3 at 1-14,
Tab 5 at 9-10. The administrative judge found that the “entangled nature” of2
these arguments warranted discussion of the preclusion issues first. IAF, Tab 6,
Initial Decision (ID) at 6. However, the existence of Board jurisdiction is a
threshold issue in adjudicating an appeal. Hasanadka v. Office of Personnel
Management, 116 M.S.P.R. 636, ¶ 19 (2011). Further, the Board must have
jurisdiction over an appeal for the doctrine of res judicata to apply. See Hicks v.
U.S. Postal Service , 83 M.S.P.R. 599, ¶ 12 (1999). Therefore, the administrative
judge should have discussed the jurisdictional issue first before addressing
whether the appeal was barred by the doctrine of res judicata. Because we agree
with the administrative judge’s conclusion that OPM did not refuse or improperly
fail to issue a final decision in this case, we modify the initial decision to dismiss
the appeal for lack of jurisdiction. ID at 9-11.
However, to the extent that the appellant is attempting to relitigate OPM’s
2008 final reconsideration decision finding that she had no right to make a
deposit into the Fund or to receive a survivor’s annuity benefit because her late
husband’s service was not covered under CSRS, and the Board would have
jurisdiction, we agree with the administrative judge’s conclusion that the appeal
is barred by the doctrine of res judicata. See Muyco v. Office of Personnel
Management, 104 M.S.P.R. 557, ¶ 8 (2007).
Accordingly, we affirm the initial decision as modified.
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
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
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 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. 115-195,6
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.
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 | Labrador_RemediosSF-0831-22-0342-I-1 Final Order.pdf | 2024-05-02 | REMEDIOS LABRADOR v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-22-0342-I-1, May 2, 2024 | SF-0831-22-0342-I-1 | NP |
1,575 | https://www.mspb.gov/decisions/nonprecedential/Frazier_Kenya_CB-7121-21-0020-V-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENYA FRAZIER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CB-7121-21-0020-V-1
DATE: May 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Suzanne Pillari , Esquire, Syracuse, New York, for the appellant.
Jean Del Colliano , Esquire, and Shira Siskind , Esquire, New York, New
York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a request for review of an arbitration decision
upholding her 60-day suspension. For the reasons set forth below, we DISMISS
the request for review for lack of jurisdiction.
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
Effective December 9, 2020, the agency suspended the appellant from
her position as a Claims Specialist for 60 days based on the charge of conduct
unbecoming a Federal employee. Request for Review (RFR) File, Tab 1 at 55-60,
62-68. The appellant’s union filed a grievance on her behalf, which the agency
denied; thereafter, the appellant invoked arbitration. Id. at 70-71, 73. Following
a 2-day hearing, the arbitrator issued an August 25, 2021 decision finding that the
agency proved its charge and upholding the appellant’s 60-day suspension.
Id. at 233-62.
On September 24, 2021, the appellant filed a request for review of the
arbitrator’s decision with the Board.2 Id. at 1-32. Among other things,
the appellant asserted that the Board has jurisdiction to review the arbitration
decision because she raised “issues under [] Article 18” of the applicable
collective bargaining agreement (CBA), which pertains to equal employment
opportunity matters, both on her “Standard Grievance Form” and “in the Union’s
requested findings in the associated Post-Hearing Brief.” Id. at 9-11, 70, 267 -75.
The agency has filed a response asserting, among other things, that the Board
lacks jurisdiction over the matter because the appellant failed to raise a claim of
discrimination before the arbitrator. RFR File, Tab 3 at 14-15.
ANALYSIS
As explained in our acknowledgment order, it is the appellant’s burden to
prove that the Board has jurisdiction over this matter by preponderant evidence.
RFR File, Tab 2 at 2-3; see 5 C.F.R. § 1201.56(b)(2)(i)(A). As further explained,
2 The appellant initially filed her request with the Board’s Northeastern Regional
Office; however, it was thereafter transferred to the New York Field Office. Frazier v.
Social Security Administration , MSPB Docket No. PH-0752-21-0366-I-1, Initial Appeal
File, Tab 1, Tab 5, Initial Decision (ID) at 2 n.1. On September 30, 2021,
an administrative judge in the New York Field Office issued an initial decision
forwarding the matter to the Office of the Clerk of the Board for redocketing as a
request for review of the arbitrator’s decision. ID at 2. The matter was thereafter
redocketed. RFR File, Tab 2 at 1. 2
the Board has jurisdiction over a request for review of an arbitration decision
when the following conditions are met:
(1) the subject matter of the grievance is one over which the Board
has jurisdiction; (2) the appellant either (i) raised a claim of
discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in
connection with the underlying action, or (ii) raises a claim of
discrimination in connection with the underlying action under
5 U.S.C. § 2302(b)(1) for the first time with the Board if such
allegations could not be raised in the negotiated grievance procedure;
and (3) a final decision has been issued.
RFR File, Tab 2 at 2; Jones v. Department of Energy , 120 M.S.P.R. 480, ¶ 8
(2013), aff’d sub nom. Jones v. Merit Systems Protection Board , 589 F. App’x
972 (Fed. Cir. 2014); see 5 C.F.R. § 1201.155(a)(1), (c).
Here, we find, and neither party disputes, that conditions (1)3 and (3) are
satisfied; however, we conclude that the appellant failed to meet her burden
concerning condition (2). As stated, the appellant alleges that she raised a claim
of discrimination before the arbitrator by raising Article 18 of the CBA on both
her “Standard Grievance Form” and in her arbitration closing brief. RFR File,
Tab 1 at 10-11. The appellant’s reliance on her grievance form, however, is
misplaced. Indeed, to satisfy condition (2), it was incumbent upon the appellant
to prove that she raised discrimination under 5 U.S.C. § 2302(b)(1) with the
arbitrator.4 See Jones, 120 M.S.P.R. 480, ¶ 8; see also Scanlin v. Social Security
Administration, 2022 MSPB 10, ¶ 5 (finding unavailing the appellant’s assertion
that she had raised a claim of disability discrimination in her grievance with the
3 The appellant’s 60-day suspension, which was the subject matter of the grievance, is
an action appealable to the Board under chapter 75 of title 5 of the United States Code.
5 U.S.C. §§ 7512(2), 7513(d).
4 With her request for review, the appellant provided a copy of the arbitration hearing
transcript, which indicates that she submitted her grievance form into evidence before
the arbitrator. RFR File, Tab 1 at 70, 181. We find, however, that the appellant’s
submission of this form does not warrant a different outcome. Indeed, the grievance
form only generally references discrimination and equitable treatment. Id. at 70.
Moreover, the appellant did not explain why she was submitting the form into evidence.3
agency because the jurisdictionally dispositive issue was whether she had raised
discrimination with the arbitrator).
Regarding her arbitration closing brief, the appellant avers that she “raised
issues under [] Article 18 (Equal Employment Opportunity []),” and, therefore,
raised a claim of discrimination under 5 U.S.C. § 2302(b)(1). RFR File, Tab 1
at 10-11. The appellant provides the Board with a copy of her arbitration closing
brief. Id. at 210-31. In this brief, the appellant requested that the arbitrator find
that the agency had violated the subject article of the CBA and stated that, if it
was “determined that the [a]gency acted in a discriminatory manner and in
retaliation against the [appellant] in violation of Article 18 or otherwise for her
[u]nion membership and/or protected class status, the [a]rbitrator is asked to
consider and award compensatory damages as appropriate pursuant to the
applicable EEOC retaliation provisions.” Id. at 211-12, 267-75. We find that the
appellant’s vague references to discrimination and retaliation vis-à-vis Article 18
do not show that she raised a discrimination claim under 5 U.S.C. § 2302(b)(1)
with the arbitrator, as required. See Scanlin, 2022 MSPB 10, ¶ 6 (concluding that
the appellant failed to raise a claim of discrimination with the arbitrator when she
generally referenced discrimination but failed to address the issue in a substantive
way). Indeed, the appellant’s brief did not explain the “protected class status” to
which she referred or otherwise identify the basis of her purported discrimination
claim. RFR File, Tab 1 at 212. To the extent she sought to allege that the agency
had discriminated and/or retaliated against her on the basis of her union
membership, id., her claim would not fall under the purview of 5 U.S.C.
§ 2302(b)(1), as required, see 5 U.S.C. § 2302(b)(1)(A)-(E). Accordingly,
we find the appellant’s arguments unavailing.5
5 Although not raised in her request for review, the appellant also requested in her
closing brief that the arbitrator find that the agency had violated Article 3 of the CBA,
which pertains to “Employee Rights.” RFR File, Tab 1 at 211, 277-79. Regarding her
Article 3 claim, the appellant stated as follows: “the Grievant is a Bargaining Unit
Employee, whose status as both an employee and as a minority class must be afforded
fair and equitable treatment.” Id. at 214 (emphasis in original). Again, however, the4
With her request for review, the appellant also included the arbitration
decision, which fails to address discrimination under 5 U.S.C. § 2302(b)(1) in any
substantive way.6 RFR File, Tab 1 at 233-62. In the decision, the arbitrator
summarized the issues before him as follows: “Did the Agency have just cause,
and will it promote the efficiency of the Service, to issue Grievant a 60-day
suspension and, if not, what shall by the remedy?” Id. at 235. At the hearing, the
appellant’s counsel provided a similar recitation of the issues. Id. at 78. The
appellant’s counsel neither identified nor discernably elicited any further details
about the discrimination claim(s) presented to the arbitrator.
Accordingly, we find that the appellant has failed to meet her jurisdictional
burden of proving that she raised a claim of discrimination under 5 U.S.C.
§ 2302(b)(1) with the arbitrator in connection with the underlying action. We
find that, because the appellant could have raised a discrimination claim before
the arbitrator but has not proven that she did so, the Board lacks jurisdiction over
her request for review.
ORDER
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
appellant’s brief did not elaborate on this apparent claim, despite having provided
substantive argument on other issues, to include how the agency had violated Article 9
by failing to foster a safe work environment. Id. at 230-31; see Scanlin, 2022 MSPB
10, ¶ 6 (reasoning that the appellant’s arbitration closing brief did not show that she had
raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) in part because the brief
contained substantive and lengthy arguments on certain issues but did not elaborate on
the appellant’s generic reference to discrimination).
6 The arbitration decision references the appellant having alleged that her discipline was
“motivated by impermissible considerations,” RFR File, Tab 1 at 256; however, we are
unable to discern the basis for this statement and, therefore, whether the “impermissible
considerations” pertained to a claim of discrimination under section 2302(b)(1). 5
NOTICE OF APPEAL RIGHTS7
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:
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.6
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 any7
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’s8
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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. 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 | Frazier_Kenya_CB-7121-21-0020-V-1__Final_Order.pdf | 2024-05-02 | KENYA FRAZIER v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CB-7121-21-0020-V-1, May 2, 2024 | CB-7121-21-0020-V-1 | NP |
1,576 | https://www.mspb.gov/decisions/nonprecedential/Ventriglia_Pasquale_J_DC-0752-18-0388-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PASQUALE J. VENTRIGLIA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-18-0388-I-1
DATE: May 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Pasquale J. Ventriglia , Warrenton, Virginia, pro se.
Earl L. Cotton , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his removal for lack of Board jurisdiction. For the
reasons discussed below, we GRANT 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.
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).
2
BACKGROUND
The appellant served as an Electronic Technician at the agency’s Dulles
Processing and Distribution Center in Virginia. Initial Appeal File (IAF), Tab 5
at 8. The appellant began working for the agency in 1998. Id. Effective
March 3, 2018, the agency removed the appellant on the charge of improper
conduct. IAF, Tab 4 at 2-6, Tab 5 at 8. On March 19, 2018, the appellant filed
an appeal with the Board contesting his removal, claiming that he was preference
eligible. IAF, Tab 1.
The agency moved to dismiss the appeal for lack of jurisdiction, arguing
that the appellant was not an “employee” with Board appeal rights, as he was not
preference eligible based on his military service. IAF, Tab 5. The appellant
opposed the motion, averring that he was preference eligible because he served in
the U.S. Army in an active-duty status from 1979 to 1987, and was part of a
campaign or expedition for which the Korea Defense Service Medal (KDSM) was
authorized. IAF, Tabs 9, 10, 17. In support of his position, the appellant
submitted his Department of Defense Form 214, Certificate of Discharge from
Active Duty (DD Form 214), which outlined his more than 7 years of active
service, along with documentation from the National Personnel Records Center
stating that he was awarded the KDSM. IAF, Tab 9 at 10, Tab 17 at 5.
The administrative judge issued the appellant two orders outlining his
burden to establish jurisdiction over his appeal. IAF, Tabs 7, 13. In response, the
appellant stated that his DD Form 214 did not include the KDSM because the
form was issued to him in 1987, when he was honorably discharged from the
military and the KDSM was not awarded to him until 2005. IAF, Tab 17 at 1-5.
After considering the parties’ replies, the administrative judge issued an initial
decision dismissing the appeal for lack of Board jurisdiction. IAF, Tabs 17-19,
Tab 22, Initial Decision (ID) at 1-5. Specifically, the administrative judge found
that the appellant was not an “employee” with Board appeal rights, as he failed to
prove that he was a preference eligible because his DD Form 214 did not list
3
receipt of the KDSM (or any other relevant campaign badge).2 ID at 4. The
appellant’s petition for review followed, and the agency responded in opposition.
Petition for Review File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant met his burden of establishing Board jurisdiction over his appeal by
preponderant evidence.
The Board’s jurisdiction is not plenary, but rather is limited to that granted
by law, rule, or regulation. Edwards v. Department of Veterans Affairs ,
82 M.S.P.R. 593, ¶ 4 (1999). An appellant bears the burden of proving Board
jurisdiction in a removal appeal by preponderant evidence. 5 C.F.R. § 1201.56(b)
(2)(i)(A). Under 5 U.S.C. chapter 75, subchapter II, an individual who meets the
definition of “employee” at 5 U.S.C. § 7511(a)(1) generally has the right to
challenge his removal from the Federal service by filing an appeal with the
Board. 5 U.S.C. §§ 7512(1), 7513(d). In order for a Postal Service employee to
meet this definition, he must: (1) be 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) have completed 1 year of current
continuous service in the same or similar positions. Clark v. U.S. Postal Service ,
118 M.S.P.R. 527, ¶ 7 (2012); see 39 U.S.C. § 1005(a); 5 U.S.C. § 7511(a)(1)(B)
(ii).
In accordance with 5 U.S.C. § 2108(3)(A), an individual who meets the
definition of a “veteran” in section 2108(1)(A) qualifies as “preference eligible.”
A “veteran” means an individual who “[s]erved on active duty in the armed forces
during a war, [or] in a campaign or expedition for which a campaign badge has
been authorized . . . .” 5 U.S.C. § 2108(1)(A). Our reviewing court has
explained that this provision requires an appellant to prove both that he was on
active duty in the armed forces during, or at the time of, the campaign, and that
he actually served in the campaign or expedition for which the campaign badge
2 The appellant withdrew his request for a hearing. IAF, Tab 21 at 3.
4
was authorized.3 See Perez v. Merit Systems Protection Board , 85 F.3d 591, 594
(Fed. Cir. 1996).
In the initial decision, the administrative judge found that the appellant did
not prove that he was preference eligible because his DD Form 214 does not show
that he received an authorized campaign badge. ID at 4. Yet, there is no
requirement that an appellant provide a DD Form 214 listing a campaign badge in
order to be deemed preference eligible. While producing a DD Form 214 is one
of the methods by which an appellant can prove veterans’ preference eligibility, it
is not the only method. See Hamilton v. U.S. Postal Service , 86 M.S.P.R. 215,
¶ 7 (2000) (holding that a DD Form 214 is acceptable proof of entitlement to
veterans’ preference). According to the Office of Personnel Management (OPM),
a DD Form 214 “. . . or other official documents issued by the branch of service
are required as verification of eligibility for Veterans preference.” OPM,
Veterans Services, Vet Guide,
https://www.opm.gov/policy-data-oversight/veterans-services/vet-guide-for-hr-
professionals/ (last visited May 2, 2024).
The KDSM is included on the list of campaigns and expeditions which
qualify for veterans’ preference. Id. Section 543 of the Bob Stump National
Defense Authorization Act for Fiscal Year 2003 directed the Secretary of the
Army to issue the KDSM “to each . . . member of the Army [who] served in the
Republic of Korea or the waters adjacent thereto . . .” beginning on July 28, 1954.
Pub. L. No. 107-314, 116 Stat. 2458, 2549; see 10 U.S.C. § 7286.4 The KDSM is
not listed on the appellant’s DD Form 214 included in the record, as that form
3 An Armed Forces Expeditionary Medal, such as the KDSM, is the same for preference
eligibility purposes as a campaign badge. Sellers v. U.S. Postal Service , 98 M.S.P.R.
44, ¶¶ 9-10 (2004); OPM, Veterans Services, Vet Guide, https://www.opm.gov/policy-
data-oversight/veterans-services/vet-guide-for-hr-professionals/ (last visited May 2,
2024).
4 This provision of law was originally codified in 2002 at 10 U.S.C. § 3755. It was
renumbered as 10 U.S.C. § 3756 in 2004, Pub. L. No. 108-375, 118 Stat. 1811, 2063,
and renumbered again as 10 U.S.C. § 7286 in 2018, Pub. L. No. 115-232, 132 Stat.
1636, 1838.
5
was issued in 1987, and the KDSM was not authorized by Congress until
approximately 16 years later. Because the appellant’s DD Form 214 did not
denote receipt of the KDSM, he submitted a letter from the office at the National
Personnel Records Center that oversees military records confirming that he was
awarded the KDSM. IAF, Tab 9 at 10. This submission is the type of document
recognized in OPM’s guidance as acceptable to verify eligibility for veterans’
preference.
We find that, based on the evidence of record, the appellant proved by
preponderant evidence that he is a preference eligible employee because he
served on active duty in the armed forces in a campaign for which a campaign
badge was authorized and he also completed 1 year of current continuous service
with the Postal Service in the same or similar positions.5 As such, the appellant is
an “employee” under 5 U.S.C. § 7511(a)(1)(B)(ii), and the Board has jurisdiction
over this appeal. See 5 U.S.C. § 7513(d). A remand of this appeal to be
adjudicated on the merits is warranted. See Collins v. U.S. Postal Service ,
88 M.S.P.R. 551, ¶¶ 10-11 (2001) (remanding an appeal of a removal for further
adjudication after finding that the appellant met his burden in proving that he is
an “employee” with Board appeal rights due to his preference eligibility).
5 Title 38 of the United States Code, section 5303A(d)(1)-(2), excludes a veteran from
preference eligibility if his active-duty service began after September 7, 1980, and he
did not serve either 24 continuous months on active duty or the full period for which he
was called. This provision does not apply to the appellant, as he began his more than
7 years of continuous active-duty service tenure in 1979. IAF, Tab 17 at 5.
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.6
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
6 As an employee with Board appeal rights, the appellant had the right to receive prior
notice and an opportunity to respond to his proposed removal. See Cleveland Board of
Education v. Loudermill , 470 U.S. 532, 546 (1985); see also Ray v. Department of the
Army, 97 M.S.P.R. 101, ¶ 22 (2004), aff’d, 176 F. App’x 110 (Fed. Cir. 2006) (Table).
The record on whether the appellant received this minimal due process is unclear. On
remand, this issue shall be addressed by the administrative judge. In addition, the
appellant repeatedly alleged that the agency removed him in reprisal for whistleblowing
activity. IAF, Tab 9 at 11-12, Tab 20 at 3. While Postal Service employees cannot
bring a claim of whistleblower reprisal under 5 U.S.C. § 1221, the claim can be raised
as an affirmative defense in a Board appeal of an otherwise appealable action. See Hess
v. U.S. Postal Service , 123 M.S.P.R. 183, ¶ 8 (2016). If the administrative judge
determines that the appellant raised this as an affirmative defense, it too shall be
adjudicated on remand. | Ventriglia_Pasquale_J_DC-0752-18-0388-I-1__Remand_Order.pdf | 2024-05-02 | PASQUALE J. VENTRIGLIA v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-18-0388-I-1, May 2, 2024 | DC-0752-18-0388-I-1 | NP |
1,577 | https://www.mspb.gov/decisions/nonprecedential/Jones_David_S_DA-0752-22-0236-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID S. JONES,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-22-0236-I-1
DATE: May 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
David S. Jones , El Paso, Texas, pro se.
Bobbi K. Mihal , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal and denied his affirmative defense of reprisal for equal
employment opportunity (EEO) activity. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the Denver Field Office for further adjudication in
accordance with this Remand Order.
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 appellant was employed as a Mail Handler Tech at the agency’s
Processing and Distribution Center in El Paso, Texas. Initial Appeal File (IAF),
Tab 6 at 26. The agency removed him, effective March 28, 2022, based on
charges of failure to maintain regular attendance (one specification), failure to
follow leave requesting procedures (two specifications), and absence without
leave (AWOL) (two specifications). Id. at 13-17. The agency alleged that the
appellant was both AWOL and failed to maintain regular attendance when he did
not report to work or left early on 10 occasions between December 1 and
December 24, 2021. Id. at 13-14. The total resulting AWOL was 31.76 hours.
Id. at 14. The agency further alleged that the appellant failed to request leave,
have his absence approved in advance, and complete a Postal Service Form 3971,
Request for Notification of Absence (PS Form 3971), for “one or more” of these
dates. Id. at 13-14, 57-58, 61-62, 65, 68-69, 71, 73, 75.
The appellant appealed his removal, raising an affirmative defense of
reprisal for prior EEO activity. IAF, Tab 1 at 5. The administrative judge issued
an affirmative defense order, notifying the appellant of his burden of proof to
establish an affirmative defense of discrimination under Title VII; however, the
order did not notify him of his burden to establish disability discrimination. IAF,
Tab 8. The appellant did not respond.
Because the appellant did not request a hearing, the administrative judge
issued an initial decision based on the written record affirming the removal. IAF,
Tab 21, Initial Decision (ID) at 1, 13. He sustained all the charges, finding the
agency proved all the specifications. ID at 6-14. The administrative judge also
found the appellant failed to prove his affirmative defense of reprisal based on
EEO activity. ID at 3-5. He determined the agency established nexus between
the appellant’s misconduct and the efficiency of the service. ID at 5. Lastly, he
determined that the deciding official properly considered the relevant mitigating2
and aggravating factors and that the penalty of removal was within the tolerable
limits of reasonableness.2 ID at 9-12.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. In his petition for review, the appellant appears to
allege that his removal was improper because he requested leave under the Family
Medical Leave Act of 1993 (FMLA) and because the agency improperly denied
his requests for reasonable accommodation. Id. at 4-5. The agency has
responded to the petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We remand the appeal to afford the appellant an opportunity to address his
affirmative defense of disability discrimination.
On review, the appellant alleges that his attendance issues that served as
the basis for his removal were caused by his “serious condition/disabilities,”
which the agency improperly failed to accommodate, and that the agency failed to
engage in the interactive process. PFR File, Tab 1 at 4-5. The administrative
judge did not address this claim in his initial decision. The agency argues that the
appellant did not raise this affirmative defense below, and thus essentially waived
it. PFR File, Tab 3 at 6. Based on the circumstances in this case, we disagree
that the appellant failed to raise or abandoned this defense and remand the appeal
to afford the appellant an opportunity to address his affirmative defense of
disability discrimination.
2 The administrative judge observed that the charges of failure to follow leave
requesting procedures and AWOL merged, but found the merger did not alter his
penalty analysis. ID at 10-11. The parties do not challenge this reasoning on review,
and we discern no basis to disturb it. See Shiflett v. Department of Justice , 98 M.S.P.R.
289, ¶ 12 (2005) (explaining that merging charges does not mean that the duplicative
charge is not sustained or that the appellant’s misconduct somehow becomes less
serious by virtue of the merger); Jones v. Department of Justice , 98 M.S.P.R. 86, ¶ 16
(2004) (finding that an AWOL charge merged with a charge of failure to follow
instructions to provide evidence of medical incapacity when they were based on the
same period and the appellant’s failure to provide the required evidence caused him to
be AWOL).3
The appellant raised a disability discrimination claim, entitling him
to notice of his burden to prove this claim.
When an appellant raises an affirmative defense, the administrative judge
must address the affirmative defense in a close of record order or prehearing
conference summary. Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 10, 17
n.7. The appellant must be provided with notice of his burden to prove his
claims. Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 17 (2015).
Although in the appellant’s initial appeal he only raised an affirmative
defense of reprisal for EEO activity, he subsequently submitted two documents in
which he alleged that his management chain was discriminating against him based
on his medical condition. IAF, Tab 1 at 5, Tab 5 at 1-3. Specifically, the
appellant submitted a copy of a November 9, 2018 statement that he indicated he
submitted to the “union and EEO,” seeking protection under the “Americans with
Disabilities Act” in connection with his supervisor’s behavior. IAF, Tab 5 at 1.
He also submitted a copy of a March 22, 2018 statement that he identified as a
union complaint in which he alleged he was treated unfairly because he is a
“disabled veteran,” in violation of the “Rehabilitation Act of 1973.” Id. at 2-3.
He later filed a pleading titled “EEO Submissions” that included copies of these
documents. IAF, Tab 18 at 3-4, 12.
The appellant did not provide any additional information about his medical
condition or offer any explanation of how the agency’s later removal decision was
due to the agency’s failure to accommodate his medical condition. However, in
response to the affirmative defense order, the agency submitted information
demonstrating that the appellant contacted an EEO counselor in December 2021
claiming that his supervisor was discriminating against him based on his mental
and physical disabilities and retaliating against him for filing prior EEO
complaints when he denied the appellant’s requests for leave without pay and
charged him AWOL. IAF, Tab 10 at 32-34. We find that the above information
is sufficient to show that the appellant raised and attempted to pursue an4
affirmative defense of disability discrimination. See Turner v. Department of
Veterans Affairs , 94 M.S.P.R. 381, ¶¶ 3, 7 (2003) (agreeing with an
administrative judge’s determination that a pro se appellant raised an affirmative
defense of disability discrimination when he challenged his removal and alleged
that he had medical conditions, was seeking treatment, and that the agency did
not offer to help him); Melnick v. Department of Housing and Urban
Development, 42 M.S.P.R. 93, 97 (1989) (recognizing that pro se pleadings are to
be liberally construed), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).
Here, at no point during the proceeding below or in his initial decision did
the administrative judge notify the appellant of his burden of proof to establish an
affirmative defense of disability discrimination, including a failure to provide a
reasonable accommodation. IAF, Tabs 2, 8, 11, 17, 21. Moreover, the agency
did not provide these notices to the appellant in its response to the affirmative
defense order.3 IAF, Tab 10 at 45; see Parker v. Department of Housing and
Urban Development , 106 M.S.P.R. 329, ¶¶ 7-8 (2007) (stating that an
administrative judge’s failure to provide an appellant with specific notice of his
jurisdictional burden can be cured if the agency’s pleadings or the initial decision
contain the required notice).
The appellant did not waive or abandon his disability discrimination
claim.
The agency argues that the appellant waived an affirmative defense of
disability discrimination because at no point during his oral reply to his proposed
removal or during the proceedings below did the appellant allege that his
December 2021 absences and attendance deficiencies were due to his medical
condition or the agency’s failure to accommodate such a condition. PFR File,
3 The agency file contains the final agency decision (FAD) concerning the appellant’s
prior July 2021 EEO complaint. IAF, Tab 10 at 36-67. The FAD informed the
appellant of how to establish a prima facie case of disability discrimination, but it did
not advise the appellant of his burden of proof to establish a disability discrimination
affirmative defense based on the agency’s failure to provide a reasonable
accommodation. Id. at 55-56. 5
Tab 3 at 6. Rather, according to the agency, in his oral reply the appellant
alleged that the reasons for his attendance issues were that he was not told ahead
of time that he needed to work, he left work early of his own accord without
being given permission when he saw employees from another shift arriving, and
he had childcare issues. Id. Although we agree that the appellant did not
expressly state that his attendance issues on the dates underlying the removal
were attributable to his medical conditions and the agency’s failure to
accommodate them, we do not find that the appellant waived an affirmative
defense of disability discrimination.
In determining whether an appellant has waived or abandoned a previously
raised affirmative defense, the Board will consider the following nonexhaustive
factors: (1) the thoroughness and clarity with which the appellant raised an
affirmative defense; (2) the degree to which the appellant continued to pursue the
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 specifically afforded an
opportunity to object and the consequences of the failure were made clear;
(4) whether the appellant raised the affirmative defense or the administrative
judge’s processing of the affirmative defense claim in the petition for review;
(5) whether the appellant was represented during the course of the appeal before
the administrative judge and on petition for review, and if not, the level of
knowledge of Board proceedings possessed by the appellant; and (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. Thurman, 2022 MSPB 21, ¶ 18.
As established above, we find that there is sufficient information in the
record to show that the appellant clearly raised and attempted to pursue an
affirmative defense of disability discrimination. Moreover, although it does not
appear that the appellant provided a written response to the affirmative defense6
order or an objection to the close of record conference order, we find those
considerations outweighed by the fact that the administrative judge failed to
provide this pro se appellant notice of his burden to establish a disability
discrimination affirmative defense and failed to address the defense in the close
of record order.4 Thus, we find that a remand is necessary to provide the
appellant notice of his burden and an opportunity to address his affirmative
defense of disability discrimination.5 Id., ¶ 17 n.7 (2018).
4 In the agency’s response to the affirmative defense order, it references the appellant’s
“response to the Affirmative Defense Order dated May 26, 2022.” IAF, Tab 10 at 7. At
the close of record conference, which the appellant did not attend, the administrative
judge sought clarification from the agency concerning this May 26th submission
because the appellant had failed to submit it to the Board. IAF, Tab 11 at 1-2. The
agency clarified that the appellant had submitted an undated 6-page pleading, which the
agency received on May 26, 2022. Id. In the order summarizing the conference, the
administrative judge clearly notified the appellant that the Board had not received this
pleading, yet the appellant did not respond or file it with the Board. Id. at 2. We
discern no abuse of discretion by the administrative judge in his handling of this matter.
See Dieter v. Department of Veterans Affairs , 2022 MSPB 32 ¶ 23 (recognizing an
administrative judge’s wide discretion to control the proceedings).
5 The appellant may have been trying to raise a claim of discrimination under the
Uniformed Services Employment and Reemployment Rights Act of 1994 ( USERRA)
when he twice submitted documentation below alleging that he was treated unfairly
because he is a “disabled veteran,” in violation of the “Rehabilitation Act of 1973 or the
Vietnam Era Veterans Readjustment Assistance Act of 1974.” IAF, Tab 5 at 2-3,
Tab 18 at 3-4. The appellant does not re-allege those claims on review, nor does he
otherwise allege that he was discriminated against based on his status as a veteran. On
remand, the administrative judge should clarify the appellant’s claim. To the extent the
appellant is claiming his removal is based on his military service and veteran status, and
not just based on his service-related disability, the administrative judge also shall notify
the appellant of his burden to establish an affirmative defense of discrimination under
USERRA. See Durr v. Merit Systems Protection Board , 844 F. App’x 329, 332 (Fed.
Cir. 2021) (finding Board jurisdiction when the appellant alleged he was denied medical
leave “for reason of [his] status of being a 10-point, military service-connected disabled
veteran,” and that “if another employee had made a request for leave for medical
reasons, that such would have been granted”); Covington v. Department of the Interior ,
2023 MSPB 5, ¶ 19 n.5 (stating that the Board may rely on nonprecedential decisions of
the U.S. Court of Appeals for the Federal Circuit when it finds their reasoning
persuasive); Slentz v. U.S. Postal Service , 92 M.S.P.R. 144, ¶ 9 (2002 ) (determining
that the Board had USERRA jurisdiction over an appellant’s claim of discrimination
based on his status as a disabled veteran); McBride v. U.S. Postal Service , 78 M.S.P.R.
411, 414-15 (1998 ) (explaining that USERRA does not prohibit discrimination based
solely on a disability incurred during military service). 7
On remand the agency must establish that it complied with FMLA as part of its
overall burden of proving the AWOL charge.
On review, the appellant states that he was “informed to get an [FMLA].”
PFR File, Tab 1 at 4. In the record below, the appellant submitted an incomplete
copy of FMLA Designation Notice form (Case No. 109001409735), showing that
on October 25, 2021, just prior to the December 2021 AWOL underlying his
removal, he had been approved to take FMLA-protected leave for his own serious
health condition. IAF, Tab 18 at 5. When FMLA is implicated relative to a
leave-related charge, the agency must prove that it complied with FMLA as part
of its overall burden of proving the charge. Ellshoff v. Department of the
Interior, 76 M.S.P.R. 54, 73-74 (1997). However, the administrative judge did
not identify the agency’s burden at any point throughout the appeal, nor did he
make a finding as to whether the agency complied with FMLA in sustaining the
AWOL charge.
The record contains very limited information concerning the FMLA issue.
Despite the agency’s October 25, 2021 approval of the appellant’s FMLA case,
the agency asserted without explanation that the appellant’s December 2021
absences underlying his removal were not covered by FMLA. IAF, Tab 6 at 5. In
support of this assertion, it submitted copies of the appellant’s PS Forms 3971 for
the absences underlying the removal, which show that the appellant’s absences
were unscheduled and not covered by FMLA. Id. at 57-58, 61-62, 65, 68-69, 71,
73, 75. However, these forms were completed by the agency, and the appellant
refused to sign them. Id. The agency also submitted a record of the appellant’s
leave summary showing that despite having been approved for FMLA leave in
October 25, 2021, none of the appellant’s absences through the remainder of 2021
were designated as FMLA-protected. Id. at 51. The records also show that as of
December 24, 2021, the appellant had a leave balance of 354.69 hours of annual
leave and 84.71 hours of sick leave. Id. at 72, 76. 8
During a December 30, 2021 pre-disciplinary interview, the agency
acknowledged that the appellant had an approved FMLA Case No. 109001409735
for “scheduled appointments,” as well as another FMLA Case No. 109001449006
that was “pending for approval.” IAF, Tab 7 at 9. The agency’s questions during
that interview appear to suggest that on certain dates that were not part of the
removal action, e.g., December 11 and 12, 2021, the appellant attempted to
invoke FMLA. Id. As a U.S. Postal Service employee, the appellant is entitled to
FMLA-protected leave under the provisions of 29 U.S.C. § 2601 and 29 C.F.R.
part 825. Young v. U.S. Postal Service , 79 M.S.P.R. 25, 35 n.4 (1998). However,
here it is unclear whether the appellant attempted to use FMLA leave for his
AWOL absences underlying the removal, whether his FMLA Case No.
109001449006 was ever approved to cover those absences, or whether the agency
was otherwise required to designate those absences as FMLA-protected in light of
his approved FMLA Case No. 109001409735. See 29 C.F.R. § 825.301(a) (“In
any circumstance where the employer does not have sufficient information about
the reason for an employee’s use of leave, the employer should inquire further of
the employee . . . to ascertain whether leave is potentially FMLA-qualifying.”);
see also 29 C.F.R. § 825.301(d) (stating that an employer “may retroactively
designate leave” as FMLA protected). Because there is insufficient information
in the record to determine whether the agency complied with FMLA as part of its
overall burden to prove all the charges, we find that remand is also necessary to
further develop the record on this issue.
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge shall provide the appellant with notice
and information on how he can prove a claim of status-based disability
discrimination and a claim of denial of a reasonable accommodation. He shall9
also provide the agency with notice and information regarding its burden to prove
that it complied with FMLA as part of its overall burden of proving all the
leave-related charges. Additionally, the administrative judge shall allow the
parties to submit additional argument and evidence on these issues.
After fully adjudicating the appellant’s claim of disability discrimination
and developing the record on whether the agency complied with FMLA, the
administrative judge shall then issue a remand initial decision making findings on
these claims. In that remand initial decision, the administrative judge may
incorporate his findings regarding the merits of the appellant’s other affirmative
defense of reprisal for EEO activity, which the parties do not dispute on review
and with which we discern no error. See Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980) .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Jones_David_S_DA-0752-22-0236-I-1__Remand_Order.pdf | 2024-05-02 | DAVID S. JONES v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-22-0236-I-1, May 2, 2024 | DA-0752-22-0236-I-1 | NP |
1,578 | https://www.mspb.gov/decisions/nonprecedential/Mian_ShahwanaDC-0752-21-0109-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAHWANA MIAN,
Appellant,
v.
COURT SERVICES AND OFFENDER
SUPERVISION AGENCY FOR DC,
Agency.DOCKET NUMBER
DC-0752-21-0109-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shahwana Mian , Prospect, Kentucky, pro se.
Runako Kumbula Allsopp , David Cumberbatch , and Donald Tanguilig ,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of an alleged suspension and a constructive suspension
longer than 14 days and an alleged separation from Federal employment for lack
of jurisdiction. For the reasons set forth below, the appellant’s 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 is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
The appellant, a GS-12 Community Supervision Officer, filed the instant
appeal alleging the agency suspended her for over 14 days on November 16,
2020, separated her on December 17, 2020, and constructively suspended her
beginning on January 13, 2021. Initial Appeal File (IAF), Tab 3 at 1, 3, Tab 22
at 3, 10-11, Tab 23 at 8-9, 19-20. In connection with these actions, she also
alleged the agency denied her due process and committed prohibited personnel
practices, including engaging in discrimination and retaliation against her for
engaging in equal employment opportunity activity. IAF, Tab 3 at 5. The agency
moved to dismiss the appeal on the grounds that the appellant was only suspended
for 5 days. IAF, Tab 7 at 6, 9, 75-82.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 29, Initial Decision (ID) at 1, 12. She reasoned
that the appellant failed to nonfrivolously allege that her 5-day suspension in
November 2020 was an appealable adverse action within the Board’s jurisdiction.
ID at 7. She also found conclusory and implausible the appellant’s claim that she
was removed in December 2020. Id. Lastly, the administrative judge found that
the period of AWOL was not a constructive suspension because the appellant
effectively voluntarily absented herself from work. ID at 8-11. The initial
decision stated that it would become final on April 22, 2021, unless a petition for
review was filed by that date. ID at 12.
On August 9, 2021, the appellant filed a petition for review of the initial
decision. Petition for Review (PFR) File, Tab 1 at 3, Tab 2 at 1. She did not
allege any error in the initial decision, but rather stated that she resigned her
employment in June 2021 and requested that the Board require the agency to
process her resignation. PFR File, Tab 1 at 3-5. The Office of the Clerk of the
Board subsequently notified the appellant that her petition for review appeared to2
be untimely and provided her with an opportunity to submit a motion requesting
either to accept the filing as timely or waive the time limit for good cause. PFR
File, Tab 2 at 2. The appellant submitted a motion requesting that the Board
waive the deadline to file the petition for review on the grounds that the agency’s
delay in processing her June 2021 resignation constitutes new and material
evidence. PFR File, Tab 3 at 4. The agency has responded to the petition for
review. PFR File, Tab 4. The appellant has submitted a reply to the agency’s
response. PFR File, Tab 5. Additionally, after the close of record, the appellant
filed a motion to proceed anonymously, which the agency opposed. PFR File,
Tabs 7, 11.
DISCUSSION OF ARGUMENTS ON REVIEW
The petition for review is untimely filed.
The initial decision indicated that the appellant’s petition for review had to
be filed by April 22, 2021. ID at 12. However, the appellant did not file her
petition for review until August 9, 2021, more than 3 months after the deadline.
PFR File, Tab 1. The 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). The appellant is registered as an e-filer and, therefore, is deemed
to have received the initial decision on the date of electronic submission. IAF,
Tab 3 at 2, Tab 30; see Rivera v. Social Security Administration, 111 M.S.P.R.
581, ¶ 5 (2009); 5 C.F.R. § 1201.14(m)(2) (2021). Further, as an e-filer, the
appellant was responsible for monitoring her case activity at e -Appeal to ensure
that she received all case-related documents. 5 C.F.R. § 1201.14(j)(3) (2021).
We deem the appellant to have received the initial decision on March 18,
2021, the date it was electronically submitted. ID at 1; IAF, Tab 30. Therefore,
her deadline for filing a petition for review was 35 days later, on April 22, 2021.3
The appellant’s August 9, 2021 petition for review was untimely by more than
3 months.
The appellant has failed to demonstrate good cause for her untimely filed petition
for review.
In her motion to waive the deadline to file the petition for review, the
appellant stated as good cause for her untimely filing that the agency’s delay in
processing her June 2021 resignation constitutes new and material evidence. PFR
File, Tab 3 at 4. The agency responded submitting a Standard Form 50 showing
that the appellant’s resignation, effective June 2021, was processed in August
2021. PFR File, Tab 4 at 12. The Board will waive its filing deadline only upon
a showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.114(f)-(g). To
establish good cause for an untimely filing, a party must show that she 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 her excuse and her
showing of due diligence, whether she is proceeding pro se, and whether she has
presented evidence of the existence of circumstances beyond her control that
affected her ability to comply with the time limits or of unavoidable casualty or
misfortune which similarly shows a causal relationship to her inability to timely
file her 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). The discovery of new
evidence may constitute good cause for waiver of the Board’s filing deadline if
the evidence was not readily available before the close of the record below and is
of sufficient weight to warrant an outcome different from that of the initial
decision. Minnich v. Office of Personnel Management, 63 M.S.P.R. 573, 575
(1994), aff’d per curiam, 53 F.3d 348 (Fed. Cir. 1995) (Table).
Here, we find the appellant has failed to establish good cause for her
untimely petition for review. Although the appellant is proceeding pro se, her
more than 3-month delay in filing a petition for review is significant. Moreover,4
the agency’s delay in processing her resignation is not material because the
appellant has not shown that it is of sufficient weight as to warrant an outcome
different from that of the initial decision. See Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980). Specifically, she has not shown how the delay in
processing her resignation is relevant to establishing jurisdiction over her alleged
suspension, constructive suspension, and separation. Therefore, we find that the
appellant has not presented new evidence on which to grant review of the initial
decision. See, e.g., Rogers v. Department of Defense, 75 M.S.P.R. 696, 698-99,
(1997) (finding that a letter from an administrative judge of the Equal
Employment Opportunity Commission was not material to the dismissal of a
removal appeal for lack of Board jurisdiction because the appellant did not
explain how the letter showed that the last chance agreement, pursuant to which
he was removed, was invalid).
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 suspension appeal.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
2 Following the close of record on review, the appellant submitted a motion to proceed
anonymously, which the agency opposed. PFR File, Tabs 7, 11. A litigant seeking
anonymity before the Board must present evidence establishing that harm is likely, not
merely possible, if her name is disclosed. Ortiz v. Department of Justice, 103 M.S.P.R.
621, ¶ 10 (2006). Here, the appellant failed to indicate why she is requesting to proceed
anonymously. Accordingly, her request is denied.
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
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 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.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 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
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.
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 | Mian_ShahwanaDC-0752-21-0109-I-1_Final_Order.pdf | 2024-05-01 | SHAHWANA MIAN v. COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR DC, MSPB Docket No. DC-0752-21-0109-I-1, May 1, 2024 | DC-0752-21-0109-I-1 | NP |
1,579 | https://www.mspb.gov/decisions/nonprecedential/Kendall_Joanne_M_AT-0752-18-0127-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOANNE KENDALL,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-0752-18-0127-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nancy M. Kirby , Esquire, Prattville, Alabama, for the appellant.
Sterling Deramus , Esquire, Birmingham, Alabama, for the appellant.
Brandon Roby , Esquire, Fort Meade, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her constructive removal 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 or the erroneous application
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).
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
¶2The appellant was a GS-12 Information Technology Specialist for the
agency’s Defense Intelligence Systems Agency (DISA). Initial Appeal File
(IAF), Tab 15 at 23. When the appellant was initially hired in 2010, she worked
the day shift, with duty hours of 7:00 a.m. to 3:00 or 4:00 p.m. IAF, Tab 15
at 25; Hearing Recording (HR), Track 1 at 4:45 (testimony of the appellant). In
2013, the appellant’s office underwent a reorganization, and the agency moved
her to the swing shift, with duty hours of 2:00 p.m. to 11:00 p.m. IAF, Tab 30
at 13-14; HR, Track 1 at 5:40 (testimony of the appellant). In May 2016, the
appellant applied for leave under the Family and Medical Leave Act of 1993
(FMLA) in order to help care for her husband, who had been diagnosed with
cancer, and the agency returned her to the day shift in order to help accommodate
her schedule. IAF, Tab 30 at 16-17; HR at 6:20 (testimony of the appellant).
¶3Sometime around December 2, 2016, the appellant’s office underwent
another reorganization, and the agency informed her that it was moving her back
to the swing shift, Tuesday through Saturday, effective December 25, 2016.
IAF, Tab 30 at 8, 10. On December 2, 2016, the appellant emailed her first- and2
second-line supervisors, asking them to reconsider placing her on the swing shift.
Id. at 8. The appellant cited her husband’s health, anticipating that she would
need to help care for him until at least the following April, as well as her own
health, which she stated had been affected by her previous time on the swing
shift.2 Id. She stated that she would probably need to ask for a reasonable
accommodation. Id. The appellant also included on the email the human
resources Field Advisor who had been her point of contact regarding her FMLA,
and stated that they needed to touch base regarding her FMLA status. Id.
On December 12, 2016, the appellant submitted medical documentation to support
her request for reasonable accommodation. IAF, Tab 12 at 5, Tab 14 at 40-42.
Her claimed disabling condition was sleep apnea, and her requested
accommodation was to be allowed to remain on the day shift. IAF, Tab 14
at 40-42.
¶4The agency did not act on the appellant’s request, and on
December 25, 2016, her change to the swing shift went into effect. HR, Track 1
at 26:00 (testimony of the appellant). The appellant immediately began taking
large amounts of leave in the evenings and on Saturdays so that she could get to
bed earlier and care for her husband. Id. at 26:10, (testimony of the appellant).
Around the middle of January 2017, the appellant ran out of paid leave and began
to use leave without pay. HR, Track 1 at 29:20, Track 3 at 21:15, 32:10
(testimony of the appellant). On January 11, 2017, the appellant submitted a
request to participate in the agency’s Voluntary Leave Transfer Program (VLTP).
IAF, Tab 8 at 29; see 5 C.F.R. § 630.901 (explaining that a VLTP allows for the
transfer of the accrued, unused annual leave of one employee to another employee
who needs such leave because of a medical emergency). Despite the appellant’s
further efforts during the following month, the agency never reached a decision
on her VLTP or reasonable accommodation requests, although it did afford her an
2 In her email, the appellant refers to the swing shift as the “night shift.” IAF, Tab 30
at 8.3
interim accommodation by allowing her to begin her tour of duty 2 hours earlier.
IAF, Tab 8 at 3, Tab 17 at 29. Then, on February 14, 2017, the agency informed
the appellant that her FMLA approval would expire in 15 days if she did not
provide updated information on her husband’s medical condition. IAF, Tab 8
at 75. On February 24, 2017, the appellant tendered her resignation, effective
February 27, 2017. IAF, Tab 5 at 23-24.
¶5Having previously sought resolution through an equal employment
opportunity (EEO) counselor, on March 13, 2017, the appellant filed a formal
complaint of discrimination, which the agency processed as a mixed case because
it involved a claim of constructive removal. IAF, Tab 28 at 5-11. The agency
issued a final decision finding no discrimination, and the appellant filed the
instant Board appeal. IAF, Tab 1 at 4, 6, 9-43. After a hearing, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction on the basis that the appellant failed to prove that her resignation was
involuntary. Initial Appeal File (IAF), Tab 139, Initial Decision (ID).
¶6The appellant has filed a petition for review, arguing that the administrative
judge applied the wrong standard to her appeal when she failed to analyze it as an
involuntary disability retirement. Petition for Review (PFR) File Tab 1 at 9-10,
15-16. She argues that her resignation was involuntary because the agency
unjustifiably failed to offer her a reasonable accommodation for her sleep apnea.
Id. at 10-16. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶7Although various fact patterns may give rise to an appealable constructive
adverse action, all constructive adverse action claims have two things 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 (2013). Assuming that the
jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of4
these two things is sufficient to establish Board jurisdiction. Id. Notwithstanding
the broad similarity among all constructive adverse actions, proof of these
elements may be established in different ways, depending on the type of case at
issue. See id., ¶¶ 9-10.
¶8As the appellant correctly argues on review, chapter 75 jurisdiction may be
established over a disability retirement if the agency unjustifiably refused to offer
the employee a reasonable accommodation that would have allowed her to
continue working. PFR File, Tab 1 at 9-10; see SanSoucie v. Department of
Agriculture, 116 M.S.P.R. 149, ¶ 15 (2011); Nordhoff v. Department of the Navy ,
78 M.S.P.R. 88, 91 (1998), aff’d, 185 F.3d 886 (Fed. Cir. 1999) (Table).
However, we disagree that the analysis in this appeal should be restricted to that
applicable in disability retirement situations because the appellant did not, in fact,
retire on disability. She resigned. IAF, Tab 5 at 23. We note that we use the
term “restricted” because that is just what the Nordhoff line of cases does; it
restricts chapter 75 jurisdiction over disability retirements to situations in which
reasonable accommodation was available. Okleson v. U.S. Postal Service ,
90 M.S.P.R. 415, ¶ 7 (2001). Thus, even if we were to apply this standard to the
appellant’s case, it would not inure to her benefit. Nevertheless, we understand
the appellant’s broader point that the administrative judge failed to make a
sufficient analysis of her claim that her resignation was coerced by the agency’s
unjustified failure to accommodate her disability. PFR File, Tab 1 at 10-16. We
address the appellant’s claim under the jurisdictional standard for constructive
adverse actions in general as set forth in Bean, 120 M.S.P.R. 397, ¶ 8.
¶9Having thoroughly reviewed the record in this appeal, including the initial
decision, the hearing recording, and the parties’ documentary submissions, we
recognize that there were multiple factors at play in the appellant’s February 27,
2017 resignation. Underlying everything were the appellant’s extant medical
condition of sleep apnea and her personal responsibilities of caring for her
grandchildren and her sick husband. IAF, Tab 14 at 41, Tab 30 at 8.5
Compounding these difficulties was the appellant’s return to the swing shift on
December 25, 2016. IAF, Tab 30 at 8, 10; HR at 26:00 (testimony of the
appellant). To deal with these difficulties, the appellant sought three distinct
benefits from the agency: (1) Reasonable accommodation in the form of a return
to the day shift, (2) FMLA leave to care for her husband, and (3) participation in
the agency’s VLTP to offset the financial difficulties that set in once her paid
leave was used up. IAF, Tab 8 at 29, Tab 12 at 5, Tab 30 at 7. However, at the
time of her resignation, the appellant had been unable to secure any of these
benefits to her satisfaction.
¶10Regarding the FMLA leave, the appellant had been working with the same
human resources Field Advisor on FMLA matters related to her husband’s
medical condition since at least May of 2016. IAF, Tab 30 at 16. On
December 2, 2016, after the appellant learned that she was being moved back to
the swing shift, she sent an email to the Field Advisor, with copies to her first-
and second-line supervisors, explaining the situation and stating that they would
need to touch base again about her FMLA. IAF, Tab 30 at 8.
On December 7, 2016, the appellant’s first-line supervisor informed her that the
Field Advisor was in the process of determining how much FMLA leave the
appellant had used to date. Id. at 7. Subsequently, the appellant began using
significant amounts of FMLA leave. IAF, Tab 8 at 36; HR, Track 1 at 26:10
(testimony of the appellant). On January 31, 2017, the appellant’s first-line
supervisor informed her that she would need to submit updated medical
documentation for her husband to support continued FMLA status. IAF, Tab 8
at 68. On February 1, 2017, the appellant forwarded the Field Advisor the
updated documentation. Id. at 67. Then, on February 13, 2017, the Field Advisor
informed the appellant that she had reviewed the documentation, and although it
was “difficult to determine what [was] being considered,” there was enough
information to approve FMLA up to March 6, 2017. Id. at 75. The Field Advisor
posited that this would give the appellant some time to offer “more succinct6
information” because the appellant’s husband would have had additional
diagnostic procedures and another doctor’s visit during that time. Id. She
notified the appellant that, if she were unable to submit updated documentation
by March 6, 2017, her FMLA enrollment would expire. Id. Nevertheless, there is
no indication that the agency ever denied the appellant any requested leave under
the FMLA or otherwise prior to her resignation.
¶11Regarding the VLTP, the appellant first notified the agency on
January 11, 2017, that she was seeking to participate in the program, and that
same day, the Field Advisor sent the appellant some information on the program
and how to apply. IAF, Tab 8 at 29. It appears that the appellant first provided
the requested information on February 1, 2017, in conjunction with the FMLA
documentation discussed in the preceding paragraph.3 IAF, Tab 16 at 22, Tab 30
at 67. The appellant resubmitted the information on February 9, 2017, and
requested a status update. IAF, Tab 8 at 67, 70. The following day, the
appellant’s first-line supervisor informed her that the Field Advisor would need to
approve her VLTP eligibility before management could sign the paperwork and
the process could move forward. Id. at 72. Then, on February 13, 2017, the Field
Advisor informed the appellant that her VLTP request could not be approved
without further medical documentation specifying the nature of the medical
emergency, the appellant’s role in her husband’s recovery, and the expected
duration of the emergency. Id. at 74. The agency never affirmatively denied the
appellant’s request, but the appellant seems to have stopped making efforts
toward it after this date.
¶12Regarding reasonable accommodation, the record shows that the appellant
first informed the agency that she would likely be seeking reasonable
accommodation on December 2, 2016, although she did not specify the medical
condition at issue or what accommodation she might be seeking. IAF, Tab 30
3 The appellant relied on the same medical documentation to support her VLTP request
and her FMLA request. IAF, Tab 8 at 67-68; HT, Track 4 at 8:45 (testimony of the
appellant).7
at 8. By December 8, 2016, the appellant became aware that the Disability
Program Manager with DISA’s Office of Equality, Diversity, and Inclusion
(OEDI) was the appropriate point of contact for her reasonable accommodation
request. IAF, Tab 16 at 5, Tab 30 at 7. The appellant submitted her request on
December 12, 2016, including a note from her doctor stating that the appellant
suffered from sleep apnea, which interfered with her ability to sleep and resulted
in excessive tiredness at work and a danger in driving. IAF, Tab 12 at 5, Tab 14
at 40-42. The appellant’s doctor recommended that, as an accommodation, the
appellant should be allowed to work the day shift. IAF, Tab 14 at 41-42.
Also attached was a release form for Federal Occupational Health (FOH)
physicians to be able to discuss the appellant’s medical condition with her doctor.
Id. at 40. On December 16, 2016, the Disability Program Manager contacted the
appellant’s first-line supervisor to discuss her accommodation request.
IAF, Tab 31 at 4-5. On Monday, December 19, 2016, the appellant’s second-line
supervisor informed her that management was supposed to have an update on her
request status by the end of the week, and on Thursday, December 22, 2016, the
Disability Program Manager informed the appellant that she had met with the
first- and second-line supervisors, and that either she or management would
provide the appellant with an update soon. Id. at 4.
¶13It appears that nothing happened until January 6, 2017, when the Disability
Program Manager sent an email to the appellant’s first- and second-line
supervisors, reminding them of the appellant’s situation and of their obligation to
participate in the interactive process. IAF, Tab 8 at 28. Management failed to
respond, and on January 13, 2017, the Disability Program Manager emailed the
appellant’s first- and second-line supervisors again, reminding them that the
reasonable accommodation process is time-sensitive and that they should make
every effort to work with the appellant to reach a resolution as quickly as
possible. Id. at 32. That same day, the appellant sent her first- and second-line
supervisors an email requesting a meeting. Id. at 30. The appellant’s first -line8
supervisor responded, informing the appellant that she was still awaiting OEDI’s
official decision on the appellant’s request for reasonable accommodation. Id.
at 34. The supervisor mentioned two potential day shift positions, which they had
apparently discussed before, and she set up a meeting for the following week. Id.
¶14The appellant met with her first- and second-line supervisors on
January 17, 2017. IAF, Tab 10 at 8; HR, Track 1 at 31:20 (testimony of the
appellant). They expressed to her that there were, indeed, two day shift positions
that she might move into, but that they were still awaiting a final decision from
OEDI as to whether the appellant satisfied the requirements for receiving a
reasonable accommodation. IAF, Tab 10 at 8. On January 25, 2017, the
appellant and her attorney met with the Disability Program Manager and another
OEDI official, who apparently offered the appellant one of the two day shift
positions, which the appellant agreed to accept, pending a written job description,
including salary and duty hours. IAF, Tab 8 at 36. The following day, the
Disability Program Manger apprised the appellant’s first- and second-line
supervisors of the meeting and notified them of the appellant’s tentative
acceptance of one of the day shift positions. Id. at 5. She also noted that there
was an outstanding medical question regarding the safety of the appellant’s
driving. Id. The appellant’s first-line supervisor responded, asking why the
agency would be willing to accommodate the appellant in light of her FMLA
leave usage, especially on the weekends, and the difficulty of fully staffing a 24/7
office under those circumstances. Id. at 4-5. She questioned whether it might be
more appropriate to find the appellant a position in another office that might be
better able to accommodate her needs. Id. at 5. She did agree, however, that the
agency should engage FOH to determine why it was safe for the appellant to drive
to and from the day shift, but not to and from other shifts. Id. at 5.
The Disability Program Manager responded, informing the first-line supervisor
that an employee is entitled to use FMLA and reasonable accommodation
simultaneously, and that reasonable accommodation cannot be denied on the basis9
that the employee has been approved for FMLA. Id. at 4. She stated that the
appellant’s use of leave on weekends was a separate issue from reasonable
accommodation. Id.
¶15On January 27, 2017, the appellant’s attorney emailed the Disability
Program Manager, asking for the written information on the day shift positions.
Id. at 42. On January 30, 2017, the Disability Program Manager inquired of
management whether they had forwarded this information to the appellant.
IAF, Tab 27 at 37. The appellant’s first-line supervisor responded, stating that
she was “not comfortable” providing the appellant position descriptions to choose
from for the same reasons she stated previously, and again suggested that OEDI
should broaden its search to find another position in another office that would be
a better fit. Id. She also expressed that there was still an outstanding question
about the safety of the appellant’s driving, and that, at a more basic level,
she would want to have a clearer understanding of the nature, duration, and
severity of the appellant’s sleep apnea, as well as an explanation of the activities
that it affects. Id.
¶16On February 1, 2017, the appellant’s attorney again asked the Disability
Program Manager for the details of the two day shift positions. IAF, Tab 8 at 49.
On February 3, 2017, the Disability Program Manager sent the appellant’s
first-line supervisor a lengthy email, stating that the agency could only engage
FOH if the appellant signed a waiver,4 advising that the agency had the
opportunity of offering the appellant a temporary accommodation, apparently
disagreeing that the appellant had not provided medical documentation sufficient
to satisfy the first-line supervisor’s concerns, stating that the appellant was
entitled to receive information about the positions being offered or considered as
accommodations, and stating that, although management could search outside the
appellant’s office for an accommodation position, the appellant’s weekend leave
4 The Disability Program Manager apparently overlooked the FOH waiver that the
appellant had already executed in December. IAF, Tab 8 at 40.10
was not related to her disability and was therefore not a reasonable
accommodation matter. IAF, Tab 124 at 5-6.
¶17Having received no response thus far, on February 9, 2017, the appellant’s
attorney sent the agency a final email requesting further written information about
the two day shift positions. IAF, Tab 8 at 58. The following day,
February 10, 2017, the appellant’s first-line supervisor sent the appellant an
email, informing her that she must provide medical documentation in response to
twelve specific questions because the medical documentation that she submitted
on December 12, 2016, was insufficient to determine whether she was a qualified
person with a disability, what job functions were impaired, and how her “alleged”
sleep apnea affects her differently during the day than at night. Id. at 2-3.
She offered the appellant a temporary accommodation of a 2-hour earlier start to
her swing shift, which the appellant accepted, but the appellant resigned without
providing the additional requested medical documentation. IAF, Tab 8 at 3,
Tab 17 at 29.
¶18Combined with the underlying stressors related to her personal health, her
husband’s health, her familial responsibilities, and her return to the swing shift,
we find that the appellant was under significant pressure in February 2017,
related to her requests for benefits under the FMLA, VLTP, and Americans with
Disabilities Act (ADA). Although the pressure had been building for some time,
it appears to have come to a head on February 10 and 13, 2017, when the agency
informed her that her documentation on record was insufficient to support any of
her requests. Considering the facts as set forth above, we find that some of this
was due to the agency’s wrongdoing, and some of it was not. The difficulties
inherent in the appellant’s caregiving responsibilities were not due to the
wrongdoing of the agency. Nor is there any reason to believe that the agency’s
decision in late 2016 to return the appellant to the swing shift was improper.5
5 Although it appears that the agency may have placed the appellant on the day shift in
May 2016 to accommodate her caregiving situation, HR at 6:20 (testimony of the
appellant), neither the FMLA nor the ADA would have required it to do so. The FMLA11
¶19As for the appellant’s request under the FMLA, we find no wrongful agency
action here either. There is no record of the agency requesting updated medical
documentation between May 2016 and January 31, 2017, and there was nothing
improper about the agency requiring updated medical documentation at that point.
In fact, the law specifically authorizes the agency to request updated
documentation every 30 days. 5 C.F.R. § 630.1208(a), (j). There is no reason to
believe that the agency was attempting to harass the appellant or was otherwise
acting in bad faith by requiring her to update her information more than 7 months
after FMLA leave had been initially approved. Nor is there any evidence that
would support a finding that the appellant’s February 1, 2017 medical
documentation was sufficient to meet the medical certification requirements of
5 C.F.R. § 630.1208(b), or that the Field Advisor was incorrect that additional
information was required.6 We further find that, although nearly 2 weeks had
elapsed between the appellant’s submission of FMLA documentation on
February 1, 2017, and the February 13, 2017 notification that the documentation
was deficient, the delay was not excessive, the appellant was not prejudiced by it,
and the agency showed good faith in allowing her an additional 15 business days
to submit further documentation. IAF, Tab 8 at 75.
¶20Likewise, with the appellant’s request under the VLTP, there is no evidence
to support a finding that the documentation that she submitted with her
February 1, 2017 application was sufficient. Neither the documentation itself nor
the agency’s requirements appear to be contained in the record. See 5 C.F.R.
§ 630.904(b) (setting forth the requirements for a VLTP leave recipient’s
application, and allowing employing agencies to set forth additional
pertains to leave, and not to schedule adjustments, see 5 U.S.C. § 5382; 5 C.F.R.
§ 630.1203, and the ADA does not prescribe accommodations for employees in their
capacity as caregivers, see Jordan v. Department of Defense , EEOC Appeal
No. 0120055250, 2006 WL 3877372, at *6 (Dec. 28, 2006).
6 The medical documentation that the appellant submitted on February 1, 2017, does not
appear to be contained in the voluminous record in this appeal, and if it does, the parties
have not identified its location.12
requirements). Again, as with the FMLA matter discussed above, we find that
2 weeks was not an excessive amount of time for the agency to make a
determination and to notify the appellant that additional information was
required. IAF, Tab 8 at 74. It appears that the Field Advisor carefully reviewed
and considered the appellant’s application and tried to advise her on what further
information she needed to submit. We see no negligence, bad faith, or other
malfeasance in the agency’s handling of the appellant’s VLTP request.
¶21The appellant’s reasonable accommodation request, however, is a different
matter. Although the appellant submitted her reasonable accommodation request
on December 12, 2016, for more than a month, nothing whatsoever happened
except for internal discussions between management and OEDI, and empty
promises from the agency that the appellant would have an answer soon.
IAF, Tab 8 at 28, 32; Tab 31 at 4-5. It appears that the appellant’s case was stuck
in limbo because OEDI and management were both waiting for the other to do
something before they proceeded. IAF, Tab 8 at 28, 32, 34. The first time the
appellant’s supervisors actually met with her was January 17, 2017, when they
informed the appellant that management was waiting on OEDI to render an
official decision on the appellant’s qualification for accommodations.
IAF, Tab 10 at 8. What happened next was that OEDI offered the appellant one
of two day shift positions (an offer that it was apparently not authorized to make),
followed by more agency infighting about the proper course of action.
IAF, Tab 8 at 4-5, 36, 42, 46, Tab 27 at 37, Tab 124 at 5-6; HR, Track 7 at 10:30
(testimony of the appellant’s first-line supervisor). While this was going on for
2 weeks, the appellant was shut out of the process completely, believing the entire
time that the only thing left to resolve was the position description, but that
management was stonewalling her on this relatively simple matter. IAF, Tab 8 at
42, 49, 58. Then, it would appear that the disagreements between the appellant’s
first-line supervisor and the Disability Program Manager resulted in a fracture,
whereupon the first-line supervisor took matters into her own hands and notified13
the appellant for the first time that the medical documentation that she submitted
2 months prior was deficient. IAF, Tab 8 at 2-3. Whoever was right about the
whole thing, the first-line supervisor or the Disability Program Manager, it
matters not. Either way, the agency bungled this badly. It spent almost the entire
time occupied with internal miscommunications and interoffice disputes, cutting
the appellant out of this supposed “interactive process” as much as possible, until
nearly 2 months after she started, she found herself nearly back to square one.7
We find that the agency’s handling of this matter was improper.
¶22Considering all of the evidence together, we find that the appellant’s
resignation was precipitated by several factors, some of which were the result of
wrongful agency actions and some of which were not. Cf. Bean, 120 M.S.P.R.
397, ¶ 8. Nevertheless, in the final analysis, we agree with the administrative
judge that this case turns on the voluntariness element, i.e., whether the appellant
had a meaningful choice in her resignation. ID at 12-13. We further agree with
the administrative judge that the appellant failed to establish this element.
ID at 12-13.
¶23We acknowledge that the agency’s mishandling of the appellant’s
reasonable accommodation request must have been very frustrating and caused
her a great deal of distress and trouble. However, we do not find that this matter
would have been sufficient to compel a reasonable person to resign her position at
the time the appellant did. See Gregory v. Federal Communications Commission ,
79 M.S.P.R. 563, ¶ 8 (1998) (finding that the ultimate question on voluntariness
is whether a reasonable person would have felt compelled to resign under the
circumstances). This is especially so considering that the appellant’s supervisor
was finally beginning to engage with her in the interactive process in a
meaningful way, to include the offer of a temporary, partial accommodation, as
7 Although there are exceptions, the reasonable accommodation process at DISA
typically takes less than 30 days, consistent with the written requirements of DISA’s
reasonable accommodation procedures. IAF, Tab 44 at 9; HR, Track 5 at 58:35
(testimony of the Disability Program Manager). 14
well as specific instructions on the type of medical documentation that she needed
to submit. IAF, Tab 8 at 2-3. As for the FMLA and VLTP matters, as explained
above, we find that the agency did not mishandle them in any way.
Supra ¶¶ 19-20. Although it must have been disappointing for the appellant to
have submitted paperwork, only to be told 2 weeks later that it was deficient, we
find that this situation is not beyond the realm of expectation and would not have
contributed significantly to a reasonable person’s resignation.
¶24Apart from these matters, as the administrative judge noted, the appellant
testified repeatedly that she resigned because she was “scared” and that she
believed she was being set up to be fired. ID at 9 & n.13; HR, Track 1; at 57:00,
Track 3 at 9:45 (testimony of the appellant). She was also laboring under the
mistaken belief, through no fault of the agency, that she was an “at will”
employee, i.e., an employee who can be fired without cause. HR, Track 1
at 1:00:40, Track 4 at 29:40 (testimony of the appellant). Based on the
appellant’s testimony, this factor appears to have played a major, if not the
decisive, role in her resignation. In fact, the appellant testified that she could
have continued working the swing shift at the agency but for the fact that she was
about to get fired. HR, Track 2 at 1:06:30 (testimony of the appellant). We find
that this fear would not have motivated a reasonable person to resign because
there is no evidence that the agency either threatened or proposed any
disciplinary action against the appellant. She has simply identified no basis for
her belief that management was getting ready to fire her. To the extent that the
appellant’s belief that she was an at will employee played into her fears, we find
that this was unreasonable as well because the appellant’s employment was
governed by Federal law, not State law, and she could only have been removed
from her position for cause, with 30 days’ advance written notice and an
opportunity to respond.8 See 5 U.S.C. § 7513(a)-(b). In addition, as the
8 Even if the appellant were facing removal, her decision to resign rather than oppose
the adverse action would still be voluntary. See Baldwin v. Department of Veterans
Affairs, 109 M.S.P.R. 392, ¶ 12 (2008).15
administrative judge accurately noted, on February 11, 2017, the appellant sent an
email to her first-line supervisor strongly suggesting that her forthcoming
resignation was more about work-life balance than any of the matters discussed
above. IAF, Tab 65 at 19. The appellant does not dispute this finding on review.
¶25Considering the record as a whole, we find that, although the appellant’s
resignation was precipitated in part by the agency’s wrongful actions in
connection with her reasonable accommodation request, the combined
circumstances were not of the nature and severity that would have made a
reasonable person in the appellant’s situation believe that she had no realistic
alternative but to resign. Although a reasonable person might have felt that
resignation was her best option, she would not have felt that it was her only
option. See Lawson v. U.S. Postal Service , 68 M.S.P.R. 345, 350 (1995)
(finding that the fact that an employee is faced with an inherently unpleasant
situation or that her choices are limited to unpleasant alternatives does not make
her decision involuntary). We therefore find that the appellant’s resignation was
not involuntary and that she has not established jurisdiction over her resignation
as a constructive removal under 5 U.S.C. chapter 75.9
NOTICE OF APPEAL RIGHTS10
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
9 Because the appellant raised a claim of disability discrimination in this constructive
removal 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).
10 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
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 at17
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,18
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.11 The court of appeals must receive your petition for
11 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. 115-195,19
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. 20
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.21 | Kendall_Joanne_M_AT-0752-18-0127-I-1__Final_Order.pdf | 2024-05-01 | JOANNE KENDALL v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-18-0127-I-1, May 1, 2024 | AT-0752-18-0127-I-1 | NP |
1,580 | https://www.mspb.gov/decisions/nonprecedential/Goodman_Pierson_B_DC-3330-21-0318-M-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PIERSON B. GOODMAN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-3330-21-0318-M-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debra D’Agostino , Esquire, Washington, D.C., for the appellant.
Sara K. Achinger , Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the remand initial decision,
which dismissed his Veterans Employment Opportunities Act of 1998 (VEOA)
appeal as moot. 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. However, for the reasons set forth
below, we VACATE the remand initial decision and DENY the appellant’s
request for corrective action.
BACKGROUND
On March 25, 2021, the appellant filed an appeal with the Board alleging
that the agency violated his veterans’ preference rights pursuant to VEOA when it
denied him the opportunity to compete for a vacancy open between November 19
and December 7, 2020, for which he had applied2 despite his entitlement to
consideration based on his status as a preference eligible veteran. Goodman v.
Department of Defense , MSPB Docket No. DC-3330-21-0318-I-1, Initial Appeal
File (IAF), Tab 1 at 6, 9-10. Specifically, he asserted that the Department of
Defense improperly found him ineligible for the position because it erroneously
concluded that he failed to provide the requested documentation confirming his
veterans’ preference status. Id. at 6. He also indicated in his initial appeal that
he exhausted these claims with the Department of Labor (DOL), and he included
with his appeal a closing letter wherein DOL determined that he failed to show
that his veterans’ preference rights were violated. Id. at 6, 9-13, 34-35.
2 The vacancy announcement for which the appellant applied was OS-DTRA-21-
10969099-MP, a United Kingdom Combatant Command Representative position at the
GS-0301-14 and GS-0301-15 levels. IAF, Tab 4 at 8, Tab 6 at 21-29. 2
While the appellant’s initial appeal was pending with the administrative
judge, the agency voluntarily rescinded its job offer to the selectee and requested
that the entire vacancy announcement and selection process be reconstructed.
IAF, Tab 6 at 32. After reconvening the original hiring panel to rate all the
applicants on the new certificate of eligible applicants, which included the
appellant, the agency did not select the appellant for the position. Id. at 36. In a
pleading before the Board, the agency asserted that these actions divested the
Board of its jurisdiction over the appeal. Id. at 9.
Without providing the appellant with an opportunity to respond, the
administrative judge issued an initial decision finding that, because the agency
reconstructed the selection process and included the appellant on the certificate of
eligible applicants, it afforded him the appropriate remedy for a violation of his
veterans’ preference rights—the right to compete for the position. IAF, Tab 7,
Initial Decision (ID) at 5-7. Accordingly, she dismissed the appeal for lack of
jurisdiction. ID at 7. Thereafter, the appellant appealed the initial decision to the
U.S. Court of Appeals for the Federal Circuit. In an unopposed motion, the
Board requested that the Federal Circuit remand the matter so that the appellant
could respond to the agency’s argument and evidence regarding the reconstructed
selection process. Goodman v. Department of Defense , MSPB Docket No. DC-
3330-21-0318-L-1, Litigation File (LF), Tab 8. The court granted the motion and
remanded the appeal to the Board to allow the appellant to address the evidence
concerning the reconstructed selection process. LF, Tab 9.
Following remand to the Board, the administrative judge provided the
parties with an opportunity to address the reconstructed selection process and,
without holding a hearing, issued a remand initial decision on June 22, 2022,
dismissing the appeal as moot.3 Goodman v. Department of Defense , MSPB
Docket No. DC-3330-21-0318-M-1, Remand File (RF), Tab 14, Remand Initial
3 The administrative judge who issued the remand initial decision was not the same
administrative judge who had previously handled the appeal. RF, Tab 9. 3
Decision (RID). In the remand initial decision, the administrative judge found
that the appellant’s arguments regarding the insufficiency of the reconstructed
selection process were without merit, and specifically, that the agency’s failure to
conduct new interviews “did not violate the appellant’s right to compete.” RID
at 4-5. Thus, she concluded that the appellant could not show that the agency
failed to correct its prior VEOA violation because the agency had considered the
appellant for the position at issue in its reconstructed selection process.4 RID
at 6. Finally, she found that the appellant failed to prove that he was entitled to
an award of monetary or liquidated damages because he did not prove that he was
entitled to the position. RID at 3-4, 6.
The appellant has filed a petition for review of the remand initial decision,
arguing, among other things, that the reconstruction process was insufficient, and
that the agency’s failure to conduct interviews was not in line with the Board’s
decision in Schultz v. Department of Veterans Affairs , 2022 MSPB 23. Petition
for Review (PFR) File, Tab 3 at 13-16. In response, the agency argues that, in
accordance with Oram v. Department of the Navy , 2022 MSPB 30, the appellant
was not entitled to corrective action under 5 U.S.C. § 3304(f) as a matter of law
because he was a civilian Federal employee in the competitive service at the time
he applied for the vacancy. PFR File, Tab 5 at 4-5. The appellant did not reply
to the agency’s response.
4 Although the administrative judge refers to the agency’s “previous VEOA violation”
in her remand initial decision, RID at 6, neither DOL, nor the Board, nor the Federal
Circuit issued a finding that the agency violated the appellant’s veterans’ preference
rights. IAF, Tab 1 at 34-35, Tab 7; LF, Tab 9. However, because the agency rescinded
its offer and reconstructed the selection process, it appears that the administrative judge
assumed that there had been a VEOA violation. Because this assumption does not
impact the outcome of this matter, we do not address it. See 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).4
DISCUSSION OF ARGUMENTS ON REVIEW
Section 3304(f)(1) of Title 5 of the U.S. Code expressly provides
preference eligibles with a right to compete for vacant positions when the agency
issuing the vacancy announcement indicates that it will accept applications from
outside its own workforce. Harellson v. U.S. Postal Service , 113 M.S.P.R. 534,
¶ 8 (2010). However, in Oram, 2022 MSPB 30, ¶ 17, the Board found that, as a
matter of law, individuals who are already Federal employees are not entitled to
corrective action based on a claim of denial of an opportunity to compete under
5 U.S.C. § 3304(f).
In reaching that result, the Board relied on the decision of the Federal
Circuit in Kerner v. Department of the Interior , 778 F.3d 1336, 1338-39 (Fed.
Cir. 2015). There, the court found that, because the appellant was already
employed in the Federal civil service, 5 U.S.C. § 3304(f)(1) was inapplicable in
his case. After reviewing the text and legislative history of VEOA and its
precursor, the Veterans’ Preference Act, the Federal Circuit concluded that
nothing in the statutory language, the legislative history, or case law supports a
presumption that the “opportunity to compete” provisions in section 3304 apply
in instances in which an applicant already was employed by the Federal civil
service, but rather that the intent of those provisions was to assist veterans in
obtaining an initial appointment to the Federal service—not subsequent
promotions or other intra-agency movement. Kerner, 778 F.3d at 1338. The
court further reasoned that, because veterans currently employed in a
competitive-service position are already “eligible to apply” to merit promotion
vacancies, such applicants could not have been the intended beneficiaries of
section 3304(f). Id.
Here, it appears that the appellant was a Federal employee at the time that
he applied for the position at issue. First, according to the appellant’s Certificate
of Release or Discharge From Active Duty, he was discharged on February 1,
2015. IAF, Tab 1 at 21. Then, as part of the appellant’s February 8, 2021 DOL5
complaint, he attached a Standard Form 50 “reflecting his current position” as a
Supervisory Intelligence Specialist with the Department of the Army, with a pay
grade of GG-14. Id. at 9-10, 23. Furthermore, the appellant, who is represented
by counsel, did not respond to the agency’s assertions that he was already a
Federal employee in the competitive service at the time he applied, PFR File,
Tab 5, even though the Board’s regulations allowed him an opportunity to reply,5
5 C.F.R. § 1201.114(a)(4).
Accordingly, we conclude that, at the time the appellant applied for the
position at issue in this appeal, he was a Federal employee in the civil service.
Therefore, he cannot prevail as a matter of law on his argument that he was
denied the opportunity to compete under 5 U.S.C. § 3304(f). See Oram,
2022 MSPB 30, ¶ 17. For this reason, we need not address the appellant’s
arguments below and on review regarding the sufficiency of the reconstructed
selection process. Furthermore, we vacate the remand initial decision dismissing
this appeal as moot, and deny the appellant’s request for corrective action,
finding that he cannot prevail as a matter of law.
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
5 The appellant was notified of his right to reply to the agency’s response to his petition
for review in the acknowledgment letter issued by the Office of the Clerk of the Board.
PFR File, Tab 4 at 1.
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.6
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. The7
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 file8
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.7 The court of appeals must receive your petition for
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. 9
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. 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 | Goodman_Pierson_B_DC-3330-21-0318-M-1__Final_Order.pdf | 2024-05-01 | PIERSON B. GOODMAN v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3330-21-0318-M-1, May 1, 2024 | DC-3330-21-0318-M-1 | NP |
1,581 | https://www.mspb.gov/decisions/nonprecedential/Price_Roscoe_H_DC-1221-22-0443-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSCOE HOWARD PRICE, III,
Appellant,
v.
DEPARTMENT OF EDUCATION,
Agency.DOCKET NUMBER
DC-1221-22-0443-W-1
DATE: May 1, 2024
THIS ORDER IS NONPRECEDENTIAL1
Roscoe Howard Price, III , Prince Frederick, Maryland, pro se.
Jill Siegelbaum and Kristina Lozupone , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND 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. For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the initial decision, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
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).
2
BACKGROUND
The appellant, a GS-15 Contract Specialist, filed this IRA appeal pro se,
wherein he alleged that the agency subjected him to various personnel actions in
retaliation for his protected whistleblowing. Initial Appeal File (IAF), Tab 1.
Pursuant to the administrative judge’s acknowledgment order, the parties timely
initiated discovery. IAF, Tab 5 at 2-3, Tab 20 at 2. The appellant timely served
the agency with requests for production of documents. IAF, Tab 30 at 8-10.
Specifically, the appellant sought email communications and many of his requests
contained a date range, keywords, and requested custodians. Id. The agency
responded with objections and nothing else. Id. at 12-16.
On July 22, 2022, the appellant filed three motions requesting that the
administrative judge compel the agency to respond to his discovery requests.
IAF, Tabs 26-28. The administrative judge summarily denied the motions
because the appellant did not include a statement regarding his efforts to meet and
confer with the agency to narrow the areas of disagreement pursuant to 5 C.F.R.
§ 1201.73(c). IAF, Tab 29 at 1. The appellant subsequently filed another motion
to compel, wherein he asserted that he had attempted to resolve the dispute with
the agency prior to filing his motion. IAF, Tab 30 at 5. The agency filed a
response and, in relevant part, asserted that it was “willing to engage in
discussions to resolve the dispute, possibly even agree to narrowing some of [the
appellant’s] requests.” IAF, Tab 32 at 5-6. Attached to the agency’s filing were
several emails between the parties discussing the relevant requests. Id. at 25-40.
On July 27, 2022, the same day the agency filed its response to the
appellant’s motion to compel, counsel for the appellant entered an appearance.
IAF, Tab 33. The following day, on July 28, 2022, the administrative judge
issued an order denying without prejudice the appellant’s motion to compel.
IAF, Tab 34. He noted the agency’s assertion that it remained willing to discuss
the discovery requests and stated that, “[b]ased on the appearance of counsel, I
conclude that the more appropriate approach is to deny the present motion to
3
compel without prejudice so that counsel for both parties can meet and confer and
evaluate whether they can resolve any of the discovery disputes.” Id. at 1.
The order did not contain a deadline for the parties to meet and confer; however,
a prior order stated that all discovery-related motions must be filed by August 19,
2022, the same day that discovery was scheduled to close. IAF, Tab 20 at 2.
On August 17, 2022, counsel for the appellant emailed agency counsel to
meet and confer about the relevant discovery requests.2 IAF, Tab 36 at 16 -19.
The agency responded that it had not provided any documents that were
responsive to the relevant discovery requests because it objected, for many
reasons, to each request and, because discovery was set to close on August 19, it
would not complete a search for documents even if the appellant agreed to narrow
the requests. Id. at 15-16. The agency also objected to the appellant’s request to
extend the discovery deadline. Id. at 13.
On August 19, 2022, counsel for the appellant filed another motion to
compel regarding the requests for production of documents. Id. at 4-10. The
agency filed a response in opposition. IAF, Tab 37. The administrative judge
denied the appellant’s motion to compel, finding that the appellant had failed to
meet and confer with the agency in good faith. IAF, Tab 38 at 1-2. He found that
the appellant’s counsel should have acted sooner to contact the agency about the
outstanding discovery dispute following the July 28 order given the August 19
discovery deadline. Id. at 2.
The appellant did not request a hearing and the appeal was decided on the
written record. IAF, Tab 56, Initial Decision (ID). In the initial decision, the
administrative judge found that the appellant proved some, but not all, of his
alleged protected disclosures and that he engaged in protected activity.
ID at 10-11, 17-19, 21-24. He found that the appellant proved contributing factor
for some personnel actions, but that the agency proved, by clear and convincing
2 Prior to August 17, 2022, counsel for both parties discussed other matters, including
the appellant’s responses to the agency’s discovery requests. IAF, Tab 37 at 25-30.
4
evidence, that it would have taken the same actions in the absence of any
protected whistleblowing. ID at 11-31. Accordingly, he denied corrective action.
ID at 31. The appellant has filed a petition for review, the agency has filed
a response, and the appellant has filed a reply. Petition for Review File,
Tabs 1, 4, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
Although an administrative judge has wide discretion to control the
processing of appeals, such discretion is not unfettered. See Sanders v. Social
Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010). The Board will not find
reversible error in an administrative judge’s discovery rulings absent an abuse of
discretion that prejudiced the appellant’s substantive rights. See White v.
Government Printing Office , 108 M.S.P.R. 355, ¶ 9 (2008). As set forth herein,
we find that the administrative judge abused his discretion in denying the
appellant’s motion to compel the agency to respond to his discovery requests.
The administrative judge denied the appellant’s motion to compel based on
his finding that the appellant failed to meet and confer with the agency to resolve
the dispute in good faith. IAF, Tab 38 at 1-2. We disagree. The Board’s
regulations require that, before filing a motion to compel, the moving party must
“discuss the anticipated motion with the opposing party or nonparty, and all those
involved shall make a good faith effort to resolve the discovery dispute and
narrow the areas of disagreement.” 5 C.F.R. § 1201.73(c)(1). By the time the
appellant filed his final motion to compel on August 19, 2022, the parties had
exchanged more than a dozen emails about the relevant requests, between July 22
and August 19, 2022. IAF, Tab 32 at 25-56, Tab 36 at 12-19. The appellant
rescinded some requests that the agency objected to, explained why he believed
the remaining requests were relevant, and suggested ways in which the
information could be obtained. IAF, Tab 32 at 25-56. By the time appellant’s
counsel contacted the agency on August 17, 2022, the agency was well-aware of
5
its discovery obligations and, to that point, had not provided any responsive
materials. The July 28, 2022 order did not contain a deadline for the parties to
meet and confer; however, the appellant complied with the August 19, 2022
deadline for discovery-related motions. IAF, Tab 20 at 2. Accordingly, we find
that the appellant met his obligation to meet and confer pursuant to the relevant
orders and regulations.
We find that the appellant was prejudiced by the administrative judge’s
denial of his motion to compel because he was unable to obtain discovery
relevant to his burdens of proof. In the initial decision, the administrative judge
found that the appellant failed to prove that he made several protected disclosures
and, for the disclosures, activity, and personnel actions that were proven, that the
agency proved by clear and convincing evidence that it would have taken the
same actions absent the appellant’s protected whistleblowing. ID at 11-31. The
information sought by the appellant related to the alleged disclosures and
personnel actions is discoverable. See Ryan v. Department of the Air Force ,
113 M.S.P.R. 27, ¶ 16 (2009) (finding an administrative judge abused his
discretion in denying a motion to compel that sought information relating to the
appellant’s burden of proof in an IRA appeal). The administrative judge’s
finding that the appellant failed to establish certain elements of his claim, while
simultaneously denying his ability to obtain relevant, discoverable information,
warrants remand. See Gregory v. Federal Communications Commission ,
79 M.S.P.R. 563, ¶ 15 (1998) (“[I]t is patently unfair for the administrative judge
to exclude witnesses whom the appellant indicated could support her claims . . .
and then find that she failed to [meet her burden].”).
On remand, the administrative judge shall give both parties an opportunity
to address the relevance of the appellant’s discovery requests that were the
subject of his motion to compel. In their responses, the parties should focus on
the extent to which each of the appellant’s requests is reasonably calculated to
lead to the discovery of admissible evidence in light of the factual matters in
6
dispute in this appeal. To the extent the agency believes that a request is
overbroad, it should comply with the request to the maximum extent possible and
explain why it should not be required to respond more fully. See Ryan,
113 M.S.P.R. 27, ¶¶ 17, 19. The administrative judge shall then determine
whether the agency has properly responded to each of the appellant’s discovery
requests.
There appears to be a dispute regarding the appellant’s August 18, 2022
amended discovery request, IAF, Tab 36 at 15, 20, which the agency asserts is not
an amended request but, rather, a new request that is untimely,
IAF, Tab 37 at 10-11. The administrative judge shall determine whether the
agency must respond to the August 18, 2022 request.
After completion of discovery on remand, the administrative judge shall
afford the appellant an opportunity to submit newly discovered evidence into the
record and shall set a schedule for supplemental briefing. The administrative
judge shall issue a new initial decision that incorporates any new evidence
submitted on remand.3
3 In the initial decision, the administrative judge found that, even if the appellant proved
that he was subjected to certain personnel actions, he would find that they were barred
by the doctrine of laches. ID at 13 n.7 & 14 n.9. The current record does not support a
finding of laches because the agency has not proved, with admissible evidence, that it
was prejudiced by the appellant’s delay in filing this appeal. See Brown v. Department
of the Air Force, 88 M.S.P.R. 22, ¶ 5 (2001) (holding that laches bars a claim when an
unreasonable delay in bringing the claim has prejudiced the party against whom the
action is taken). During closing arguments, counsel for the agency made speculative
and generalized assertions about prejudice; however, it is well -established that
statements by a party’s representative are not evidence. See Hendricks v. Department of
the Navy, 69 M.S.P.R. 163, 168 (1995). On remand, after affording the parties an
opportunity to address this issue and after considering any additional evidence in the
record, the administrative judge shall determine whether the agency has proved that
laches should bar consideration of the 2010 nonselection for the Deputy Director
position and the 2011 removal of supervisory functions.
7
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. | Price_Roscoe_H_DC-1221-22-0443-W-1__Remand_Order.pdf | 2024-05-01 | null | DC-1221-22-0443-W-1 | NP |
1,582 | https://www.mspb.gov/decisions/nonprecedential/Palmer_George_C_DA-0752-19-0461-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE C PALMER,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-19-0461-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
George C Palmer , El Paso, Texas, pro se.
Cameron Pittman , Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal as barred under the doctrine of res judicata. On petition for
review, the appellant challenges the outcome of his prior removal appeal, citing
potential mitigating factors, and asserting that he was denied a hearing and 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).
opportunity to call witnesses.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).
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
2 Evidence included by the appellant with his petition for review has not been
considered because it is not new or material. Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980); Meier v. Department of the Interior , 3 M.S.P.R. 247, 256
(1980); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980).
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
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. 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.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. 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. 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 | Palmer_George_C_DA-0752-19-0461-I-1__Final_Order.pdf | 2024-05-01 | GEORGE C PALMER v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-19-0461-I-1, May 1, 2024 | DA-0752-19-0461-I-1 | NP |
1,583 | https://www.mspb.gov/decisions/nonprecedential/Montgomery_JamesDC-0752-21-0512-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES H. MONTGOMERY, II,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-21-0512-I-2
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James H. Montgomery, II , Augusta, Georgia, pro se.
Daniel Piccaluga , Esquire, and David Myers , Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal taken under both chapters 43 and 75 of Title 5. On petition
for review, the appellant reasserts many of his arguments from below regarding
the misconduct charges, performance-based removal, and affirmative defenses 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).
a harmful procedural error, due process violation, and whistleblower reprisal.
Petition for Review (PFR) File, Tab 1. He also argues that the administrative
judge abused his discretion when ruling on witnesses and imposing sanctions
against him in relation to a discovery dispute.2 Id. at 12-14. 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 discussions of the
elements of a chapter 43 performance -based removal and whistleblower reprisal
affirmative defense, we AFFIRM the initial decision.3
2 In the appellant’s reply to the agency’s response to his petition for review, he argues,
in addition to substance, that the agency’s response exceeds the word limit under the
Board’s regulations, and he includes a motion to strike the agency’s response on those
grounds. PFR File, Tab 4 at 4-5. The agency responded to the appellant’s motion to
strike, asserting that its response to the petition for review is within the Board’s word
limit. PFR File, Tab 5. Under 5 C.F.R. § 1201.114(h), a response to a petition for
review is limited to 7,500 words. Excluding the automatically generated e-Appeal
transmittal sheets and the certificate of service, the agency’s response to the appellant’s
petition for review contains 7,424 words, which is within the Board’s word limit for
such a pleading. PFR File, Tab 3; see 5 C.F.R. § 1201.114(h). Accordingly, because
the agency’s response to the petition for review does not exceed the word limit, we
deny the appellant’s motion to strike.
3 The appellant has another appeal before the Board in Montgomery v. Department of
Homeland Security , MSPB Docket No. DC-1221-21-0305-W-1. That matter is being
decided separately. 2
The administrative judge correctly affirmed the chapter 75 removal action.
Regarding the chapter 75 removal action, the administrative judge correctly
found that the agency proved the misconduct charges of lack of candor and failure
to follow instructions by preponderant evidence. Montgomery v. Department of
Homeland Security , MSPB Docket No. DC-0752-21-0512-I-2, Appeal File (I-2
AF), Tab 24, Initial Decision (ID) at 4-9. He also correctly found that the agency
proved that a nexus exists between the misconduct and the efficiency of the
service and that the penalty of removal was reasonable. ID at 10-12. The
appellant’s arguments on review do not provide a basis to disturb the initial
decision in this regard. 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
reached well-reasoned conclusions); Broughton v. Department of Health
and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The administrative judge correctly affirmed the chapter 43 performance-based
removal action, but we supplement the initial decision to find that the agency
proved by substantial evidence that its performance standards are valid.
Regarding the chapter 43 performance-based removal action, we ultimately
agree with the administrative judge that the agency established the basis for this
action by substantial evidence. ID at 13-25; see 5 C.F.R. § 1201.56(b)(1)(i).
However, the administrative judge’s discussion of this action omitted a necessary
element for the agency to prove a performance-based removal action. ID at 13.
To support a chapter 43 performance-based action, an agency must prove by
substantial evidence that (1) the Office of Personnel Management (OPM)
approved its performance appraisal system and any changes thereto; (2) it
communicated to the appellant the performance standards and critical elements of
his position; (3) the appellant’s performance standards are valid under 5 U.S.C.
§ 4302(c)(1); (4) the agency warned the appellant of the inadequacies of his
performance during the appraisal period and gave him an opportunity to improve;3
and (5) after an adequate improvement period, the appellant’s performance
remained unacceptable in at least one critical element. Lee v. Department of
Veteran Affairs, 2022 MSPB 11, ¶ 13 ; Towne v. Department of the Air Force ,
120 M.S.P.R. 239, ¶ 6 & n.5 (2013). Included in the agency’s burden is whether
the appellant’s performance was unacceptable in one or more critical elements
prior to the initiation of the improvement period, thereby justifying its initiation.
Santos v. National Aeronautics and Space Administration , 990 F.3d 1355,
1360-61 (Fed. Cir. 2021); Lee, 2022 MSPB 11, ¶¶ 13-14.
In the initial decision, the administrative judge appropriately found that
OPM approved the agency’s performance appraisal system, that the agency
communicated to the appellant the performance standards and critical elements,
or, here, core competencies, of his position, that the appellant’s performance was
unacceptable in one or more core competency prior to the initiation of an
improvement period, that it warned the appellant of the inadequacies of his
performance during the appraisal period and gave him a reasonable opportunity to
improve, and that, during the performance improvement plan (PIP) period, the
appellant’s performance remained unacceptable. ID at 14-24. The appellant’s
arguments on review do not provide a basis to disturb these findings. See Crosby,
74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R. at 359. However, as noted, the
administrative judge’s discussion of these elements did not address whether the
agency proved by substantial evidence that the appellant’s performance standards
are valid under 5 U.S.C. § 4302(c)(1). ID at 13. Accordingly, we do so in the
first instance here.4
4 The administrative judge’s recitation of the necessary elements to prove this action
also did not explicitly include whether, after an adequate period of time, the appellant’s
performance remained at an unacceptable level in at least one critical element. ID
at 13; see Lee, 2022 MSPB 11, ¶ 13 ; Towne, 120 M.S.P.R. 239, ¶ 6. Nonetheless, in his
discussion of the appellant’s PIP, the administrative judge considered the ways in which
the appellant’s performance remained unacceptable, and thus, substantively addressed
the element, despite any failure to do so in form. ID at 22-25. Because the
administrative judge’s discussion ultimately addressed the substance of this element,
any error in its explicit omission is harmless and does not provide a basis to disturb the4
To be valid, an agency’s performance standards must be reasonable,
realistic, attainable, clearly stated in writing, specific enough to provide the
employee with a firm benchmark toward which to aim his performance, and
sufficiently precise to invoke general consensus as to their meaning and content.
Towne, 120 M.S.P.R. 239, ¶ 21. Here, the record contains the appellant’s
performance plan, which details the seven core competencies used to evaluate the
appellant’s performance. Montgomery v. Department of Homeland Security ,
MSPB Docket No. DC-0752-21-0512-I-1, Initial Appeal File (IAF), Tab 11
at 706-10. Additionally, the performance plan sets forth four levels of
performance upon which each core competency is evaluated: achieved
excellence, exceeded expectations, achieved expectations, and unacceptable. Id.
at 706. For each core competency, the performance plan includes a paragraph of
the skills and tasks generally associated with the particular core competency, and
it further explains, with a reasonable amount of specificity, what sort of behavior
or level of performance is necessary to achieve expectations and what is
necessary to achieve excellence. Id. at 706-10. To the extent an assessment of
the listed skills and tasks requires a somewhat subjective evaluation of an
employee’s performance, the Board has consistently found that professional and
technical jobs, such as the appellant’s, are often not susceptible to performance
standards that are strictly objective and may require a degree of subjective
judgement that would not be necessary or proper in a position of less professional
or technical nature. See Greer v. Department of the Army , 79 M.S.P.R. 477,
483-84 (1998). Moreover, the appellant has not challenged the validity of his
performance standards either below or on review. Based on the foregoing, we
find that the appellant’s performance standards are valid. See Towne,
initial decision. See Foust v. Department of the Treasury , 80 M.S.P.R. 477, ¶ 2 n.*
(1998) (explaining that the Board adheres to the principle that form will not be exalted
over substance); 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).5
120 M.S.P.R. 239, ¶ 21. We affirm the administrative judge’s findings regarding
the other elements, as discussed above, and we supplement the initial decision to
find that the appellant’s performance standards are valid.
The administrative judge correctly found that the appellant failed to establish his
affirmative defenses, but we supplement his discussion of the appellant’s
whistleblower reprisal claim.
The administrative judge correctly found that the appellant failed to
establish his harmful procedural error, due process violation, and whistleblower
reprisal claims. ID at 27-32. However, although we ultimately agree with the
conclusion that the appellant failed to prove his whistleblower reprisal
affirmative defense, we supplement the initial decision’s discussion of that
affirmative defense here.
In order to prevail on a whistleblower retaliation affirmative defense, an
appellant must prove by preponderant evidence that he made a whistleblowing
disclosure as described under 5 U.S.C. § 2302(b)(8) or engaged in protected
activity as described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action outlined in 5 U.S.C. § 2302(a)(2)(A).
5 U.S.C. § 1221(e)(1); Covington v. Department of the Interior , 2023 MSPB 5,
¶ 15. In the initial decision, the administrative judge found that, even assuming
the appellant proved by preponderant evidence that he made one or more
protected disclosures, he failed to show that the disclosures were a contributing
factor in his removal. ID at 31-32. In his discussion of the contributing factor
element, however, he did not discuss or apply any of the legal standards
employed by the Board. ID at 30-33. Thus, we do so here in the first instance.
The Board has explained that one way an appellant may establish the
contributing factor criterion is the knowledge/timing test, under which an
employee submits evidence showing that the official taking the personnel action
knew of the disclosure or activity and that the personnel action occurred within a6
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. Based on our review of the
record, we discern no error in the administrative judge’s finding that the appellant
failed to prove that either the proposing or deciding official had knowledge of his
protected disclosures or activities. ID at 32.
In addition to showing actual knowledge, an appellant can also demonstrate
that a disclosure was a contributing factor to a personnel action by showing that
the official taking the action had constructive knowledge of the disclosure. See
Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 11 (2012). An appellant
can establish constructive knowledge by demonstrating that an individual with
actual knowledge of the disclosure influenced the official accused of taking the
retaliatory action. See id. Here, the only employee who the appellant has clearly
asserted influenced the agency’s decision to remove him is the Office of Equal
Rights (OER) Director. I -2 AF, Tab 22, Hearing Recording, Day 3 (testimony of
the appellant). To the extent the appellant could establish by preponderant
evidence that the OER Director had knowledge of his protected disclosures and
activity, he nonetheless has admitted that his belief that the OER Director
influenced the removal decision is speculative. Id.; ID at 32. An allegation based
on speculation does not rise to the level of preponderant evidence. Duncan v.
Department of the Air Force , 115 M.S.P.R. 275, ¶ 9 (2010). Thus, the appellant
has failed to establish either actual or constructive knowledge, and therefore, has
failed to meet the knowledge/timing test.
However, the knowledge/timing test is not the only way for an appellant to
satisfy the contributing factor standard. Dorney, 117 M.S.P.R. 480, ¶ 14. If an
appellant fails to meet that standard, the Board will 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 desire7
or motive to retaliate against the appellant. Id., ¶ 15. Here, in light of the
administrative judge’s findings regarding the chapter 75 and chapter 43 actions,
and our agreement with his findings, we find that the agency’s reasons for the
appellant’s removal are strong. Although the officials who proposed and took the
removal action against the appellant may have had some professional retaliatory
motive because they are generally responsible for the agency’s overall
performance, see Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed.
Cir. 2012); Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶¶ 14-15, the
appellant has not demonstrated any motive to retaliate beyond that possible basic
degree. Moreover, the appellant has not shown by preponderant evidence that
any of his protected disclosures or protected activities involved conduct
implicating either the proposing or deciding official. Therefore, we find that,
weighing the Dorney factors on the whole, the appellant failed to establish the
contributing factor element by preponderant evidence. Accordingly, we agree
with the administrative judge that the appellant failed to prove his whistleblower
reprisal claim, and we affirm the initial decision in this regard, as supplemented
here.
The appellant failed to show that the administrative judge abused his discretion
when ruling on witness requests and in imposing sanctions against the appellant
regarding a discovery dispute.
The administrative judge’s ruling on witnesses
In his petition for review, the appellant argues that the administrative judge
erred in “adopting the agency’s view” that only witnesses who supervised the
appellant in 2019 and 2020 should be permitted to testify and that the
administrative judge improperly denied his witnesses who would have testified to
the appellant’s character, truthfulness, and work habits. PFR File, Tab 1
at 12-13. In an order and summary of the prehearing conference, the
administrative judge approved seven joint witnesses and, after providing a
thorough explanation, made individual rulings on all the appellant’s 22 requested8
witnesses, some of whom were approved to testify. I-2 AF, Tab 12 at 10-16. On
review, the appellant has not explained why these rulings were in error, nor has
he offered any specific information about what the witnesses would have testified
about and why he believes that their testimony would be relevant, or why it would
affect the outcome of his appeal. PFR File, Tab 1. Accordingly, we find that the
appellant failed to demonstrate any error in the administrative judge’s denial of
witnesses. See Franco v. U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985)
(explaining that the Board’s regulations give an administrative judge wide
discretion to control the proceedings, including authority to exclude witnesses the
appellant has not shown would offer relevant, material, and nonrepetitious
evidence); see also 5 C.F.R. §§ 1201.41(b)(8), (b)(10) (setting forth an
administrative judge’s authority and discretion to rule on witnesses and to order
the appearance of witnesses whose testimony would be relevant, material, and
nonrepetitious).
The administrative judge’s issuance of sanctions against the
appellant
The appellant also argues on review that the administrative judge
improperly sanctioned him as the result of a discovery dispute between the
parties. PFR File, Tab 1 at 14. Specifically, he argues that the administrative
judge erred in not allowing him to reference “several hundred pages of
documents” during the hearing and that he abused his discretion in imposing
sanctions without issuing an order on the agency’s motion for sanctions.
PFR File, Tab 1 at 14. The appellant’s arguments are without merit. Regarding
the argument that the administrative judge imposed sanctions without first issuing
an order on the agency’s motion for sanctions, the record includes the
administrative judge’s order granting the agency’s motion for sanctions, wherein
he imposes sanctions on the appellant. IAF, Tab 24. Thus, the appellant’s
argument that the administrative judge failed to issue such an order is not
supported by the record. 9
Regarding the appellant’s argument that the administrative judge erred in
not allowing him to reference “several hundred pages of documents,” an
administrative judge has the authority to impose sanctions upon the parties as
necessary to serve the ends of justice . See Morris v. Department of the Navy ,
123 M.S.P.R. 662, ¶ 11 (2016); see also 5 C.F.R. § 1201.41(b)(11) (providing the
administrative judge with the authority and discretion to impose sanctions);
5 C.F.R. § 1201.43 (explaining that an administrative judge may impose sanctions
when a party fails to comply with an order and that such sanctions may include
the elimination from consideration any submissions of the party that fails to
comply with an order). To the extent the prohibited documents referenced by the
appellant on review are the same documents that are within the scope of the
administrative judge’s order of sanctions, IAF, Tab 24 at 2-3, the appellant has
not explained why that order was in error or how the administrative judge abused
his discretion. PFR File, Tab 1 at 14. To the extent the prohibited documents
were not the subject of the administrative judge’s sanctions order, the appellant
has not sufficiently explained so in his petition for review, and we will make no
such presumption here. Based on the foregoing, we find that the appellant has
failed to establish that the administrative judge abused his discretion in issuing
sanctions against the appellant. See 5 C.F.R. §§ 1201.41(b)(11), 1201.43.
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
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
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 at11
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,12
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 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. 115-195,13
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. 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 | Montgomery_JamesDC-0752-21-0512-I-2__Final_Order.pdf | 2024-05-01 | null | DC-0752-21-0512-I-2 | NP |
1,584 | https://www.mspb.gov/decisions/nonprecedential/Montgomery_JamesDC-1221-21-0305-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES H. MONTGOMERY, III,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-21-0305-W-1
DATE: May 1, 2024
THIS ORDER IS NONPRECEDENTIAL1
James H. Montgomery, III , Augusta, Georgia, pro se.
David Myers , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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,
VACATE the initial decision , and REMAND the case to the regional office for
further adjudication, including a hearing, in accordance with this Remand Order.
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
At all times relevant to this appeal, the appellant occupied the position of
GS-14 Supervisory Civil Rights Analyst with the Federal Emergency
Management Agency (FEMA)’s Office of Equal Rights (OER). In his
March 20, 2021 initial appeal to the Board, he claimed that his superiors denied
his within-grade increase and committed harmful procedural error in
“terminating” his approved sick leave. Initial Appeal File (IAF), Tab 1 at 3, 5.
He also stated that management retaliated against him for participating in
protected activity, specifying that he “filed complaints and provided oral
and written testimony in inquiries reviewing [OER’s] toxic work environment.”
Id. at 5. The appellant requested a hearing. Id. at 2. The administrative judge
issued a jurisdictional show-cause order addressing all of the appellant’s claims,
including his claim of whistleblower retaliation. IAF, Tab 3.
In his response, the appellant stated, inter alia, that he filed a whistleblower
reprisal complaint with the Office of Special Counsel (OSC) in which he claimed
that management had retaliated against him for his participation in investigations
of actions and the work environment of OER. IAF, Tab 7 at 6. In his response to a
subsequent jurisdictional order, IAF, Tab 13, the appellant alleged “gross
mismanagement, abuse of authority, and harassment that created a hostile work
environment in the OER” in connection with the following personnel actions:
(1) suspending him in October 2019; (2) placing him on a performance improvement plan
(PIP) and denying his within-grade increase on November 18, 2020; (3) retroactively
denying his previously approved sick leave, and (4) failing to provide him “timely
guidance and feedback on [his] assignments.” IAF, Tab 14 at 5-9. The appellant asserted
that these actions were taken by three specific OER supervisors. Id. at 5. He further
alleged that the actions were in retaliation for the following protected disclosures and
activities: (1) his March 19, 2019 response to an Office of Inspector General (OIG)
questionnaire; (2) his participation in an OIG interview on June 12, 2019, regarding OER
management and the Anti-Harassment Program; (3) a statement he provided to the2
agency’s Office of Professional Responsibility (OPR) on November 21, 2019,
regarding the work environment in the OER; (4) his testimony to the agency’s OPR on
June 25, 2020, regarding an investigation of the OER work environment; (5) an undated
letter he wrote to the then-FEMA Administrator, “to register [his] opposition to
[retroactive sick leave denial] and other abuse of power actions by the OER leadership;”
and (6) his statement to the agency’s Deputy Associate Administrator regarding the OER
work environment. Id. at 5-7. In support of his claim of retaliation, t he appellant also
submitted numerous documents, including an unsigned and undated copy of his
affidavit in connection with an EEO complaint in which he alleged discrimination
based on race, national origin, sex, and age, as well as retaliation for previous
EEO activity, Id. at 34-46, and a partial copy of what appeared to be a second
EEO complaint. Id. at 92-93.
In its response, the agency urged that the appeal be dismissed for lack of
jurisdiction because the appellant failed to exhaust his remedy before OSC,
because retaliation based on EEO matters cannot be heard in an IRA appeal, and
because the appellant failed to nonfrivolously allege that he made protected
disclosures that were a contributing factor in a covered personnel action.
IAF, Tab 15.
In an initial decision based on the written record, the administrative judge
first found that the appellant failed to establish Board jurisdiction as an otherwise
appealable action over both the alleged denial of his within-grade increase and
the termination of his previously approved leave. IAF, Tab 16, Initial Decision
(ID) at 6-8. In addressing the appellant’s IRA appeal, the administrative judge
found that he failed to show that he exhausted his claims before OSC,
ID at 12-15, with the exception of his allegation of retaliation for EEO
activity, but that that claim could not be heard in the context of an IRA appeal.
ID at 15-17. On review of the appellant’s specific responses to the jurisdictional
issues, the administrative judge found that some of the alleged actions of which
the appellant complained were not covered personnel actions, ID at 24-26, and3
that he failed to make a nonfrivolous allegation that he engaged in whistleblowing
activity regarding several of his proffered disclosures and activities, warranting
a dismissal of all claims predicated upon such unprotected disclosures and activities.
ID at 17-21. The administrative judge also found that the appellant failed to make a
nonfrivolous allegation that he engaged in whistleblowing activity by making a protected
disclosure or engaging in protected activity regarding four of his disclosures/activities
and that, therefore, the Board lacked jurisdiction over the appellant’s allegations
predicated on these disclosures/activities. ID at 21-24. Finally, the administrative judge
found that the appellant’s allegations and arguments did not constitute a nonfrivolous
allegation that his disclosures or activities were a contributing factor in the agency
actions at issue in this appeal. ID at 27-29. For all these reasons, the administrative
judge dismissed the appellant’s IRA appeal for lack of jurisdiction. ID at 1, 30.
The appellant has filed a petition for review, Petition for Review (PFR) File,
Tab 1, and the agency has filed a response, PFR File, Tab 3.
ANALYSIS
Contrary to the administrative judge’s findings, the appellant exhausted his
remedy with OSC regarding some disclosures and activities and some personnel
actions.
To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an
appellant must have provided OSC with a sufficient basis to pursue an
investigation into his allegations of whistleblower reprisal. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 7; Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶ 10. Generally, exhaustion can be
demonstrated through the appellant’s 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 the amended
allegations, and the appellant’s written responses to OSC referencing the
amended allegations. Skarada, 2022 MSPB 17, ¶ 7; Mason v. Department of
Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). Alternatively, exhaustion may4
be proven through other sufficiently reliable evidence, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in his appeal. Skarada, 2022 MSPB 17, ¶ 7; Chambers, 2022 MSPB 8, ¶ 11. To
establish Board jurisdiction, the appellant must prove exhaustion with OSC by
preponderant evidence, not just present nonfrivolous allegations. 5 C.F.R.
§ 1201.57(c)(1).
Although he did not submit a copy of his OSC complaint, the appellant did
submit a copy of OSC’s January 5, 2021 preliminary determination to close his
complaint, and a copy of its January 19, 2021 final determination to close his
complaint. IAF, Tab 7 at 33, 35. The administrative judge considered these two
documents from OSC, but found that they were conclusory and provided very
limited information concerning specific allegations raised by the appellant.
ID at 14-15. We disagree.
In its preliminary determination, OSC acknowledged the appellant’s claims
that, from August 2018 to the present, he engaged in protected activity when
he filed an EEO complaint and provided statements in five inquiries into alleged
toxic management behavior in the OER and the taking of unlawful personnel
actions and abuse of authority, and when he supported other employees in
opposing adverse actions taken against them. IAF, Tab 7 at 35-36. OSC also
acknowledged the alleged personnel actions of which the appellant complained as
including a 2-day suspension in October 2019, a 5-day suspension in September
2020, a low performance rating on January 30, 2020, receiving no responses to
travel vouchers he submitted, receiving insufficient feedback on work
assignments, not having his sick leave requests properly addressed, a hostile work
environment/harassment, being placed on a PIP, and being denied a within-grade
increase. Id. at 35. In its final determination to close his complaint, OSC again
described the appellant’s claims that, on multiple occasions, he was asked to
provide testimony in connection with internal agency administrative
investigations, and that he filed complaints. Id. at 33. Because the appellant5
raised these matters to OSC, as set forth above, he exhausted his remedy with
OSC as to those matters.
The administrative judge erred in determining that the appellant failed to make
the necessary nonfrivolous allegations to support Board jurisdiction.
In addition to proving that he exhausted his administrative remedies before
OSC, in order to establish Board jurisdiction in an IRA appeal, an appellant must
make nonfrivolous allegations that (1) he 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). Linder v. Department of
Justice, 122 M.S.P.R. 14, ¶ 6 (2014); see 5 U.S.C. §§ 1214(a)(3), 1221(c)(1).
Despite finding that the appellant failed to establish exhaustion, the
administrative judge went on to consider whether the appellant nonfrivolously
alleged that he made protected disclosures or engaged in protected activity that
contributed to the agency’s taking a covered personnel action against him. In
determining that the appellant failed to make such allegations, the administrative
judge relied upon and, in fact, quoted extensively from, an agency pleading
submitted in its response to her order on proof and jurisdiction in which the
agency made arguments regarding the evidence, and the administrative judge
summarily adopted those findings. IAF, Tab 15; ID at 17-29.
In Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1369 (Fed.
Cir. 2020), our reviewing court held that, “when evaluating the Board’s
jurisdiction over a whistleblower action, the question of whether the appellant has
non-frivolously alleged protected disclosures that contributed to 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. The
Board may not deny jurisdiction by crediting the agency’s interpretation of the
evidence as to whether the alleged disclosures fell within the protected categories6
or whether the disclosures were a contributing factor to an adverse personnel
action.” Id. Because the administrative judge relied heavily on the agency’s
interpretation of the evidence, her findings on the sufficiency of the appellant’s
nonfrivolous allegations, with one exception, run afoul of Hessami.2
Accordingly, we have reviewed the record to determine whether the appellant has
alleged sufficient factual matter, accepted as true, to state a claim that is plausible
on its face. Hessami, 979 F.3d at 1369.
The appellant nonfrivolously alleged that he made protected disclosures and
engaged in protected activity.
The appellant alleged below that he made protected disclosures and
participated in protected activities. He referred to statements he made and
answers he provided in investigatory interviews regarding the OER work
environment, specifically, his statement to the agency’s Deputy Associate
Administrator on March 25, 2019, his responses to an OIG questionnaire on
March 29, 2019, information he provided in an OIG interview on June 12, 2019,
and testimony he provided to the OPR on November 21, 2019, and June 25, 2020,
in connection with two investigations. IAF, Tab 7 at 7-8. According to the
appellant, in all these instances, he detailed abuse of authority by OER
leadership, including harassing behavior toward staff and employees who spoke
out or filed complaints opposing abusive practices, rating employees unfairly, and
not responding to their requests for constructive work feedback. Id. at 6.
2 We agree with the administrative judge’s finding that the Board lacks jurisdiction over
the appellant’s claim that the agency retaliated against him for having filed an EEO
complaint in which he raised allegations of discrimination and retaliation for prior EEO
activity. ID at 15-17. The Board lacks jurisdiction over such claims in the context of
an IRA appeal because there is no indication that the substance of the complaint
concerned remedying a violation of whistleblower retaliation under 5 U.S.C. § 2302(b)
(8), and thus, it does not constitute a nonfrivolous allegation of protected activity under
5 U.S.C. § 2302(b)(9)(A)(i). Young v. Merit Systems Protection Board , 961 F.3d 1323,
1329 (Fed. Cir. 2020); see Edwards v. Department of Labor , 2022 MSPB 9, ¶ 22
(explaining that, in line with long-standing administrative and judicial interpretation,
Title VII-related claims are excluded from protection under whistleblower protection
statutes).7
We first address the appellant’s alleged responses to and interview with the
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 or to OSC
“in accordance with applicable provisions of law.” Under that broadly worded
provision, any disclosure to the OIG or OSC regardless of its content is protected
so long as such disclosure is made in accordance with applicable provisions of
law. Fisher v. Department of the Interior , 2023 MSPB 11 ¶ 8. Therefore, the
appellant’s claims that he responded to an OIG questionnaire and provided
information in an OIG interview constitute a nonfrivolous allegation that
he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).
Regarding the appellant’s alleged responses to the OPR’s inquiries, we note
that, prior to December 12, 2017,3 the whistleblower protection statutory scheme
at 5 U.S.C. § 2302(b)(9)(C) 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. However, on that
date, section 1097(c)(1) of the National Defense Authorization Act of 2018
amended section 2302(b)(9)(C) to provide that, in addition to an agency’s OIG or
OSC, a disclosure to “any other component responsible for internal investigation
or review” is also protected.” Edwards v. Department of Labor , 2022 MSPB 9,
¶ 29. We need not determine whether the OPR is such a component. At this
stage of the proceeding, the appellant is only required to make a nonfrivolous
allegation that he engaged in protected activity. Regarding his alleged responses
to the OPR’s inquiries, we find that the appellant has done so.4
As noted, the appellant also alleged that he made protected disclosures in
statements to the agency’s Deputy Associate Administrator. According to the
3 All events at issue took place after December 12, 2017, the effective date of the
National Defense Authorization Act of 2018.
4 During the merits portion of his appeal on remand, the appellant will be required to
establish, inter alia, that the OPR is, in fact, “a component responsible for internal
investigation or review.”8
appellant, he told the Deputy Associate Administrator that the OER is a toxic
office, that it lacks integrity, and that those whose views are different than
management’s are subjected to deliberate attacks on their ability and competence.
IAF, Tab 8 at 14. To the extent the appellant’s claims purport to suggest an abuse
of authority within the OER, we note that, for purposes of the Whistleblower
Protection Act, an abuse of authority occurs when there is an arbitrary or
capricious exercise of power by a Federal official or employee that adversely
affects the rights of any person or that results in personal gain or advantage to
himself or to other preferred persons. Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285, ¶ 22 (2013). To the extent the appellant’s claims purport to
suggest gross mismanagement within the OER, gross mismanagement means
Government action or inaction which creates a substantial risk of significant
adverse impact upon the agency’s ability to accomplish its mission. Francis v.
Department of the Air Force , 120 M.S.P.R. 138, ¶ 12 (2013). An appellant’s
disclosures must be specific and detailed, however, not vague allegations of
wrongdoing regarding broad or imprecise matters. Rzucidlo v. Department of the
Army, 101 M.S.P.R. 616, ¶ 13 (2006). Here, we find that, as the appellant
describes them, the disclosures he made to the agency’s Deputy Associate
Administrator are conclusory and lacking in specificity and, as such, do not
constitute nonfrivolous allegations that support IRA jurisdiction.
The appellant nonfrivolously alleged that he was subjected to covered personnel
actions.
We have found that the appellant exhausted his remedy with OSC as to five
alleged personnel actions that he raised in his appeal to the Board: his
October 2019 suspension, his placement on a PIP, the denial of his within-grade
increase, the retroactive denial of his sick leave requests, and the agency’s failure
to provide him with feedback on his work assignments. He has nonfrivolously
alleged that the first four actions are covered personnel actions under 5 U.S.C.
§ 2302(a)(2)(A)(iii) and (ix). Regarding the fifth alleged action, the agency’s9
failure to provide him with feedback on his work assignments, the appellant has
not alleged facts that would support a finding that any such failure on the
agency’s part resulted in a significant change in duties, responsibilities, or
working conditions. 5 U.S.C. § 2302(a)(2)(A)(xii). In Skarada, 2022 MSPB 17,
¶¶ 15-16, the Board clarified, that under this category of covered personnel
action, the change must have a practical and significant impact on the overall
nature of an employee’s working conditions, responsibilities, or duties. Other
than stating that the agency failed to provide him with feedback on his work
assignment and that managers’ responses often came after a project’s deadline,
IAF, Tab 14 at 8, the appellant has not indicated that the agency’s action had a
significant impact on his working conditions, and therefore, he has not made a
nonfrivolous allegation that the agency’s action constituted a covered personnel
action.
The appellant nonfrivolously alleged that his protected activity was a contributing
factor in some personnel actions.
To satisfy the contributing factor criterion at the jurisdictional stage of
an IRA appeal, the appellant need only raise a nonfrivolous allegation that the
fact or the content of the protected disclosure, or the fact of the protected activity,
was one factor that tended to affect a covered personnel action in any way.
Salerno v. Department of the Interior , 123 M.S.P.R. 230, 13 (2016). One way to
establish the contributing factor criterion is the knowledge/timing test, under
which an employee may nonfrivolously allege that the protected disclosure or
activity was a contributing factor in a personnel action through circumstantial
evidence, such as evidence that the official who took the 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. Ontivero v. Department of
Homeland Security , 117 M.S.P.R. 600, ¶ 21 (2012). Regarding the knowledge
part of the knowledge/timing test, the appellant asserts that his protected activity10
was directed at OER leadership, and that they were aware of the statements,
allegations, participation, and opposition and were required to respond by
affidavit to the issues raised. IAF, Tab 8 at 14. Given that these individuals were
the same persons who were responsible for the alleged covered personnel actions
(the appellant’s two first-level supervisors and his second-level supervisor),
we find that the appellant has raised a nonfrivolous allegation that they had
knowledge of his involvement in the OIG and OPR inquiries. Regarding the
timing portion of the knowledge/timing test, the appellant asserts that
he answered the OIG’s questionnaire on March 19, 2019, and was interviewed by
the OIG on June 12, 2019, and that he provided testimony to the OPR on
November 21, 2019, and June 25, 2020. IAF, Tab 7 at 4-5. He further asserts
that the agency suspended him on October 10, 2019, placed him on a PIP and
denied his within-grade increase on November 18, 2020, and retroactively denied
his sick leave request on October 28, 2020. IAF, Tab 14 at 9. Under the
circumstances, we find that the appellant has nonfrivolously alleged that a
reasonable person could conclude that the protected activity was a contributing
factor in the covered personnel actions. Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 25 (2016) (finding that a personnel action that occurs within
2 years of a protected disclosure satisfies the timing portion of the
knowledge/timing test).
Because the appellant has established the Board’s jurisdiction over his IRA
appeal, it must be remanded to the regional office for adjudication on the merits,
including the hearing the appellant requested. Linder, 122 M.S.P.R. 14, ¶ 6.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall address the appellant’s claimed protected activity of
making statements and responding to OIG regarding the OER work environment,11
and his similarly responding to the OPR. The administrative judge shall further
address the appellant’s following claimed personnel actions: his October 2019
suspension, his placement on a PIP and the denial of his within-grade increase,
and the retroactive denial of his sick leave requests.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Montgomery_JamesDC-1221-21-0305-W-1__Remand_Order.pdf | 2024-05-01 | null | DC-1221-21-0305-W-1 | NP |
1,585 | https://www.mspb.gov/decisions/nonprecedential/Heggins_EleshiaDA-0752-18-0540-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELESHIA HEGGINS,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DA-0752-18-0540-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Don T. O’Bannon , Esquire, Dallas, Texas, for the appellant.
Mary C. Merchant , Esquire, Sakeena M. Adams , Esquire, and Taylor L.
Baronich , Esquire, Fort Worth, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
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
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
clarify the administrative judge’s analysis in sustaining the charge of lack of
candor, we AFFIRM the initial decision.
On petition for review, the appellant argues that the agency: (1) failed to
prove its charge of falsification of time and attendance records; (2) failed to
prove the third specification of the charge of lack of candor; and (3) failed to
provide her with requested union representation or notify her of her right to union
representation prior to her interview with agents of the agency’s Office of
Inspector General. Petition for Review File, Tab 1. She does not challenge the
administrative judge’s findings that she failed to prove her remaining affirmative
defenses, that a nexus exists between her conduct and the efficiency of the
service, and that the penalty of removal did not exceed the bounds of
reasonableness. We have reviewed the appellant’s arguments regarding the
agency’s failure to prove its charge of falsification, as well as her argument that
the agency failed to provide her with her requested union representation or notice
of her right to union representation, and affirm the administrative judge’s
findings for the reasons set forth in the initial decision. Initial Appeal File (IAF),
Tab 51, Initial Decision (ID); see Clay v. Department of the Army , 123 M.S.P.R.
245, ¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings2
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on the issue of credibility).
We find the appellant’s argument regarding the third specification of the
lack of candor charge to be without merit; however, we clarify the administrative
judge’s analysis of this charge. An agency alleging lack of candor must prove
(1) that the employee gave incorrect or incomplete information and (2) that she
did so knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 17
(2016). The agency’s sustained specifications provided that the appellant
“knowingly” provided incorrect information to agency officials. IAF, Tab 14
at 28-38. However, the administrative judge found that, for each sustained
specification, the appellant supplied incorrect information to agency officials and,
in doing so, “intended to deceive” the agency. ID at 11-14. Although lack of
candor “necessarily involves an element of deception,” “intent to deceive” is not
a separate element of the offense, as it is for falsification. Ludlum v. Department
of Justice, 278 F.3d 1280, 1284-85 (Fed. Cir. 2002). It was not necessary for the
administrative judge to find the appellant’s conduct intentional to sustain the lack
of candor charge. ID at 11-14; see Prouty v. General Services Administration ,
122 M.S.P.R. 117, ¶ 16 (2014) (observing that the Board is required to review the
agency’s decision on an adverse action solely on the grounds invoked by the
agency). Any error that the administrative judge made in her findings was not
prejudicial to the appellant, however, because a finding of intent implicitly
includes a finding that the appellant’s conduct was knowing. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (providing that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of the initial decision). Accordingly, the administrative
judge properly found that the agency proved its charge of lack of candor. ID
at 11-16. We affirm the initial decision, as modified herein. 3
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. 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 | Heggins_EleshiaDA-0752-18-0540-I-1__Final_Order.pdf | 2024-05-01 | ELESHIA HEGGINS v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DA-0752-18-0540-I-1, May 1, 2024 | DA-0752-18-0540-I-1 | NP |
1,586 | https://www.mspb.gov/decisions/nonprecedential/Heggins_EleshiaDA-0752-16-0072-C-3 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELESHIA HEGGINS,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DA-0752-16-0072-C-3
DATE: May 1, 2024
THIS ORDER IS NONPRECEDENTIAL1
Mark Matulef , Esquire, Washington, D.C., for the appellant.
Marcus R. Patton , Esquire, and Taylor L. Baronich , Esquire, Fort Worth,
Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied her petition for enforcement of a settlement agreement. 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 Dallas Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
In November 2015, the appellant filed a Board appeal challenging her
November 12, 2015 removal from the position of Program Analyst in the
agency’s Fort Worth Asset Management Division, Southwest Multifamily
Regional Center. Heggins v. Department of Housing and Urban Development ,
MSPB Docket No. DA-0752-16-0072-I-1, Initial Appeal File (IAF), Tab 1. On
January 14, 2016, the parties executed a settlement agreement resolving the
appeal, and the administrative judge incorporated the agreement into the record
and dismissed the appeal. IAF, Tabs 22-23. The agreement provided, in relevant
part, that the appellant agreed to withdraw her appeal and any other complaints,
grievances, or claims she had filed; and to waive the right to file any other
complaint, claim, lawsuit, grievance, or appeal against the agency regarding any
matter that was or could have been raised through the date of execution of the
agreement, except as necessary to seek enforcement of the agreement. IAF,
Tab 22 at 5. In exchange, the agency agreed to mitigate the appellant’s removal
to a 74-day suspension, to rescind a July 30, 2015 reprimand and remove all
references to it from the appellant’s official personnel file, and to reassign the
appellant. Id. at 5-6.
In September 2017, the appellant filed a petition for enforcement of the
settlement agreement. Heggins v. Department of Housing and Urban
Development, MSPB Docket No. DA-0752-16-0072-C-1, Compliance File (CF),
Tab 1. The administrative judge dismissed the petition for enforcement as moot,
finding that: (1) although the agency had issued a September 25, 2017 proposal
to suspend the appellant for 14 days that referenced the July 30, 2015 reprimand,
it had issued an amended proposal that did not reference the reprimand, and the
appellant had received all of the relief to which she was entitled regarding this2
issue; (2) the agreement did not require the agency to change its timekeeping
records, reflecting that the appellant was absent without official leave (AWOL),
on which the July 30, 2015 reprimand was based; and (3) the appellant’s other
claims regarding the proposed 14-day suspension and retaliation were outside the
scope of the agreement. CF, Tab 15, Compliance Initial Decision (CID) at 3-6.
The compliance initial decision became final on December 4, 2017, when neither
the appellant nor the agency filed a petition for review. CID at 6.
In February 2018, the appellant filed a second petition for enforcement of
the settlement agreement. Heggins v. Department of Housing and Urban
Development, MSPB Docket No. DA-0752-16-0072-C-2, Compliance File
(C-2 CF), Tab 1. The administrative judge denied the petition for enforcement,
finding that: (1) the agreement did not require the agency to change the
appellant’s pay status for 6 hours of AWOL incurred in July 2015, on which the
July 30, 2015 reprimand was based, or for 3 hours of AWOL incurred on
November 12, 2015; and (2) the agency’s placement of the appellant in a non-pay
status for 8 hours on November 13, 2015, the first day of the 74-day suspension
set forth in the agreement, complied with the agreement. C-2 CF, Tab 9,
Compliance Initial Decision (C-2 CID) at 3-4. The compliance initial decision
became final on May 11, 2018, when neither party filed a petition for review.
C-2 CID at 4.
In July 2018, the appellant filed a third petition for enforcement of the
settlement agreement, alleging that the agency had subjected her to harassment
and retaliation for filing her prior Board appeal, an equal employment opportunity
(EEO) complaint, and a U.S. district court case. Heggins v. Department of
Housing and Urban Development , MSPB Docket No. DA-0752-16-0072-C-3,
Compliance File (C-3 CF), Tabs 1-2. She alleged that the harassment and
retaliation occurred in the form of unwanted verbal remarks and physical contact
from agency employees, a proposed 14-day suspension, placement on
administrative leave, an Office of Inspector General (OIG) investigation, and a3
second proposal to remove her. C-3 CF, Tabs 1-2, 6-7. The administrative judge
denied the petition, finding that: (1) the appellant had failed to show how the
second proposal to remove her or other instances of purported mistreatment
violated the settlement agreement; (2) her claims of discrimination and retaliation
were outside the scope of the agreement; (3) the appellant’s supervisor’s
statements to the agency’s OIG that the appellant “has been associated with other
work related problems including being absent without leave in 2015,” and that her
“termination was initiated by HUD but later [she] was rehired after she allegedly
filed a complaint for wrongful termination” did not violate the settlement
agreement; and (4) the appellant was barred by collateral estoppel from
challenging the proposal to suspend the appellant for 14 days because the
administrative judge had addressed it in her initial decision regarding her first
petition for enforcement. C-3 CF, Tab 8, Compliance Initial Decision (C -3 CID)
at 5-7.
The appellant has timely filed a petition for review of the third compliance
initial decision. Heggins v. Department of Housing and Urban Development ,
MSPB Docket No. DA-0752-16-0072-C-3, Compliance Petition for Review
(CPFR) File, Tab 1. The agency has opposed the petition. CPFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has the authority to enforce a settlement agreement that has been
entered into the record in the same manner as any final Board decision or order.
Vance v. Department of the Interior , 114 M.S.P.R. 679, ¶ 6 (2010). A settlement
agreement is a contract, and the Board will therefore adjudicate a petition to
enforce a settlement agreement in accordance with contract law. Id. In a
compliance action based on a settlement agreement, the burden of proving
noncompliance rests with the party asserting that the agreement has been
breached. Raymond v. Department of the Navy , 116 M.S.P.R. 223, ¶ 4 (2011).
The appellant, as the party asserting the breach, must show that the agency failed4
to abide by the terms of the settlement agreement. Id. The agency nonetheless is
required to produce evidence that it has complied with the settlement agreement.
Id.
As set forth below, we find each of the appellant’s claims on review to be
without merit, except for her allegation of retaliation following the execution of
the settlement agreement, which warrants the remand of this matter to the
regional office.
The appellant’s claims regarding the agency’s actions prior to the execution of
the January 14, 2016 settlement agreement are waived under the settlement
agreement.
On review, the appellant details numerous actions taken by the agency that
she alleges are retaliatory.2 CPFR File, Tab 1 at 4-6. First, the appellant alleges
that, on June 29, 2015, her supervisor changed her schedule without warning, and
that, on or about July 22, 2015, she was falsely accused of being AWOL. Id. at 4.
The appellant also asserts that she reported to the agency’s OIG and to a
congressional member “as a whistleblower,” and that her November 12, 2015
removal was retaliation for these actions.3 Id. These claims of retaliation prior to
the January 14, 2016 execution of the settlement agreement are foreclosed by the
2 On review, the appellant does not appear to dispute the administrative judge’s finding
that she is estopped from claiming that the September 25, 2017 proposal to suspend her
for 14 days mentioned the rescinded July 30, 2015 reprimand in violation of the
settlement agreement, and we discern no reason to disturb this ruling, as the issue was
actually litigated and was necessary to the administrative judge’s decision dismissing
the appellant’s first petition for enforcement as moot. C-3 CID at 7; CID at 3-6; see
Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 13 (2016 ) (holding that
collateral estoppel is appropriate when: (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
of 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, either as a party to the earlier action or as one whose
interests were otherwise fully represented in that action), aff’d sub. nom. Bryant v.
Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017 ). The appellant has
also declined to challenge the administrative judge’s finding that the agency did not
improperly reference the July 30, 2015 reprimand or otherwise violate the settlement
agreement in issuing the July 20, 2018 proposal to remove her, and we see no reason to
disturb that finding. C-3 CID at 5-7. 5
terms of the settlement agreement. The settlement agreement provides, in
relevant part, that the appellant “agrees to forever release and waive the right to
file any complaint, claim, lawsuit, grievance, or appeal against the Agency . . .
regarding any matter that was or could have been raised up through the date of
the execution of this Agreement, except as may be necessary to seek enforcement
of the terms of this Agreement.” IAF, Tab 22 at 5. Accordingly, we decline to
consider the appellant’s allegations of retaliation prior to the execution of the
agreement. See, e.g., Clede v. Department of the Air Force , 72 M.S.P.R. 279,
282-83 (1996) (“An appellant’s waiver of Board appeal rights in a settlement
agreement is enforceable and not against public policy if the terms of the waiver
are comprehensive, freely made, and fair, and the execution of the waiver was not
the result of duress or bad faith on the part of the agency”), aff’d, 113 F.3d 1257
(Fed. Cir. 1997) (Table).
The Board lacks jurisdiction over the appellant’s claims of discrimination and
retaliation for protected whistleblowing activity in this compliance proceeding.
The appellant asserts that she filed EEO complaints in 2015 and 2017 and a
Board appeal in 2015. CPFR File, Tab 1 at 4. She further asserts that, after she
filed her 2015 Board appeal and “won [her] job back,” the “retaliation never
stopped,” and that her new supervisor belittled her and other supervisors spoke
harshly to her. Id. The appellant asserts that she is the only young, African
American female analyst within a six-state region with a secret clearance. Id.
She claims that, under a new supervisor, she was denied training, medical
treatment, the ability to care for her mother during surgery, and the ability to
grieve her deceased brother. Id. at 5. She also asserts that her supervisor has lied
3 The appellant also asserts on review that the agency’s management had “unsavory
alliances” with the union and that she suffered weight loss. CPFR File, Tab 1 at 4. The
appellant did not raise these claims below, and we decline to consider them 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).6
and attempted to suspend her for a statement that she did not make and grabbed
her three times, and that the new director is racist. Id. She states that she
reported the grabbing incident “to EEO” and that her request to be reassigned
from the department was denied. Id.
The appellant did not raise before the administrative judge her claims
regarding the denial of training, medical treatment, the ability to care for her
mother, the ability to grieve her brother, or the new director, and we decline to
consider them. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980).
To the extent that the appellant alleges that the agency has subjected her to
discrimination on the basis of her race, gender, age, or disability, or retaliation
for her protected EEO activity, the Board does not have jurisdiction over such
claims in the absence of an otherwise appealable action. Pridgen v. Office of
Management and Budget , 117 M.S.P.R. 665, ¶ 7 (2012) (stating that the Board
does not have jurisdiction over discrimination claims absent an otherwise
appealable action). A breach of a settlement agreement is not an independently
appealable action. Kuykendall v. Department of Veterans Affairs , 68 M.S.P.R.
314, 329 (1995). The administrative judge thus properly declined to consider the
appellant’s claims of discrimination. C-3 CID at 5.
The appellant also alleges that she was retaliated against for providing the
Board with “whistleblower information” such as the sale of pornographic items at
work. CPFR File, Tab 1 at 5. To the extent that the appellant alleges that the
agency retaliated against her for engaging in protected whistleblowing activity,
the Board is similarly without jurisdiction to consider the appellant’s allegations
in determining whether the agency breached the settlement agreement. See Wren
v. Department of the Army , 2 M.S.P.R. 1, 2 (1980) (holding 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 (D.C. Cir. 1982); see also Kuykendall ,
68 M.S.P.R. at 329 (providing that the appellant’s claims under 5 U.S.C.
§ 2302(b)(1) and (b)(9) were immaterial to the issue of whether the agency7
breached the settlement agreement). Should the appellant wish to file an
individual right of action appeal claiming reprisal for whistleblowing, she may do
so consistent with statute and the Board’s regulations.
The appellant’s claims of retaliation following the execution of the settlement
agreement warrant the remand of this matter for further adjudication.
Finally, the appellant alleges that the agency engaged in unlawful
retaliation when it failed to execute a proposed settlement agreement, placed her
on administrative leave, initiated an OIG investigation, denied her legal
representation, did not inform her of her Weingarten rights, forced her to give
responses to an OIG investigator, gave false descriptions of her, and proposed her
removal on July 20, 2018.4 CPFR File, Tab 1 at 5-6.
The appellant raised in her petition for review, and throughout this
compliance proceeding, the claim that the agency has retaliated against her for
filing her Board appeal and returning to work as the result of the settlement of her
appeal. Id. at 4; C-3 CF, Tabs 1-2. Implicit in any settlement agreement is a
requirement that the parties fulfill their respective contractual obligations in good
faith. Kuykendall, 68 M.S.P.R. at 323. Even if an agreement does not explicitly
prohibit retaliation or harassment, an agency’s post -settlement harassment and
retaliation against an appellant may constitute bad faith in implementing a
reinstatement term, and thereby establish agency noncompliance with the
settlement agreement. Stasiuk v. Department of the Army , 118 M.S.P.R. 1, ¶ 7
(2012); Kuykendall, 68 M.S.P.R. at 323-24. To establish that an agency breached
the implied covenant of good faith with respect to a reinstatement term, an
appellant must show that the agency’s proven retaliatory or harassing actions,
4 The appellant appears to refer to National Labor Relations Board v. Weingarten, Inc. ,
420 U.S. 251 (1975 ), which held that an employee has a right to union representation
during an investigatory interview when the employee reasonably believes that discipline
may result. Weingarten, 420 U.S. at 267. Although Weingarten only applies to private
sector employees, Congress has granted Federal employees Weingarten-type rights, as
set forth in 5 U.S.C. § 7114(a)(2). The appellant did not allege below that the agency
did not inform her of her Weingarten rights and thus we decline to consider this claim.
See Avansino, 3 M.S.P.R. at 214. 8
under the totality of the circumstances, amounted to an unjustified and substantial
deprivation of rights as an incumbent of the position in question. Stasiuk,
118 M.S.P.R. 1, ¶ 7. A mere showing of some frictions, misunderstandings, or
unpleasantness between the appellant and other employees or managers is
insufficient to meet this burden. Id.
Here, the administrative judge did not consider whether the appellant’s
claims of retaliation and harassment were allegations that the agency acted in bad
faith in implementing the settlement agreement. The record is not sufficiently
developed to resolve this issue in the first instance on review. See Williams v.
Department of the Navy , 79 M.S.P.R. 364, 367 (1998) (remanding for further
development of the record a claim that the agency acted in bad faith in
implementing a reinstatement order when the agency did not respond to the
appellant’s allegations of harassment and retaliation). In addition, neither the
administrative judge nor the agency apprised the appellant of the means to
establish noncompliance with a settlement agreement based upon bad faith.
Accordingly, this matter must be remanded to the regional office for further
adjudication regarding this issue. See Stasiuk, 118 M.S.P.R. 1, ¶ 8 (remanding a
compliance matter for further adjudication when the administrative judge did not
provide notice to the appellant of the means to establish noncompliance based
upon bad faith). On remand, the administrative judge shall afford the parties an
opportunity to present evidence and argument as to whether the agency violated
the implied covenant of good faith in implementing the terms of the settlement
agreement.9
ORDER
For the reasons discussed above, we REMAND this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order.
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Heggins_EleshiaDA-0752-16-0072-C-3 Remand Order.pdf | 2024-05-01 | ELESHIA HEGGINS v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DA-0752-16-0072-C-3, May 1, 2024 | DA-0752-16-0072-C-3 | NP |
1,587 | https://www.mspb.gov/decisions/nonprecedential/Jones-Sailor_Geraldine_AT-0752-17-0280-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERALDINE JONES-SAILOR,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-17-0280-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jerry Girly , Esquire, Orlando, Florida, for the appellant.
Kathleen Harne , Esquire, Washington, D.C., for the agency.
Lee R. Jones , Kansas City, Kansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary retirement appeal for lack of jurisdiction. On
petition for review, the appellant challenges the administrative judge’s
jurisdictional finding, arguing that she made erroneous findings of fact and
improperly interpreted statutes. Generally, we grant petitions such as this one
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).
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 regarding the appellant’s claims
that her retirement was coerced by the agency’s unjustified failure to
accommodate her disability and by sexual harassment, we AFFIRM the initial
decision.
¶2The appellant was employed as a GS-11 Correctional Treatment Specialist
(Case Manager) at a Bureau of Prisons correctional facility where she had been
employed since 1985. Hearing Transcript (HT) at 7 (testimony of the appellant).
Her position was designated as a law enforcement position. Initial Appeal File
(IAF), Tab 12, Appellant’s Exhibit C. Case Managers were generally assigned to
units on the same floor as the inmates whose cases they managed. However, the
appellant was assigned to a unit on the first floor, even though the inmates whose
cases she managed were housed on the second floor, and they were required to be
brought to her when she needed to see them. This arrangement was based on an
informal accommodation due to the appellant’s claimed difficulty in navigating
stairs as a result of an injury she suffered to her neck, shoulder, and back. IAF,
Tab 6 at 36-37 (Final Agency Decision (FAD)).2
¶3When a new supervisor arrived in August 2014, he informed the appellant
that her informal accommodation had expired and that she would have to move
her office to the second floor or provide updated medical documentation. IAF,
Tab 19 at 75-76; Tab 17 at 18. In response, the appellant submitted a Department
of Justice (DOJ) Form 100A, Request for Reasonable Accommodation, asking to
work in a lower level building “to avoid health damage to [her] physical body and
mental well- being” and stating that she was unable to climb stairs and lift over
10 pounds. IAF, Tab 12, Appellant’s Exhibit I. In support of her request, she
submitted a September 15, 2014 form from a treating physician, stating that the
appellant had suffered an injury to her shoulder, neck, and back and seeking the
same accommodations. Id., Appellant’s Exhibit H. The appellant’s supervisor
responded by requesting additional specific information from the appellant’s
physician. Id., Appellant’s Exhibit J. The appellant then submitted another DOJ
Form 100A requesting the same accommodations, id., Appellant’s Exhibit K,
accompanied by a November 4, 2014 supporting letter from her physician, asking
for the same accommodations for 12 weeks and indicating that the appellant
would be reassessed at the end of that period, id., Appellant’s Exhibit L. On
November 19, 2014, the appellant’s supervisor officially denied her reasonable
accommodation request as not supported by documentation, medical or otherwise,
and also stated that her requested accommodation would be ineffective, cause the
agency undue hardship, and remove essential functions from her law enforcement
position. Id., Appellant’s Exhibit M.
¶4On December 8, 2014, the appellant filed an equal employment opportunity
(EEO) complaint based on sex, age, disability (physical/mental), and reprisal in
which she challenged a number of agency actions.2 IAF, Tab 6 at 34-35 (FAD).
She later amended her complaint to include the matter that is the subject of this
appeal. On January 21, 2015, the agency directed the appellant to report for a
2 The appellant did not return to work beginning in late September 2014 and continuing
until the action here under review and was carried as absent without leave during this
time. IAF, Tab 7 at 33-51; Tab 19 at 19.3
fitness-for-duty examination to determine if she was medically able to perform
the duties of her position. IAF, Tab 19 at 59. She reported for the examination
but left before it was conducted. HT at 53 (testimony of the appellant). On
May 13, 2015, the appellant submitted paperwork to retire, providing, as the
reason, that “[management] continues to retaliate and discriminate against me.”
IAF, Tab 6 at 222. The action was effective on May 29, 2015. IAF, Tab 7 at 7.
The agency issued its FAD on the appellant’s EEO complaint on January 23,
2017, finding that she had not established any of her claims. IAF, Tab 6 at 35-62.
On appeal from that decision, the appellant challenged her retirement as
involuntary, IAF, Tab 1 at 2, and requested a hearing, id. at 1.
¶5The administrative judge issued an Order on Jurisdiction and Proof
Requirements regarding appeals of alleged involuntary actions, IAF, Tab 3, to
which the appellant responded, IAF, Tab 8. On review of the parties’
submissions, the administrative judge determined that the appellant was entitled
to a jurisdictional hearing which was duly scheduled and convened. IAF, Tab 9
at 1. Thereafter, the administrative judge issued an initial decision in which she
dismissed the appeal for lack of jurisdiction. IAF, Tab 30, Initial Decision (ID)
at 1, 11. The administrative judge considered the incidents upon which the
appellant relied in support of her claim, but found that a reasonable person in the
appellant’s position would not have felt compelled to retire under the
circumstances. ID at 611. The appellant has filed a petition for review, to which
the agency has not responded.3 Petition for Review (PFR) File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6Generally, an appellant may overcome the presumption that a retirement is
voluntary by showing that it resulted from misinformation or deception by the
3 With her petition for review, the appellant has submitted a copy of the hearing
transcript, Petition for Review File, Tab 3, not certified by the court
reporter, id. at 411. We have not considered it, but rather have considered the certified
copy provided to the Board by the court reporter as it constitutes the official hearing
record. 5 C.F.R. § 1201.53(b).4
agency or was the product of coercion by the agency. Terban v. Department of
Energy, 216 F.3d 1021, 1024 (Fed. Cir 2000). The touchstone of the
“voluntariness” is whether, considering the totality of the circumstances, factors
operated on the employee’s decision-making process that deprived her of freedom
of choice. Coufal v. Department of Justice , 98 M.S.P.R. 31, ¶ 22 (2004); Heining
v. General Services Administration , 68 M.S.P.R. 513, 519-20 (1995). Therefore,
in order to establish involuntariness on the basis of coercion, an appellant must
show that the agency effectively imposed the terms of the retirement, that she had
no realistic alternative but to retire, and that the retirement was the result of
improper acts by the agency. The Board will find a retirement involuntary when
the employee demonstrates that the employer engaged in a course of action that
made working conditions so difficult or unpleasant that a reasonable person in
that employee’s position would have felt compelled to retire. Markon v.
Department of State , 71 M.S.P.R. 574, 577-78 (1996). This mode of analysis
remains appropriate when the appellant’s appeal is from an agency’s FAD based
on the employee’s underlying complaint in which she claims that her retirement
was involuntary based on discrimination. See, e.g., Williams v. Department of
Agriculture, 106 M.S.P.R. 677, ¶¶ 10-11 (2007). When allegations of
discrimination and reprisal for prior EEO activity are made in connection with a
claim of involuntariness, such allegations may only be addressed insofar as they
relate to the issue of voluntariness and not whether they would establish
discrimination or reprisal as an affirmative defense. Pickens v. Social Security
Administration, 88 M.S.P.R. 525, ¶ 6 (2001). Thus, evidence of discrimination or
reprisal goes to the ultimate question of coercion. Id.
¶7The appellant first challenges the administrative judge’s finding that,
because the appellant’s requested accommodation would eliminate the essential
functions of her position, there was no reasonable accommodation available. ID
at 8. The appellant asserts that she is physically able to perform her duties and
that she did so successfully under the accommodation before her new supervisor5
arrived. PFR File, Tab 1 at 9. However, the issue in this case is not whether the
agency was required to grant the appellant’s requested accommodation, but rather
the extent to which the agency’s failure to continue her informal accommodation
was a factor in her decision to retire. Pickens, 88 M.S.P.R. 525, ¶ 6. Chapter 75
jurisdiction may be established over a disability retirement if the agency
unjustifiably refused to offer the employee a reasonable accommodation that
would have allowed her to continue working. PFR File, Tab 1 at 9-10; see
SanSoucie v. Department of Agriculture , 116 M.S.P.R. 149, ¶ 15 (2011); Nordhoff
v. Department of the Navy , 78 M.S.P.R. 88, 91 (1998), aff’d, 185 F.3d 886 (Fed.
Cir. 1999) (Table). We disagree, however, that the analysis in this appeal should
be restricted to that applicable in disability retirement situations because the
appellant did not, in fact, retire on disability.4 We therefore modify the initial
decision to the extent the administrative judge applied the standard for disability
retirements to the instant case. ID at 7. Nevertheless, we understand the
appellant’s broader point that the administrative judge failed to make a sufficient
analysis of her claim that her retirement was coerced by the agency’s unjustified
failure to accommodate her disability.
¶8We agree with the appellant that the administrative judge did not
sufficiently analyze this claim. The administrative judge noted that, in support of
her claim, the appellant testified that she is physically able to perform the duties
of her position as a Case Manager but that her medical restrictions require she
stay on the first floor, not climb stairs, and not lift or pull more than 10 pounds.
ID at 7; HT (testimony of the appellant). The administrative judge noted that, in
addition to the duties pertaining to appellant’s position as a Case Manager, such
as counseling inmates and implementing and monitoring their treatment plans, the
4 We note that we use the term “restricted” because that is just what the Nordhoff line of
cases does; it restricts chapter 75 jurisdiction over disability retirements to situations in
which reasonable accommodation was available. Okleson v. U.S. Postal Service ,
90 M.S.P.R. 415, ¶ 7 (2001). Thus, even if we were to apply this standard to the
appellant’s case, it would not inure to her benefit.6
appellant was also required to perform law enforcement functions and respond to
emergencies when needed. Citing to the appellant’s position description, the
administrative judge found that the appellant’s medical limitations required more
than a modification of her working conditions. ID at 8. The administrative judge
concluded that, if the appellant could not perform her law enforcement duties,
there was no reasonable accommodation available because she could not perform
the essential functions of her position. Id. However, as raised by the appellant
on review, the administrative judge did not address the fact that the appellant had
been performing her Case Manager duties successfully for some time with the
informal accommodation, that she could climb stairs if necessary, and that she
had responded to emergency alarms as necessary. PFR File, Tab 3 at 5-7, 9; HT
at 82, 84, 112 (testimony of the appellant). We find the agency’s explanation for
denying the appellant a reasonable accommodation in denying her request to work
on the first floor to be unpersuasive. Notwithstanding the agency's unpersuasive
analysis in this regard, the agency’s shortcomings in the reasonable
accommodation process are simply a factor to be considered in assessing whether
a resignation was involuntary. Brown v. U.S. Postal Service , 115 M.S.P.R. 609,
¶ 16, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). The Board examines the totality
of the circumstances under an objective standard to determine voluntariness and
does not rely on the employee’s purely subjective evaluation. Coufal,
98 M.S.P.R. 31, ¶ 22. As further explained below, the appellant has not shown
that this rendered her working conditions so intolerable that a reasonable person
in her position would have felt compelled to resign. See Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501, ¶ 26 (2007) (finding that, although an agency
official may have caused the appellant apprehension and exacerbated his medical
ailments, the appellant failed to establish that his working conditions were so
intolerable that a reasonable person in his position would have felt compelled to
retire).7
¶9The appellant also argues on review that she was placed in an absent
without leave status because she was sent home for her own safety. PFR File,
Tab 3 at 6-7. She alleges that she refused to take any form of personal leave
because she had been able to perform the duties of her Case Manager position
with an accommodation. While a resignation or retirement procured in violation
of the regulations for granting leave may be coercive, the appellant did not assert
that she was denied any request to use leave. Cf. Landahl v. Department of
Commerce, 83 M.S.P.R. 40, ¶¶ 7-11 (1999) (finding a nonfrivolous allegation of
involuntariness based on the appellant's claim that the agency coerced his
resignation by violating the regulations for granting leave under the Family and
Medical Leave Act of 1993). Moreover, to the extent that the appellant’s claim
might have formed the basis for a constructive suspension appeal, there is no
indication that she filed any such appeal. See Schultz v. U.S. Postal Service ,
78 M.S.P.R. 159, 163 (1998) (holding that, if a disabled employee who is absent
from work requests to return with altered duties or working conditions, and if
there was a reasonable accommodation available that the agency was bound by
the Rehabilitation Act to offer but did not, the employee’s absence becomes a
constructive suspension).
¶10Further, the appellant reiterates on review her allegations that she was
subjected to sexual harassment by male inmates and that the agency took no steps
to remedy the situation. PFR File, Tab 3 at 10-12. We modify the initial decision
to further address the appellant’s assertions. In support of these allegations, the
appellant notes that the agency settled a class action suit about the rampant sexual
harassment that occurred in that facility. Id. at 11. The administrative judge
considered the appellant’s testimony that inmates would make cat calls towards
her, use offensive and crude language, and expose themselves. ID at 9 & n.8.
However, the administrative judge found that a reasonable person in the
appellant’s position—a Case Manager with over 29 years of experience with the
Federal Bureau of Prisons—would not have felt compelled to retire. ID at 10.8
While the appellant has raised serious allegations of sexual harassment, we
ultimately agree with the administrative judge’s conclusion. In relevant part, the
appellant has not alleged that the harassment she endured escalated to a level that
potentially endangered her safety. See Bates v. Department of Justice ,
70 M.S.P.R. 659, 671-72 (1996) (finding that the appellant was effectively
coerced into resigning by the continuous and unredressed pattern of harassment,
which had escalated to a level potentially endangering her safety). While the
appellant may have been subjected to stressful working conditions, it is
well-settled that an employee is not guaranteed a stress-free work environment
and difficult or unpleasant working conditions generally are not so intolerable as
to compel a reasonable person to resign. Miller v. Department of Defense ,
85 M.S.P.R. 310, ¶ 32 (2000).
¶11Considering all of the evidence together, we find that the appellant’s
retirement was precipitated by several factors, some of which were the result of
wrongful agency actions and some of which were not. Nevertheless, in the final
analysis, we agree with the administrative judge that this case turns on the
voluntariness element, i.e., whether the appellant had a meaningful choice in her
retirement. See Coufal, 98 M.S.P.R. 31, ¶ 22. We further agree with the
administrative judge that the appellant failed to establish this element.
¶12Although the appellant’s retirement was precipitated in part by the agency’s
wrongful actions in connection with her reasonable accommodation request, the
combined circumstances were not of the nature and severity that would have
made a reasonable person in the appellant’s situation believe that she had no
realistic alternative but to retire. While a reasonable person might have felt that
retirement was her best option, she would not have felt that it was her only
option. See Lawson v. U.S. Postal Service , 68 M.S.P.R. 345, 350 (1995)
(finding that the fact that an employee is faced with an inherently unpleasant
situation or that her choices are limited to unpleasant alternatives does not make
her decision involuntary). Moreover, the most probative evidence of9
involuntariness will usually be evidence in which there is a relatively short period
of time between the employer’s alleged coercive act and the employee’s
retirement. Terban, 216 F.3d at 1024. In the instant case, the appellant has not
established any precipitating event that occurred relatively close in time to the
retirement that would have given a reasonable employee no choice but to retire.
See id. at 1025; cf. Bates, 70 M.S.P.R. at 671-72 (while the Board considered
evidence of a 5-year period of harassment, that evidence only served to put into
context the life-endangering incident that precipitated her retirement). The length
of time between which the appellant filed her EEO complaint and then retired
also undermines her claim that her retirement was involuntary due to intolerable
working conditions. The appellant initially raised allegations of discrimination
on December 8, 2014, when she filed her EEO complaint, but she did not file an
application for retirement until May 13, 2015. IAF, Tab 6 at 34-35, 222. This
5-month lapse of time undercuts the appellant’s assertion that her working
conditions were so intolerable as to have compelled her retirement. Searcy v.
Department of Commerce , 114 M.S.P.R. 281, ¶ 13 (2010).
¶13We therefore find that the appellant’s retirement was not involuntary and
that she has not established jurisdiction over her retirement as a constructive
removal under 5 U.S.C. chapter 75.5
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
5 Because the appellant raised a claim of disability discrimination in this constructive
removal 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).
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
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 particular11
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 . 12
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 of13
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. 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 | Jones-Sailor_Geraldine_AT-0752-17-0280-I-1__Final_Order.pdf | 2024-05-01 | null | AT-0752-17-0280-I-1 | NP |
1,588 | https://www.mspb.gov/decisions/nonprecedential/Harris_Charles_J_DC-3443-19-0533-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES JAMES HARRIS, III,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3443-19-0533-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles James Harris, III , Alexandria, Virginia, pro se.
Luis R. Amadeo Carron , Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal concerning the nature of his appointment for lack of
jurisdiction. On petition for review, the appellant argues that he was misled into
believing that his position was a career appointment and claims that he was
entitled to a hearing. 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 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 | Harris_Charles_J_DC-3443-19-0533-I-1__Final_Order.pdf | 2024-05-01 | null | DC-3443-19-0533-I-1 | NP |
1,589 | https://www.mspb.gov/decisions/nonprecedential/Harris_Charles_J_DC-3443-19-0532-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES JAMES HARRIS, III,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3443-19-0532-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles James Harris, III , Alexandria, Virginia, pro se.
Karyn Brunson and Luis R. Amadeo Carron , Fort Belvoir, Virginia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal challenging his performance rating for lack of jurisdiction.
On petition for review, the appellant argues that he deserved a higher
performance rating and that he was entitled to a hearing. Generally, we grant
petitions such as this one only in the following circumstances: the initial 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).
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. 4
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 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 | Harris_Charles_J_DC-3443-19-0532-I-1__Final_Order.pdf | 2024-05-01 | null | DC-3443-19-0532-I-1 | NP |
1,590 | https://www.mspb.gov/decisions/nonprecedential/Amang_BoliongDC-315H-19-0444-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BOLIONG AMANG,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-315H-19-0444-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Boliong Amang , Baltimore, Maryland, pro se.
Matthew B. Hawkins , Esquire, and Meghan Stoltzfus , Dahlgren, Virginia,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his 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 or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course 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).
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 the initial decision, the administrative judge concluded that the Board
lacked jurisdiction over the appellant’s appeal because he failed to prove that he
was an “employee” under 5 U.S.C. § 7511(a)(1). Initial Appeal File (IAF), Tab
5, Initial Decision (ID) at 4-5. In making that finding, the administrative judge
assumed that the appellant was in the competitive service. ID at 4; IAF, Tab 3.
This assumption appears to be correct. However, to the extent the appellant was
in the excepted service, his concession that he was serving in a probationary
period with 8 months of Federal service, IAF, Tab 1 at 1, 4, indicates that he
would fail to meet any of the statutory definitions of an “employee” for either the
competitive or excepted service, 5 U.S.C. § 7511(a)(1)(A)-(C).
Regarding the appellant’s whistleblower reprisal claim, the administrative
judge correctly found that the appellant was required, and failed, to exhaust his
administrative remedy with the Office of Special Counsel (OSC). ID at 5-6.2
Should the appellant decide to seek redress from OSC, he may then file an
individual right of action appeal with the Board consistent with its regulations.
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).
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 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. 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
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 | Amang_BoliongDC-315H-19-0444-I-1__Final_Order.pdf | 2024-05-01 | BOLIONG AMANG v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-315H-19-0444-I-1, May 1, 2024 | DC-315H-19-0444-I-1 | NP |
1,591 | https://www.mspb.gov/decisions/nonprecedential/Jackson_ChristopherDA-1221-20-0313-W-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER JACKSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-1221-20-0313-W-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Jackson , Manvel, Texas, pro se.
Arthur M. Whitman , Esquire, and Maria Lerma , Houston, Texas, for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied corrective action in his individual right of action (IRA) appeal. On
petition for review, the appellant argues the following: (1) the administrative
judge denied him the opportunity to engage in discovery; (2) the administrative
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).
judge improperly relied on hearsay evidence; (3) the agency violated a union
agreement; and (4) the agency failed to comply with Board regulations. Petition
for Review (PFR) File, Tab 1 at 4-8, Tab 4 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).
Under the Whistleblower Protection Enhancement Act of 2012, an
appellant may establish a prima facie case of retaliation for whistleblowing
disclosures and/or protected activity by proving by preponderant evidence3 that
(1) he 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 whistleblowing disclosure or protected activity was a contributing
factor in the agency’s decision to take a personnel action against him. 5 U.S.C.
2 As noted by the appellant in his reply, PFR File, Tab 4 at 4, the agency states in its
response that the “[a]ppellant fail[ed] to allege a nonfrivolous claim that would give the
Board jurisdiction over this case,” PFR File, Tab 3 at 4. We surmise that this statement
was made in error; however, to the extent the agency is challenging the administrative
judge’s conclusion regarding jurisdiction, a different outcome is not warranted.
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).2
§ 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, the agency is given an opportunity
to prove, by clear and convincing evidence,4 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); Webb, 122 M.S.P.R. 248, ¶ 6. 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 otherwise
similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999).
Here, the administrative judge concluded that the appellant made a prima
facie case of whistleblower retaliation. Initial Appeal File (IAF), Tab 35, Initial
Decision (ID) at 6-9. To this end, she found that he had engaged in protected
activity under 5 U.S.C. § 2302(b)(9) insofar as he had filed a 2018 complaint with
the Office of Special Counsel (OSC). ID at 6. She also found that he had shown
vis-à-vis the knowledge/timing test5 that his protected activity had contributed to
the following: (1) a June 2019 detail; (2) a June 2019 no contact order; (3) a
December 23, 2019 reassignment; and (4) the agency’s denial of his request to
serve as an interim supervisor between January 2019 and February 3, 2020. ID
at 3-4, 6-9. She concluded, however, that the agency had met its burden of
4 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established. It is
a higher standard than preponderant evidence. 5 C.F.R. § 1209.4(e).
5 The knowledge/timing test allows an employee to demonstrate that a protected
disclosure/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, 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 . Carey v. Department of Veterans Affairs , 93 M.S.P.R.
676, ¶ 11 (2003).3
showing by clear and convincing evidence that it would have taken all of these
actions absent the appellant’s protected activity. ID at 9 -13. In so concluding,
she found, based largely on witness testimony, that agency officials did not have
a strong motive to retaliate against the appellant and had presented strong reasons
for taking the subject actions. ID at 10-13. To this end, she recounted the
testimony of agency management officials who explained that the appellant’s
behavior had contributed to a toxic work environment and had rendered certain
agency employees fearful of him, which complicated his placement at the agency.
ID at 11-13.
On review, the appellant avers that he was “denied discovery information”
that would have helped his case. PFR File, Tab 1 at 7-8. This assertion,
however, does not warrant a different outcome. Indeed, the record reflects that,
because the appellant here failed to timely initiate discovery, the agency did not
respond to his discovery requests. IAF, Tab 25 at 5 n.4. To the extent the
appellant believed that his requests were timely or that the agency otherwise
should have provided him with the information he sought, he could have filed a
motion to compel; however, he did not. See Szejner v. Office of Personnel
Management, 99 M.S.P.R. 275, ¶ 5 (2005) (stating that, if an appellant fails to file
a motion to compel before the administrative judge, the appellant is precluded
from raising discovery issues for the first time on review), aff’d, 167 F. App’x
217 (Fed. Cir. 2006); 5 C.F.R. § 1201.73(c). Thus, the appellant’s assertion is
unavailing.
The appellant contends that the administrative judge erroneously
considered hearsay evidence. PFR File, Tab 1 at 4-5. Specifically, he alleges
that the administrative judge improperly relied on statements made by agency
employees regarding their apparent fear of him. Id. He avers that these
individuals harbored a grudge against him and were “not on the witness list.” Id.
at 5. Relevant hearsay evidence, however, is admissible in Board proceedings.
Hidalgo v. Department of Justice , 93 M.S.P.R. 645, ¶ 20 (2003). Moreover, to4
the extent the appellant wanted the subject individuals to testify at the hearing, he
could have listed them as witnesses; however, he did not.6 IAF, Tab 25 at 6; see
Lohr v. Department of the Air Force , 24 M.S.P.R. 383, 386 (1984) (reasoning that
an appellant was not deprived of the right to question a witness when he could
have requested and/or subpoenaed the witness but failed to do so). Thus, a
different outcome is not warranted.
The appellant contends that the agency violated specific provisions of a
union agreement. PFR File, Tab 1 at 5-7. He seemingly argues that the agency’s
failure to comply with these provisions is indicative of malfeasance and
retaliatory animus. Id. We find this argument unavailing. The appellant did not
discernably raise this specific claim before the administrative judge and has failed
to demonstrate that it is based on new and material evidence that previously was
unavailable to him despite due diligence. See Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board generally will not
consider an argument raised for the first time on review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence). Moreover, the argument does not provide a basis to disturb the
administrative judge’s conclusion, based largely on credibility determinations,
that the agency showed by clear and convincing evidence that it would have taken
all of the personnel actions at issue in this matter absent the appellant’s protected
activity. ID at 9-13; see Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002) (holding 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).
6 The record reflects that the agency requested two of these individuals as witnesses, but
the administrative judge denied the agency’s request, finding that their testimony would
be of limited relevance. IAF, Tab 25 at 6. Despite being provided an opportunity to do
so, id. at 6-7, the appellant did not object to this finding or otherwise seek the testimony
of these witnesses, see Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988 )
(stating that an appellant’s failure to timely object to rulings on witnesses precludes the
appellant from doing so on petition for review).5
Lastly, in his reply, the appellant asserts that the agency failed to comply
with the Board’s regulations. PFR File, Tab 4 at 4. In particular, he argues that
the agency filed its response to his petition for review 1 day late. Id. We
disagree. Board regulations provide that, if the date that ordinarily would be the
last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing
period will include the first workday after that date. 5 C.F.R. § 1201.23. Here,
the agency’s response was due on a Sunday; accordingly, the agency permissibly
filed the same the following workday. PFR File, Tab 2 at 1, Tab 3. Moreover,
even if the agency’s response had been untimely, the agency’s tardiness would
not entitle the appellant to corrective action or otherwise warrant a different
outcome.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS7
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
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.6
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 obtain7
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 8
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.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
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. 9
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 | Jackson_ChristopherDA-1221-20-0313-W-1__Final Order.pdf | 2024-05-01 | CHRISTOPHER JACKSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-1221-20-0313-W-1, May 1, 2024 | DA-1221-20-0313-W-1 | NP |
1,592 | https://www.mspb.gov/decisions/nonprecedential/Hendy_David_M_CH-1221-18-0114-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. HENDY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-18-0114-W-1
DATE: May 1, 2024
THIS ORDER IS NONPRECEDENTIAL1
David M. Hendy , Chicago, Illinois, pro se.
Zane Perry Schmeeckle , Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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. We
VACATE the initial decision and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
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
Effective June 8, 2016, the appellant resigned from his Industrial Hygienist
position at the agency’s Hines Veterans Affairs (VA) Hospital in Hines, Illinois,
to receive treatment for service-connected injuries. Initial Appeal File (IAF),
Tab 1 at 1-2, Tab 6 at 83. On or around that same day, the appellant met with a
Special Agent in the agency’s Office of Inspector General (OIG) to discuss,
among other things, various safety concerns regarding the facilities and
infrastructure of the Hines VA Hospital that he had identified in his Industrial
Hygienist position. IAF, Tab 6 at 115. The appellant thereafter applied for 5
agency positions in 2016 and 2017, but he was not selected for any positions.
E.g., IAF, Tab 1 at 2, 8-9, 14-22, Tab 6 at 1-2, 7, 26, 56.
On December 14, 2017, the appellant filed this IRA appeal with the Board,
and he requested a hearing. IAF, Tab 1 at 1-3. In an Order on Jurisdiction and
Proof Requirements, the administrative judge informed the appellant that there
was a question whether the Board has jurisdiction over this appeal, apprised him
of the elements and burden of proving jurisdiction in an IRA appeal, and ordered
him to file a statement with accompanying evidence on the jurisdictional issue.
IAF, Tab 3.
In response, the appellant submitted letters from the Office of Special
Counsel (OSC) concerning a complaint that he had filed against the agency. IAF,
Tab 9 at 19-21, Tab 12 at 26-28. In a January 11, 2018 letter, OSC informed the
appellant of its preliminary determination to close its inquiry into his complaint.
IAF, Tab 9 at 19-21. In February 15, 2018 letters, OSC notified the appellant of
its final determination to close its inquiry into his complaint and apprised him of
the right to file an IRA appeal seeking corrective action from the Board for
alleged prohibited personnel practices under 5 U.S.C. § 2302(b)(8) and (b)(9).
IAF, Tab 12 at 26-28. In pertinent part, OSC described his complaint as alleging
that, in his Industrial Hygienist position, he reported safety violations
(specifically “mold issues”) to agency officials and to the agency’s OIG. IAF,2
Tab 9 at 19-20. OSC also noted that the appellant provided a Report of Contact
that was signed by his supervisor, and he alleged that his supervisor falsified and
submitted this report to human resources to block his selection for any positions
for which he had applied. IAF, Tab 9 at 23, Tab 12 at 27.
The appellant asserted in response to the jurisdiction order that the agency
perceived him as a whistleblower because he, among other things, (1) reported
insufficient resources for the Industrial Hygienist position, (2) complained that
his veterans’ preference rights were being violated, (3) filed an OIG complaint
that resulted in an investigation, (4) conducted a preliminary investigation into an
ongoing mold problem, (5) documented exposure to mold, asbestos, and
unsanitary conditions, and (6) reported safety issues concerning a steam tunnel
system and environmental and safety hazards concerning a hazardous waste shed.
IAF, Tab 6 at 1-23, Tab 9 at 1-13, Tab 10 at 1-13. He also claimed that he was
perceived as a whistleblower because he previously raised a whistleblower
reprisal claim against the Jesse Brown VA Medical Center in a prior OSC
complaint1 and Board appeal.2 IAF, Tab 6 at 3, 8, 10-14, 18, 20, 22-23, Tab 9
at 5, 8, Tab 10 at 4. The appellant alleged that because he was perceived as a
whistleblower, the agency did not select him for various positions in 2016 and
2017, his supervisor falsified a Report of Contact and subjected him to a hostile
work environment (including a change in working conditions and harassment),
and a Director canceled a meeting with him. IAF, Tab 6 at 1-23, Tab 9 at 1-13,
Tab 10 at 1-13. The agency requested the Board to dismiss this appeal for lack of
jurisdiction. IAF, Tab 8 at 4-5, 9.
1 The appellant asserted that his prior OSC complaint was filed on August 23, 2013, and
was closed on February 25, 2014. IAF, Tab 6 at 2, 122.
2 The appellant’s prior Board appeal against the agency concerned his probationary
termination from a position at the Jesse Brown VA Medical Center, and it was
dismissed as settled. David Hendy v. Department of Veterans Affairs , MSPB Docket
No. CH-315H-13-4605-I-2, Final Order (Feb. 19, 2015).3
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing this appeal for lack of jurisdiction because the
appellant failed to prove that he exhausted his administrative remedies before
OSC.3 IAF, Tab 13, Initial Decision (ID) at 1, 3-6.
The appellant has filed a petition for review and several supplemental
submissions, the agency has filed a response, and the appellant has filed a reply
brief. Petition for Review (PFR) File, Tabs 6-27, 30, 35.
The appellant has filed a motion to waive the time limit for filing a petition
for review. PFR File, Tab 28. Because the Clerk of the Board granted his two
requests for an extension of time to file a perfected petition for review, PFR File,
Tabs 2-5, we find that his PFR and supplemental submissions were timely filed.
Accordingly, we deny his motion to waive the filing deadline.
The appellant also has filed a motion to waive the time limit for filing a
reply to the agency’s response. PFR File, Tab 35 at 5, Tab 36. We find good
cause to grant his motion based on his explanation and supporting medical
documentation concerning his medical conditions during the relevant time frame,
which resulted in a brief 10-day delay in filing his reply. See Lacy v. Department
of the Navy, 78 M.S.P.R. 434, 437 (1998) (explaining that the Board will find
good cause for waiver of its filing time limits when a party demonstrates that he
suffered from an illness that affected his ability to file on time); see also 5 C.F.R.
§ 1201.114(g).
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
3 To the extent this appeal may have been prematurely filed on December 14, 2017,
IAF, Tab 1, it became ripe for adjudication when OSC issued its February 15, 2018
close-out letter, IAF, Tab 12 at 27-28; see e.g., Jundt v. Department of Veterans Affairs ,
113 M.S.P.R. 688, ¶ 7 (2010) (stating that it is the Board’s practice to adjudicate an
appeal that was premature when it was filed but became ripe when pending before the
Board). 4
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). To establish jurisdiction in a
typical IRA appeal under the Whistleblower Protection Enhancement Act of 2012
(WPEA), an appellant must prove by preponderant evidence4 that he exhausted
his administrative remedies before OSC and make nonfrivolous allegations5 that
(1) he 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). 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, 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 following reasons,
we find that the appellant has established jurisdiction over this IRA appeal.
The appellant proved by preponderant evidence that he 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” through an
IRA appeal. Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3,
¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). 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). To satisfy this requirement, an
appellant must provide to OSC a sufficient basis to pursue an investigation that
4 A preponderance of the 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).5
might lead to corrective action. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10.
The appellant did not provide a copy of his OSC complaint or any of his
written correspondence to OSC, nor did he submit an affidavit, sworn statement,
or declaration under penalty of perjury explaining what claims he raised before
OSC. Instead, as described above, the appellant submitted correspondence from
OSC that identified the claims that he raised in his complaint. IAF, Tab 9
at 19-21, Tab 12 at 26-28. Although OSC’s characterizations of the appellant’s
allegations are not binding on the Board, Bloom v. Department of the Army ,
101 M.S.P.R. 79, ¶ 10 (2006), the appellant does not dispute OSC’s
characterizations of his allegations. Therefore, we have only considered OSC’s
characterization of the appellant’s claims as part of our exhaustion analysis.
In his petition for review, the appellant cites Briley v. National Archives
and Records Administration , 236 F.3d 1373 (Fed. Cir. 2001), to support his
argument that he exhausted his OSC remedies because he gave OSC information
containing the core of his retaliation claim and a sufficient basis to conduct an
investigation. PFR File, Tab 6 at 15-17. We agree.
Based on the OSC letters described above, we find that the appellant made
a reasonably clear and precise claim with OSC that his nonselections in 2016 and
2017 and his supervisor’s Report of Contact were taken in retaliation for
reporting safety violations at the Hines VA Hospital to agency officials and to the
agency’s OIG, and thus, OSC had a sufficient factual basis to pursue an
investigation. IAF, Tab 9 at 19-21, Tab 12 at 26-28. Therefore, we find that the
appellant met his burden of proving by preponderant evidence that he exhausted
his administrative remedies regarding these claims.
However, we find that the appellant failed to prove exhaustion regarding
the additional reprisal claims raised in this appeal. In particular, the OSC letters
do not mention any allegedly retaliatory agency actions other than the appellant’s
nonselections and the Report of Contact, any claim that he was perceived as a6
whistleblower or that he reported insufficient resources for his Industrial
Hygienist position, or any allegations concerning his prior whistleblowing
disclosures at the Jesse Brown VA Medical Center or his prior Board appeal.
OSC’s January 11, 2018 letter acknowledged that the appellant alleged that his
veterans’ preference rights may have been violated during the hiring process;
however, OSC did not indicate that he alleged reprisal for disclosing a violation
of such rights. IAF, Tab 9 at 20. Further, OSC’s statement in its February 15,
2018 letter that the appellant requested the closure letter of a prior OSC
complaint does not suggest that he alleged reprisal in this matter based on that
prior complaint. IAF, Tab 12 at 27.
With his petition for review, the appellant includes new evidence,
including, among other things, his March 8, 2018 and May 20, 2018 emails (in
which he asked OSC to reopen his complaint based on new information and
evidence), OSC’s May 21, 2018 response denying his request to reopen the
complaint and informing him that he could file a new complaint, and his May 8-9,
2018 emails (on which the OSC investigator was carbon copied) concerning his
new application for the Industrial Hygienist (Green Environmental Management
Systems (GEMS) Coordinator) position. PFR File, Tab 6 at 18-19, 29, Tab 23
at 10-22, 32-48. This evidence may be relevant to whether he exhausted a claim
of reprisal involving a nonselection for a position as an Industrial Hygienist
(GEMS Coordinator) in 2018. Because OSC closed his complaint regarding the
allegations in this matter on February 15, 2018, and the OSC investigator denied
his request to reopen his complaint, his subsequent communications with OSC
cannot serve to prove exhaustion of any additional claims before OSC.
For the first time on review, the appellant alleges that the agency retaliated
against him for “testifying or otherwise lawfully assisting any individual in the
exercise of any right such as himself making a [Department of Labor Veterans’
Employment and Training Service] complaint” and for “refusing to obey an order
that would require [him] to violate a law.” PFR File, Tab 6 at 10-11. Even if we7
construe his claim as an allegation of reprisal for activity protected by 5 U.S.C.
§ 2302(b)(9)(B) and/or (D), the appellant fares no better. Importantly, there is no
evidence that he exhausted such a claim with OSC, and he has not explained why
he was unable to raise this claim before the administrative judge. See Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (finding 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).
The appellant has nonfrivolously alleged that he made whistleblowing disclosures
and engaged in activity protected by 5 U.S.C. § 2302(b)(9)(C).
The next jurisdictional inquiry is whether the appellant has made a
nonfrivolous allegation that he made a whistleblowing disclosure or engaged in
protected activity. Corthell, 123 M.S.P.R. 417, ¶ 8. A nonfrivolous allegation of
a protected 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 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 appellant’s submissions are not a model of clarity. However, we have
identified the following disclosures of safety violations that he made at the Hines
VA Hospital: (1) he investigated and reported on an ongoing mold problem,
which showed that his supervisor, as the Safety Manager, was noncompliant with
Federal Health and Safety Program requirements and had ignored the problem for
months; (2) he reported mold growing on walls and entering the ventilation8
system and unsanitary conditions (specifically feces on the floors and toilets) in
Building 17; (3) he reported asbestos in Building 9, to which young children were
apparently exposed; (4) he reported that a dilapidated steam tunnel system
contained asbestos and posed a danger of steam leaks, and a contract providing
rescue services for the steam tunnel system was not in compliance with
Occupational Safety and Health Administration regulations; and (5) he reported
that his work-related injury was caused by his supervisor’s failure to fix problems
with a hazardous waste shed. IAF, Tab 6 at 3-4, 8-9, 16-17, 22, Tab 9 at 4, 8-9,
12-13, Tab 10 at 3-4, 11. The appellant further asserted that the information he
reported evidenced a violation of law, rule, or regulation, gross mismanagement,
a gross waste of funds, an abuse of authority, and a substantial and specific
danger to public health or safety . IAF, Tab 6 at 18.
We find that the appellant has nonfrivolously alleged that a reasonable
person in his position would believe that disclosures (1)-(5) evidenced violations
of a law, rule, or regulation and a substantial and specific danger to public health
or safety.6 See, e.g., Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 9
(2013) (finding that a reasonable person would believe that the appellant’s
alleged disclosures of improper evacuation signage and blocked exit access,
among other things, disclosed violations of Federal regulations regarding
maintaining a safe workplace); Wojcicki v. Department of the Air Force ,
72 M.S.P.R. 628, 634-35 (1996) (finding that the appellant reasonably believed
that he disclosed a substantial and specific danger to public health or safety when
he disclosed that problems with the sandblasting procedure and equipment were
exposing him and his coworkers to toxic dust). Indeed, in determining whether a
disclosure evidenced a substantial and specific danger to public health or safety,
6 The WPEA clarified, in relevant part, that a disclosure made to a supervisor or 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 is not excluded from 5 U.S.C.
§ 2302(b)(8). Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 6 n.1
(2016).9
it is relevant for the Board to consider factors such as (1) the likelihood of harm
resulting from the danger, (2) the imminence of the potential harm, and (3) the
nature of the potential harm. Parikh v. Department of Veterans Affairs ,
116 M.S.P.R. 197, ¶ 14 (2011). We further find that the appellant’s allegations of
safety issues are specific and, if true, would pose an immediate danger to the
health and safety of staff, patients, and visitors at the Hines VA Hospital.
We also find that the appellant has nonfrivolously alleged that a reasonable
person in his position would believe that disclosure (1), concerning an ongoing
mold problem, evidenced gross mismanagement by his supervisor. Gross
mismanagement means more than de minimis wrongdoing or negligence—it
means a management action or inaction that creates a substantial risk of
significant adverse impact on the agency’s ability to accomplish its mission.
Swanson v. General Services Administration , 110 M.S.P.R. 278, ¶ 11 (2008). If,
as the appellant alleges, his mold investigation showed that his supervisor had
ignored a serious, ongoing mold problem for months, e.g., IAF, Tab 6 at 3, 9,
16-17, a reasonable person could conclude that the appellant’s supervisor
committed an act of gross mismanagement undermining the agency’s ability to
perform its mission of treating patients. By contrast, the appellant has failed to
make a nonfrivolous allegation that a reasonable person in his position would
believe that disclosures (2)-(5) evidenced more than de minimis wrongdoing or
negligence by management that undermined the agency’s ability to accomplish its
mission.
We further find that the appellant has failed to make a nonfrivolous
allegation that a reasonable person in his position would believe that disclosures
(1)-(5) evidenced a gross waste of funds or an abuse of authority. A “gross waste
of funds” is defined as more than merely a debatable expenditure that is
significantly out of proportion to the benefit reasonably expected to accrue to the
Government. Mc Corcle v. Department of Agriculture , 98 M.S.P.R. 363, ¶ 23
(2005). An “abuse of authority” occurs when there is an arbitrary or capricious10
exercise of power by a Federal official or employee that adversely affects the
rights of any person or that results in personal gain or advantage to himself or to
preferred other persons. Id., ¶ 24. Here, the appellant’s alleged disclosures of
safety issues do not suggest that the agency wasted any funds. Further, a
reasonable person would not conclude that an arbitrary and capricious exercise of
power by an agency official or employee negatively affected any person’s rights
or resulted in personal gain or advantage to the agency official or to preferred
other persons.
Finally, “disclosing information to the Inspector General . . . of an
agency . . . in accordance with applicable provisions of law” is activity that is
protected by 5 U.S.C. § 2302(b)(9)(C). The appellant’s OIG complaint therefore
constitutes a nonfrivolous allegation of protected activity. IAF, Tab 6 at 115.
Having found that the appellant made a nonfrivolous allegation of a
whistleblowing disclosure and protected activity, we now turn to contributing
factor.
The appellant has made a nonfrivolous allegation that his whistleblowing
disclosures were a contributing factor in the 2016-2017 nonselections. 7
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 was one factor that tended to affect the personnel
action in any way. Salerno, 123 M.S.P.R. 230, ¶ 13. Under the
7 The appellant asserted that people at the Hines VA Hospital would have known about
his OIG complaint based on the OIG’s proximity to other offices and the OIG Special
Agent’s investigatory actions. IAF, Tab 9 at 7. This assertion is speculative because,
according to the appellant, the OIG Special Agent did not investigate his complaint for
fear of retaliation, and OIG closed the case approximately 1 week after the appellant
filed the complaint. IAF, Tab 6 at 9, 115. Thus, we find that the appellant has failed to
nonfrivolously allege that any agency employee had actual or constructive knowledge of
his OIG complaint, and he failed to satisfy the contributing factor criterion regarding
his OIG complaint. Cf. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 13
(2012) (finding that the appellant made a nonfrivolous allegation that her protected
disclosures were a contributing factor in the agency’s decision not to select her because
the selecting official based his decision, in part, on a recommendation from an
employee who knew about some of the appellant’s activities and disclosures).11
knowledge/timing test, an appellant 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. 5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R. 230, ¶ 13.
For the following reasons, we find that the appellant has nonfrivolously alleged
that disclosures (1)-(5) were a contributing factor in his 2016 and 2017
nonselections.8
Although the appellant has not specified exactly when he made disclosures
(1)-(5), it appears that he made them when he occupied the Industrial Hygienist
position at the Hines VA Hospital from December 2015 to June 2016. IAF, Tab 6
at 10-11, 26. Moreover, the nonselections occurred in 2016 and 2017. Therefore,
the timing component is satisfied. See Salerno, 123 M.S.P.R. 230, ¶ 14
(observing that a personnel action taken within approximately 1 to 2 years of the
disclosures satisfies the timing component of the knowledge/timing test).
Turning to the knowledge component, we find that the appellant has
nonfrivolously alleged that his supervisor had actual knowledge of disclosures
(1), (3), and (5). Notably, he alleged that his supervisor became “hot headed”
when he began investigating the ongoing mold problem, he emailed her about
asbestos in Building 9, and he felt threatened by her demeanor and statements
when he reported that he was injured because she did not fix the hazardous waste
shed. IAF, Tab 6 at 22, Tab 9 at 12, Tab 10 at 4. We further find that the Human
Resources Officer (HRO) had knowledge of disclosure (2) because the appellant
8 A nonselection is a personnel action. King v. Department of the Army , 116 M.S.P.R.
689, ¶ 10 (2011). However, we find that the appellant has failed to nonfrivolously
allege that his supervisor’s Report of Contact, which does not suggest disciplinary or
corrective action, is a personnel action under 5 U.S.C. § 2302(a)(2)(A). IAF, Tab 9
at 23. To the extent the appellant argued below that the Report of Contact was part of a
pattern of harassment that created a hostile work environment, IAF, Tab 10 at 1, he has
failed to prove that he exhausted his administrative remedies regarding such a claim,
supra, ¶ 15. 12
asserted that he reacted in an “unforgiving manner” to his report of mold and
unsanitary conditions in Building 17 (the Human Resources building). IAF,
Tab 9 at 8. Regarding disclosure (4), the appellant alleged that he was
“threatened” by the Supervisor for Fire Safety for making such a disclosure to
agency leadership. Id. at 9.
There are other ways to satisfy contributing factor. For example, an
appellant can show that a protected disclosure was a contributing factor in a
personnel action by proving that the official taking the action had constructive
knowledge of the protected disclosure. Bradley v. Department of Homeland
Security, 123 M.S.P.R. 547, ¶ 15 (2016). An appellant may establish an official’s
constructive knowledge of a whistleblowing disclosure by demonstrating that an
individual with actual knowledge of the disclosure influenced the official accused
of taking the retaliatory action. Id. When the personnel action is a nonselection,
evidence concerning who was involved in the selection process, what they knew
about the appellant’s whistleblowing disclosures, and who may have influenced
their decision is exclusively without the agency’s possession. Id., ¶ 16.
Therefore, at this stage, the appellant can meet his burden of proof without
specifically identifying which management officials were responsible for the
reprisal. Id.
Here, however, the appellant asserted that the HRO, as the most senior
Human Resources manager at the facility, was the “gatekeeper” for jobs, was a
“key decision maker for accepting or forwarding application[s] to appropriate
officials,” and had the “authority to recommend [applicants] [and the]
responsibility to forward veteran applicants.” IAF, Tab 9 at 2, 4, Tab 10 at 6,
8-9. The appellant further alleged that the HRO “deceived” him regarding his
veterans’ preference rights and wrongfully influenced an acting hiring manager
who interviewed him. IAF, Tab 6 at 1-2, Tab 9 at 2, 4, Tab 10 at 9-10. The
appellant also alleged that his supervisor used the HRO as a “puppet” to retaliate
against him by submitting a false Report of Contact to human resources, which13
prevented him from being rehired, and the Supervisor for Fire Safety had
“profound influence” on the HRO because he often chaired the Safety Committee.
IAF, Tab 6 at 3, 13. Given the nature of the personnel actions at issue, the
appellant’s allegations are sufficient to satisfy his burden to make nonfrivolous
allegations of contributing factor at the jurisdictional stage. Bradley,
123 M.S.P.R. 547, ¶¶ 15-17.
Because we find that the appellant exhausted his administrative remedies
with OSC and made nonfrivolous allegations that the agency failed to select him
for 5 positions in 2016 and 2017 due to disclosures (1)-(5), we remand this IRA
appeal for the appellant’s requested hearing and a decision on the merits.
On remand, the administrative judge should also address whether the
appellant’s disclosures were made in the normal course of his duties. Pursuant to
5 U.S.C. § 2302(f)(2), an appellant who makes a disclosure in the normal course
of his duties must additionally show that the agency took the action “in reprisal
for” his disclosure, and it thereby imposes a slightly higher burden for proving
that the disclosure was protected. Salazar v. Depaartment of Veterans Affairs ,
2022 MSPB 42, ¶ 11. The National Defense Authorization Act for Fiscal Year
2018 amended 5 U.S.C. § 2302(f)(2) to provide that it only applies to employees
whose principal job functions are to regularly investigate and disclose
wrongdoing, Salazar, 2022 MSPB 42, ¶¶ 13-14, and that that amendment is
entitled to retroactive effect. Salazar, 2022 MSPB 42, ¶¶ 15-21. The Board has
recently clarified that the potential applicability of 5 U.S.C.§ 2302(f)(2) is not
part of the jurisdictional analysis in an IRA appeal, and should instead be
considered at the merits stage. Williams v. Department of Defense , 2023 MSPB
23, ¶ 12.
On remand, the appellant must demonstrate by a preponderance of the
evidence that his disclosures were protected under 5 U.S.C. § 2302(b)(8) and that
they were a contributing factor in a contested personnel action. 5 U.S.C.
§ 1221(e)(1). If the appellant’s principal job function was to regularly investigate14
and disclose wrongdoing and he made his disclosures in the normal course of his
duties, to establish that his disclosures were protected, the appellant must also
prove that the agency had an improper, retaliatory motive for terminating him.
In conducting that analysis, the administrative judge should first determine
whether: (1) the appellant’s primary job function at the time of the disclosure
was to investigate and disclose wrongdoing; and (2) the disclosure was made in
the normal course of the appellant’s duties. The administrative judge may
consider these questions in whichever order is more efficient, and the parties
should be provided an opportunity to submit relevant evidence and argument. If
either condition is unsatisfied, then § 2302(f)(2) does not apply, and the
appellant’s disclosures would fall under the generally applicable 5 U.S.C.
§ 2302(b)(8). Salazar, 2022 MSPB 42, ¶ 22. If conditions (1) and (2) are both
satisfied, the administrative judge should next determine whether the appellant
can meet his additional burden under § 2302(f)(2) by demonstrating that the
agency took the contested personnel action “in reprisal” for his disclosures. In
doing so, the administrative judge should consider the totality of the evidence.
5 C.F.R. § 1201.4(q) (stating that the record as a whole should be considered
when determining whether a party has met the preponderance of the evidence
standard); see Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir.
2012) (“It is error for the MSPB to not evaluate all the pertinent evidence in
determining whether an element of a claim or defense has been proven
adequately.”) The determination of whether the agency took personnel actions
“in reprisal for” the appellant’s whistleblowing disclosures may include direct
and circumstantial evidence encompassing the following factors: (1) whether the
agency officials responsible for taking the personnel action knew of the
disclosures and the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosures were in reprisal for the
personnel action; (2) the strength or weakness of the agency’s reasons for taking
the personnel action; (3) whether the disclosures were personally directed at the15
agency officials responsible for taking the action; (4) whether the acting officials
had a desire or motive to retaliate against the appellant; and (5) whether the
agency took similar personnel actions against similarly situated employees who
had not made disclosures. Williams, 2023 MSPB 23, ¶ 16 .
The appellant’s remaining arguments on review do not warrant a different
outcome.
In an IRA appeal, the Board lacks the authority to adjudicate the merits of
the underlying personnel action; rather, the Board’s jurisdiction is limited to
adjudicating the whistleblower allegations. Lu v. Department of Homeland
Security, 122 M.S.P.R. 335, ¶ 7 (2015); see Marren v. Department of Justice ,
51 M.S.P.R. 632, 638-39 (1991) (stating that Congress did not give the Board
general jurisdiction to decide the merits of the underlying personnel action from
which an IRA complaint stems except to the extent that they are relevant or
material to the appellant’s allegations of retaliation for whistleblowing
disclosures), 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).
On review, the appellant asserts that the agency violated his constitutional
rights, committed harmful error and other prohibited personnel practices,
discriminated against him, and failed to follow proper recruitment and selection
procedures in violation of the Veterans Employment Opportunities Act of 1998
(VEOA). PFR File, Tab 6 at 5-30. The Board does not have jurisdiction over
these claims in the context of an IRA appeal. See, e.g., Benton-Flores
v. Department of Defense , 121 M.S.P.R. 428, ¶ 6 n.1 (2014) (finding no
jurisdiction over the appellant’s claim of harmful procedural error in an IRA
appeal); Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 14 (2011) (finding
that the appellant could not bring a claim of disability discrimination in an IRA
appeal), aff’d, 498 F. App’x 1 (Fed. Cir. 2012); McCarthy v. International
Boundary and Water Commission , 116 M.S.P.R. 594, ¶ 27 (2011) (finding that
the appellant’s allegations of constitutional violations could not be heard in his16
IRA appeals), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). On remand, the
administrative judge should consider such assertions only to the extent they are
relevant or material to the appellant’s reprisal claims.9
The appellant’s arguments concerning equitable tolling and jurisdiction
under VEOA and the Uniformed Services Employment and Reemployment Rights
Act of 1994 (USERRA), e.g., PFR File, Tab 6 at 7, 20-24, 27, 29, seem to relate
to his separate VEOA and USERRA appeals, which are currently pending before
the Board in Hendy v. Department of Veterans Affairs , MSPB Docket Nos. CH-
3330-18-0110-I-1, CH-4324-18-0228-I-1.10 We deny the appellant’s request to
join this IRA appeal with his other Board appeals, PFR File, Tab 6 at 7, because
doing so would not expedite processing of the cases, 5 C.F.R. § 1201.36(b).
We have reviewed the appellant’s evidence and argument concerning a
2018 nonselection for an Industrial Hygienist (GEMS Coordinator) position. PFR
File, Tab 6 at 29. As noted above, the appellant did not prove that he exhausted
this claim with OSC. Moreover, it appears that this nonselection was the subject
of his recently-closed VEOA and USERRA appeals. Hendy v. Department of
Veterans Affairs , MSPB Docket No. CH-3330-18-0514-I-1, Initial Decision
(April 23, 2019); Hendy v. Department of Veterans Affairs , MSPB Docket No.
CH-4324-18-0541-I-1, Initial Decision (April 23, 2019); Hendy v. Department of
Veterans Affairs , MSPB Docket Nos. CH-3330-18-0514-I-1, CH-4324-18-0541-I-
1, Final Order (March 20, 2024). Therefore, we do not consider such evidence
and argument on review.
The appellant argues that the administrative judge is biased because he did
not receive proper service of documents in his USERRA appeal and the
administrative judge should have held a hearing in his IRA appeal. PFR File,
9 To the extent the appellant believes that any of his supplemental documentation is
relevant to the merits of his reprisal claims, he may resubmit such documentation on
remand.
10 The Board will issue separate orders that address the issues raised in the appellant’s
other appeals.17
Tab 6 at 24-25. We disagree. 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.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). The appellant’s broad allegation of bias is
insufficient to rebut the presumption of the administrative judge’s honesty and
integrity. Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980);
see Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013)
(observing that the Board will not infer bias based on an administrative judge’s
case-related rulings).
Although the appellant contends that the administrative judge did not
review all of his motions, he does not specify which motions were not reviewed
or explain how his substantive rights have been harmed. PFR File, Tab 6 at 28;
see 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).
Finally, we deny the appellant’s request for a stay. PFR File, Tab 6 at 30.
A stay request of a personnel action must be filed with the appropriate Board
regional or field office, not to the full Board on petition for review. 5 C.F.R.
§ 1209.8(b).
We have considered the appellant’s remaining evidence and argument on
review, but none warrant a different outcome.
ORDER
Because we find that the appellant exhausted his administrative remedies
with OSC and made nonfrivolous allegations that disclosures (1)-(5) were a
contributing factor in the agency’s decision not to select him for 5 positions in
2016 and 2017, we vacate the initial decision and remand this case to the Central18
Regional Office for a hearing and further adjudication in accordance with this
Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Hendy_David_M_CH-1221-18-0114-W-1__Remand_Order.pdf | 2024-05-01 | DAVID M. HENDY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-18-0114-W-1, May 1, 2024 | CH-1221-18-0114-W-1 | NP |
1,593 | https://www.mspb.gov/decisions/nonprecedential/Davis-Jones_PamelaSF-0714-21-0261-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA DAVIS-JONES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-21-0261-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence G. Widem , Esquire, West Hartford, Connecticut, for the
appellant.
Mickel-Ange Eveillard , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
found that the agency proved its charge of deficient performance but remanded
the matter to the agency for a proper penalty determination pursuant to 38 U.S.C.
§ 714. For the reasons set forth below, the appellant’s petition for review 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).
DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
In March 2021, the appellant filed a Board appeal challenging the agency’s
decision to demote her from GS-0675-09 Supervisory Medical Records
Technician to GS-0675-08 Medical Records Coder for failure to meet the
performance expectations of a critical element of her position. Initial Appeal File
(IAF), Tab 1 at 1, 4, Tab 4 at 35-42. On September 1, 2021, the administrative
judge issued an initial decision sustaining the agency’s determination that the
appellant had failed to meet performance expectations and finding that the
appellant failed to prove her affirmative defenses of disability discrimination,
retaliation for prior Equal Employment Opportunity (EEO) activity, and
whistleblower retaliation. IAF, Tab 31, Initial Decision (ID) at 12-37. However,
because the administrative judge found that neither the agency’s proposal nor its
decision letter included any discussion of the factors set forth in Douglas v.
Veterans Administration , 5 M.S.P.R. 280 (1981), he remanded the matter to the
agency for a new penalty determination. ID at 38-40. The administrative judge
ordered the agency to provide the appellant with an opportunity to comment on
the propriety of any new penalty, to make a new penalty decision, and to issue a
new decision, with appeal rights pursuant to 38 U.S.C § 714 if applicable, no later
than 15 business days after the date the initial decision became final. ID at 40.
The administrative judge informed the parties that the initial decision would
become final on October 6, 2021, unless a petition for review was filed by that
date. ID at 41.
The appellant filed a petition for review on October 21, 2022. Petition for
Review (PFR) File, Tab 1. At the same time, she also filed a motion to waive the
time limit to permit her late-filed petition for review, arguing that good cause
existed for the delay. PFR File, Tab 3. The agency filed a response, urging the2
Board to dismiss the appellant’s petition for review as untimely. PFR File, Tab 6.
The appellant filed a reply. PFR File, Tab 8.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review must be filed within 35 days after the initial decision
is issued, or, if the appellant shows that she received the initial decision more
than 5 days after it was issued, within 30 days after the date of receipt.
Williams v. Office of Personnel Management , 109 M.S.P.R. 237, ¶ 7 (2008);
5 C.F.R. § 1201.114(e). Here, it appears to be undisputed that the petition for
review was untimely filed. PFR File, Tab 1 at 3, Tab 3 at 4. The appellant is a
registered e-filer, and the initial decision was served on her electronically on
September 1, 2021—the date it was issued. IAF, Tab 1 at 2, Tab 32; ID at 1; see
5 C.F.R. § 1201.4(i)-(n). Therefore, her petition for review was due no later than
October 6, 2021. See 5 C.F.R. § 1201.114(e) (35-day deadline for filing a
petition for review). As a result, the appellant’s petition for review filed on
October 21, 2022, is untimely by over a year.
The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the filing delay. Lawson v. Department of Homeland
Security, 102 M.S.P.R. 185, ¶ 5 (2006); 5 C.F.R. §§ 1201.12, 1201.114(g). To
establish good cause for an untimely filing, a party must show that she exercised
due diligence or ordinary prudence under the particular circumstances of her case.
Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of her excuse and her showing of due
diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causal relationship to her inability to timely file her3
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).
In the appellant’s motion to waive the time limit for filing her petition for
review, she states that her petition for review is untimely because the agency
improperly failed to notify her of her appeal rights when it issued her a new
penalty determination on or about October 18, 2021. PFR File, Tab 3 at 11, 13,
20-21. She also claims that the initial decision did not give her any guidance
“describing how the remand and the issuance of a new agency decision would
affect or not affect the deadline” for filing a petition for review, and she
emphasizes that she was pro se during this time. Id. at 13. In addition, the
appellant asserts that the administrative judge was improperly appointed and that
dismissing her appeal as untimely will violate the Appointments Clause. Id.
at 14-16. She also argues at length why she believes that the administrative judge
erred in his analysis and conclusions in the initial decision. Id. at 5-11.
In its response, the agency stresses that the initial decision in no way
stayed the deadline to timely file a petition for review under 5 C.F.R.
§ 1201.114(e). PFR File, Tab 6 at 7. It also submits as new evidence an
October 27, 2021 penalty decision, which includes a notice of appeal rights that
informs the appellant that she has 10 business days after the date of the action to
file a Board appeal, and an email dated October 26, 2021, in which the appellant
states “Thank You for this document. I have already informed you regarding my
intention(s) this MSPB issue [sic].” Id. at 8-15.
In this case, we find that the appellant’s more than 1-year delay in filing
her petition for review is not a minimal delay. See, e.g., Winfrey v. National
Archives and Records Administration , 88 M.S.P.R. 403, ¶ 6 (2001) (finding that a
48-day delay in filing a petition for review was not minimal and did not provide a
basis for waiving the filing deadline, despite the appellant’s pro se status).
Although the appellant claims that she was confused as to how the issuance of a
new agency penalty decision would affect or not affect the deadline for filing a4
petition for review, the appellant must show that her confusion is related to a
specific ambiguity in either the instructions she received or in a Board procedure
in order to establish good cause. See Forst v. Office of Personnel Management ,
97 M.S.P.R. 142, ¶ 7 (2004). The appellant has not done so here, and we find
that the administrative judge’s instructions on this point were clear. He explicitly
advised the appellant that the initial decision would become final on October 6,
2021, unless she filed a petition for review by that date. ID at 41. Although the
administrative judge ultimately concluded that a remand was necessary for a
proper penalty determination under Douglas, he specifically ordered the agency
to issue its new penalty decision “no later than 15 business days from the date
this initial decision becomes final .” ID at 40 (emphasis added). It was thus
evident from the administrative judge’s instructions that the eventual issuance of
a new agency decision was intended to come after the appellant had an
opportunity to challenge the administrative judge’s findings in the initial decision
and that the issuance of a new agency decision did not affect the deadline for
filing a petition for review.
We find the appellant’s argument that her petition for review was untimely
because the agency’s October 2021 penalty decision allegedly improperly failed
to notify her of her appeal rights similarly unavailing. PFR File, Tab 3 at 11, 13,
20-21. The initial decision contained the relevant notice of appeal rights/Board
review that clearly explained to the appellant when and how to file a petition for
review challenging the administrative judge’s decision. ID at 40-44. The
agency’s new penalty determination, rendered after the initial decision became
final, is a separate issue.2 The administrative judge explained this in the initial
decision when he stated “[i]f the agency again imposes a penalty that the
appellant can appeal to the Board, it should give her notice of [her] rights to do
so.” ID at 40. As a result, the appellant’s arguments do not contribute to a
2 Notably, both the appellant’s petition for review and her motion to waive the time
limit only dispute the administrative judge’s analysis and findings in the initial
decision. PFR File, Tab 1 at 6-11, 22-34, Tab 3 at 5-10.5
finding of good cause for her untimely petition for review.3 See Sumrall v.
Department of the Air Force , 85 M.S.P.R. 597, ¶ 13 (2000) (finding that an
appellant’s lack of sophistication in Board matters and general inability to
understand instructions and procedures is insufficient to show good cause for a
filing delay); Wallace v. Department of Veterans Affairs , 81 M.S.P.R. 88, ¶ 5
(stating that the appellant’s inexperience with legal matters and unfamiliarity
with Board procedures does not warrant waiver of the filing deadline), aff’d,
217 F.3d 856 (Fed. Cir. 1999) (Table). In any case, we note that even if the
appellant was unsure of her appeal rights following the agency’s new penalty
determination, she still does not explain why she waited a year to take any
subsequent action. See Gerald v. Department of the Treasury , 114 M.S.P.R. 504,
¶ 7 (2010) (finding that the appellant failed to show that he exercised the due
diligence or ordinary prudence that would justify waiving the deadline for filing a
petition for review where he failed to provide any explanation whatsoever as to
why he waited nearly 19 months to file his petition).
With regard to the appellant’s repeated assertions that she was pro se when
the administrative judge issued the initial decision and when the agency issued its
new penalty determination, although we take that into consideration, the Board
has long held that a lack of representation or an appellant’s inability to obtain
representation fails to establish good cause to excuse an untimely petition for
review. McCoy v. U.S. Postal Service , 112 M.S.P.R. 256, ¶ 8 (2009), aff’d,
360 F. App’x 132 (Fed. Cir. 2010). With respect to the appellant’s objection to
the nature of the administrative judge’s appointment, which she raises for the first
time on review, the Board has found that an Appointments Clause challenge must
be raised before the administrative judge and has stated that it will not address the
merits of such a claim raised for the first time on review. McClenning v.
3 Likewise, the documents that the agency submits on review, regarding the issue of
whether or not the appellant received a notice of appeal rights with the new penalty
determination, are not material to the timeliness of the petition for review issue
presented here. PFR File, Tab 6 at 8-15; see 5 C.F.R. § 1201.115(d).6
Department of the Army , 2022 MSPB 3, ¶¶ 5-15. Finally, the appellant’s
assertion that she is entitled to the protection of the “continuing violation
doctrine” as it relates to the issue of reasonable accommodation is inapplicable
and irrelevant to the issue of the timeliness of the petition for review. PFR File,
Tab 3 at 16-19; see, e.g., Marasco v. U.S. Postal Service , 66 M.S.P.R. 555, 558
(1995) (finding that merits arguments are not relevant to the timeliness issue and
do not establish good cause for an untimely filing).
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 agency’s demotion 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
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.7
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 obtain8
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 9
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).
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. 10
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.11 | Davis-Jones_PamelaSF-0714-21-0261-I-1__Final_Order.pdf | 2024-05-01 | null | SF-0714-21-0261-I-1 | NP |
1,594 | https://www.mspb.gov/decisions/nonprecedential/James_KidadaPH-0731-19-0362-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIDADA JAMES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0731-19-0362-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kidada James , Baltimore, Maryland, pro se.
Darlene M. Carr , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) finding her
unsuitable for Federal employment. On petition for review, the appellant argues
that the Board’s electronic filing system was down during a portion of her
hearing, that she lacked legal representation, and that others accused of the same
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).
offenses would have received a lesser penalty. 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).
While the appellant was testifying during the video-hearing, she indicated
that she had been logged off the Board’s electronic filing system and thus could
not access electronically filed documents. Hearing Recording (HR). The agency
representative reported similar problems and stated that she would refer to the
hard copy of the file she had. HR. The administrative judge stated during the
hearing that “it doesn’t appear to be a problem” for the appellant in that her
challenge was to the reasons she was terminated by her private-sector employer,
not the basis for OPM’s adverse suitability determination. HR. Although the
appellant repeated that she was unable to access the electronic case file, at no
point did she request that the hearing be delayed or object to the administrative
judge proceeding with the hearing. HR. On review, the appellant argues that,
because the electronic case filing system was down during a portion of the
hearing, she could not clearly present the documents and explain the reasons for
her separation from her private-sector employer. Petition for Review (PFR) File,2
Tab 1 at 4. We construe this claim as one of adjudicatory error, that is, error by
the administrative judge in continuing with the hearing under the circumstances.
Because the appellant did not request a continuance below or object to the
administrative judge proceeding with the hearing, she is precluded from raising
the issue on review. See McCarthy v. International Boundary and Water
Commission, 116 M.S.P.R. 594, ¶ 25 (2011) (stating that the appellant’s failure to
timely object to rulings during the hearing precludes his doing so on petition for
review), aff’d, 497 Fed. Appx. 4 (Fed. Cir. 2012); see also Tarpley v. U.S. Postal
Service, 37 M.S.P.R. 579, 581 (1988) (stating that the appellant’s failure to
timely object to the administrative judge’s rulings on witnesses precludes his
doing so on petition for review). In any event, a n adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984). Here, the administrative judge considered the appellant’s contentions
regarding the reasons for her previous separation and found, based on
contradictory evidence in the record, that the appellant’s explanation was not
credible. Initial Appeal File, Tab 27, Initial Decision at 4-6. Thus, the appellant
has failed to show that any error by the administrative judge prejudiced her
substantive rights.2 Panter, 22 M.S.P.R. at 282.
2 The appellant also argues on review that she was harmed by her lack of legal
representation during the proceedings below. PFR File, Tab 1 at 4. While the appellant
has a statutory right to be represented by an attorney or other representative, it is the
appellant’s obligation to secure representation. Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989). The Board is not required by law, rule,
or regulation to appoint counsel for an appellant. Id. To the extent that the appellant
was harmed by her lack of representation, she is responsible for that choice. See Sofio
v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981). Finally, regarding the
appellant’s argument about the penalty, PFR File, Tab 1 at 5, the Board’s jurisdiction
over a negative suitability determination does not extend to reviewing or modifying the
ultimate action taken as a result of a suitability determination, Folio v. Department of
Homeland Security, 402 F.3d 1350, 1353, 1355-56 (Fed. Cir. 2005).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 has 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 | James_KidadaPH-0731-19-0362-I-1__Final_Order.pdf | 2024-05-01 | KIDADA JAMES v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0731-19-0362-I-1, May 1, 2024 | PH-0731-19-0362-I-1 | NP |
1,595 | https://www.mspb.gov/decisions/nonprecedential/Hanke_Timothy_L_PH-0842-22-0187-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY LEWIS HANKE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0842-22-0187-X-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy Lewis Hanke , Newburyport, Massachusetts, pro se.
Angerlia D. Johnson , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
On April 26, 2023, the administrative judge found the agency in
noncompliance with the November 30, 2022 initial decision, which ordered the
agency to approve the appellant’s application for immediate retirement and
calculate his annuity accordingly. Hanke v. Office of Personnel Management ,
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).
MSPB Docket No. PH-0842-22-0187-I-1, Initial Appeal File (IAF), Tab 9, Initial
Decision (ID); Hanke v. Office of Personnel Management , MSPB Docket No.
PH-0842-22-0187-C-1, Compliance File (CF), Tab 5, Compliance Initial Decision
(CID). For the reasons below, we now find the agency in compliance and
DISMISS the appellant’s petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On May 5, 2022, the appellant filed an appeal challenging the April 7, 2022
decision of the Office of Personnel Management (OPM) denying his application
for immediate retirement. IAF, Tab 1. In the November 30, 2022 initial decision,
the administrative judge found that the appellant had established that he was
eligible for immediate retirement, and ordered OPM to approve his application
and calculate his annuity accordingly. ID at 4. Because neither party filed a
petition for review, the initial decision became the Board’s final order on
January 4, 2023. See 5 C.F.R. § 1201.113.
On January 19, 2023, the appellant filed a petition for enforcement,
alleging that OPM had failed to take any action to comply with the initial
decision. CF, Tab 1. On April 26, 2023, the administrative judge issued a
compliance initial decision noting that OPM had failed to respond to the
allegations of noncompliance and granting the appellant’s petition for
enforcement. CID at 2-3.2
2 The compliance initial decision informed the agency that if it decided to take the
actions required by the decision it must submit to the Clerk of the Board, within the
time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that
it has taken the actions identified in the compliance initial decision, along with evidence
establishing that it has taken those actions. CID at 4-5; see 5 C.F.R. § 1201.183(a)(6)
(i). The compliance initial decision also informed the parties that they could file a
petition for review if they disagreed with the compliance initial decision. CID at 4, 11;
see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party petitioned for review of
the compliance initial decision.2
ANALYSIS
The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management , 115 M.S.P.R. 65, ¶ 4 (2010).
The agency is required to produce relevant, material, and credible evidence of
compliance in the form of documentation or affidavits. Spates v. U.S. Postal
Service, 70 M.S.P.R. 438, ¶ 9 (1996). The appellant may rebut the agency's
evidence of compliance by making “specific, nonconclusory, and supported
assertions of continued noncompliance.” Brown v. Office of Personnel
Management, 113 M.S.P.R. 325, ¶ 5 (2010).
On May 24, 2023, the agency filed a statement of compliance, informing
the Board that it had complied with the final decision by approving the appellant
for immediate retirement and paying his annuity retroactively from November 1,
2021. Hanke v. Office of Personnel Management , MSPB Docket No. PH-0842-
22-0187-X-1, Compliance Referral File (CRF), Tab 1 at 2. As evidence of
compliance, the agency submitted a “master record printout” showing that the
agency had paid the appellant a net amount of $6,586.16 on May 15, 2023, as a
retroactive annuity payment, and had scheduled a net monthly annuity payment of
$433.28. Id. at 5. The agency also included a computation of the gross
retroactive annuity payment due to appellant. Id. at 6.
Also on May 24, 2023, the Board issued an Acknowledgement Order noting
the agency’s filing and informing the appellant that he must file any response
within 20 calendar days. CRF, Tab 2 at 2. The order specifically informed the
appellant that if he failed to file a response, the Board might assume he was
satisfied and dismiss the petition for enforcement. Id.
The appellant has not responded to the agency’s statement of compliance.
Thus, the agency has filed detailed documentation and a narrative statement
asserting compliance to which the appellant has not responded, despite being
apprised that the Board might construe lack of response as satisfaction with the
agency’s actions. 3
Accordingly, we find that the agency is now in full compliance with the
November 30, 2022 decision, and dismiss the petition for enforcement. This is
the final decision of the Merit Systems Protection Board in this compliance
proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1)
(5 C.F.R. § 1201.183(c)(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
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 the 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 | Hanke_Timothy_L_PH-0842-22-0187-X-1__Final_Order.pdf | 2024-05-01 | TIMOTHY LEWIS HANKE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0842-22-0187-X-1, May 1, 2024 | PH-0842-22-0187-X-1 | NP |
1,596 | https://www.mspb.gov/decisions/nonprecedential/Fast_Patti_A_DA-0841-19-0553-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATTI A. FAST,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0841-19-0553-I-1
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patti A. Fast , Fort Worth, Texas, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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)
disallowing a court-ordered former spouse survivor annuity for the appellant. On
petition for review, the appellant argues that she is disabled and that her former
spouse agreed to provide for her until her death. The appellant seeks assistance
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).
in obtaining a former spouse survivor annuity, but, as explained by the
administrative judge and OPM, she cannot obtain one now because the first court
order dividing marital property did not award her a former spouse survivor
annuity, and her former spouse retired without electing to provide her such an
annuity. 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
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
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. The3
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.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. 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.
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 | Fast_Patti_A_DA-0841-19-0553-I-1__Final_Order.pdf | 2024-05-01 | PATTI A. FAST v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0841-19-0553-I-1, May 1, 2024 | DA-0841-19-0553-I-1 | NP |
1,597 | https://www.mspb.gov/decisions/nonprecedential/Akhtar_Mohammad_A_DC-0752-19-0219-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MOHAMMAD ATIF AKHTAR,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-19-0219-I-2
DATE: May 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Corinna A. Ferrini , Esquire, Washington, D.C., for the appellant.
Dominique Bogatz , Esquire, and Katherine Yourth , Esquire, Richmond,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as withdrawn with prejudice to refiling. 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
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).
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, through counsel, challenges the
administrative judge’s decision to dismiss his removal appeal with prejudice
based on his September 18, 2019 notice to withdraw. Petition for Review (PFR)
File, Tab 9 at 8-12; Akhtar v. Department of Defense , MSPB Docket No. DC-
0752-19-0219-I-2, Appeal File (I-2 AF), Tab 11, Initial Decision at 1-2.
Specifically, the appellant argues that he did not intend to withdraw the entirety
of his appeal. He asserts that he was confused as a pro se appellant based on the
administrative judge’s September 17, 2019 order, which denied his motion to
dismiss his appeal without prejudice and explained that he could notify the
administrative judge if he wished to withdraw his hearing request and have a
decision based on the written record. PFR File, Tab 9 at 9-11; I-2 AF, Tab 9 at 1.
After reviewing the record and considering the appellant’s arguments on
review, we discern no reason to disturb the initial decision. Specifically, we find
that the plain language of the appellant’s September 18, 2019 notice to withdraw
shows that he withdrew his appeal by clear, unequivocal, and decisive action.
I-2 AF, Tab 10 at 4; see Rose v. U.S. Postal Service , 106 M.S.P.R. 611, ¶ 7
(2007) (observing that an appellant’s withdrawal of an appeal ordinarily is an act
of finality and must be by clear, unequivocal, and decisive action); Tozier v.
Department of the Interior , 41 M.S.P.R. 167, 168-69 (1989) (finding that the2
administrative judge properly dismissed the appeal when the appellant’s letter to
the regional office plainly and unequivocally stated that he wished to withdraw
his appeal). We further find that the information provided in the administrative
judge’s September 17, 2019 order was not misleading or incorrect. I-2 AF, Tab 9
at 1-2; see Rose, 106 M.S.P.R. 611, ¶ 7 (stating that the Board may relieve an
appellant of the consequences of his decision to withdraw an appeal when the
decision was based on misleading or incorrect information provided by the Board
or the agency).
Accordingly, we affirm the initial decision dismissing the appellant’s
removal appeal as withdrawn with prejudice to refiling.
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.
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
(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.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. 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
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FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Akhtar_Mohammad_A_DC-0752-19-0219-I-2__Final_Order.pdf | 2024-05-01 | MOHAMMAD ATIF AKHTAR v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-19-0219-I-2, May 1, 2024 | DC-0752-19-0219-I-2 | NP |
1,598 | https://www.mspb.gov/decisions/nonprecedential/Stewart_Alvin_D_AT-0752-17-0123-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALVIN DEREK STEWART,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-17-0123-I-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James E. Bankston , Florence, Alabama, for the appellant.
Tiane Doman , Esquire, and Katherine H. Reilly , Esquire, Falls Church,
Virginia, for the agency.
Sandy Reinfurt , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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).
2
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
(1) to address a finding made by the administrative judge related to the agency’s
charge and (2) to clarify the basis for finding that the appellant did not prove his
claims of disability discrimination or Title VII discrimination and retaliation, we
AFFIRM the initial decision.
BACKGROUND
The appellant was employed by the agency as a legal assistant and was
assigned to the Orlando Immigration Court (OIC) in Orlando, Florida. Initial
Appeal File (IAF), Tab 13 at 67. During the period between February and early
April 2016, he referred to his first-level supervisor as a “spy” and “Grinch,”
stated “she’s outta here,” or words to that effect, mocked and laughed at her, and
blocked her in the hallway. IAF, Tab 10 at 47-48. He also referred to his
assignment to a different supervisor as “emancipation” that was occurring
proximate to “Martin Luther King’s birthday” in comments to a coworker. Id.
at 48. Based on these incidents, the agency proposed his removal for
inappropriate conduct with eight specifications. Id. at 46-51. After the appellant
provided a written and oral reply to the proposal, the deciding official issued a
decision removing him from Federal service, effective May 14, 2016. IAF, Tab 1
at 14-19, Tab 13 at 67.
3
The appellant appealed his removal to the Board, arguing that it was the
result of discrimination based on his disability, race, national origin, and sex.
IAF, Tabs 1, 41. He also argued that the agency retaliated against him for equal
employment opportunity (EEO) and whistleblowing activity, violated his due
process rights, and committed harmful procedural error. IAF, Tabs 41, 70.
After holding a 4-day hearing, IAF, Tabs 72-74, 85, the administrative
judge issued an 83-page initial decision finding that the agency proved all eight
specifications of the charge. IAF, Tab 100, Initial Decision (ID) at 18-35. He
determined that the appellant’s removal was reasonable and promoted the
efficiency of the service. ID 35-36. He also found that the appellant failed to
prove his affirmative defenses of an alleged due process violation, harmful
procedural error, discrimination, and retaliation for engaging in EEO activity. ID
at 36-57. Further, although he found that the appellant proved that he engaged in
protected activity under the Whistleblower Protection Enhancement Act of 2012
(WPEA) that was a contributing factor to his removal, he concluded that the
agency proved that it would have removed the appellant even in the absence of
that activity. ID at 57-76.
The appellant has filed a petition for review, wherein he contests the
administrative judge’s credibility findings and argues that the administrative
judge erred in finding that he failed to prove any of his affirmative defenses.
Petition for Review (PFR) File, Tab 1 at 8-9, 12-16, 18-22. He also argues that
the administrative judge abused his discretion in denying the appellant’s motions
for a protective order and to reopen the record, and in granting the agency’s
request for rebuttal witness testimony while denying his request. Id. at 10, 16-18.
He further argues that the atmosphere of the proceedings created a bias against
him, id. at 9-10, and that he has new and material evidence that supports his
claims, id. at 16-18, 29-34. The agency has filed a response. PFR File, Tab 3.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency proved the charge of
inappropriate conduct by preponderant evidence.
Similar to a charge of conduct unbecoming a Federal employee and a
charge of unacceptable conduct, inappropriate conduct is a generic charge and has
no specific elements of proof; the agency establishes the charge by proving that
the appellant committed the acts alleged under this broad label and that the
conduct was improper, unsuitable, or detracted from the appellant’s character or
reputation. See Canada v. Department of Homeland Security , 113 M.S.P.R. 509,
¶ 9 (2010) (setting forth this test as to charges of conduct unbecoming and
improper conduct); see also Miles v. Department of the Army , 55 M.S.P.R. 633,
637 (1992) (finding that an appellant’s conduct of running over a deer with a
Government vehicle was, under the circumstances, conduct unbecoming a Federal
employee because, at the very least, it was unsuitable and tended to detract from
his character). Generally, an agency is required to prove its charges in an adverse
action appeal by preponderant evidence.2 5 U.S.C. § 7701(c)(1)(B).
In seven of the eight specifications of the inappropriate conduct charge, the
agency alleged that the appellant engaged in misconduct directed at his first-level
supervisor. IAF, Tab 10 at 47-48. The remaining specification related to a
comment he made to a coworker as to his “emancipation” from this supervisor.
Id. At the hearing, the appellant, his first-level supervisor, and a coworker who
overheard the appellant’s comments as to his “emancipation,” among others,
testified regarding the allegations. IAF, Tab 72, June 13, 2017 Hearing Compact
Disc (HCD1) (testimony of the appellant’s first-level supervisor); IAF, Tab 73,
June 14, 2017 Hearing Compact Disc (HCD2) (testimony of the appellant’s
coworker); IAF, Tab 74, June 15, 2017 Hearing Compact Disc (HCD3) (testimony
of the appellant). The appellant’s supervisor testified regarding her recollection
2 A preponderance of the 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
of the incidents detailed in the proposed removal, and the appellant generally
denied the alleged misconduct in his testimony. HCD1 (testimony of the
appellant’s first-level supervisor); HCD3 (testimony of the appellant).
When, as here, there is conflicting testimony concerning the appellant’s
conduct, and it is impossible to believe the testimony of witnesses on both sides,
an administrative judge must make credibility determinations to properly resolve
the case. Vicente v. Department of the Army , 87 M.S.P.R. 80, ¶ 7 (2000). In the
initial decision, the administrative judge assessed the credibility of each witness’s
testimony as it related to each specification pursuant to the factors set forth in
Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987). ID at 30-31. In
doing so, he relied heavily on the witnesses’ demeanors. ID at 31-33. He also
considered whether the record included prior statements or documentation
consistent with the testimony provided. ID at 31-36. He concluded that the
appellant’s supervisor was a more credible witness. Id. He also concluded that
the witness who overheard the conversation as to “emancipation” was more
credible than the appellant and the coworker with whom he had the conversation,
who also testified. Id. Based primarily on these credibility determinations, the
administrative judge concluded that the agency met its burden to prove the charge
by preponderant evidence. Id.
On review, the appellant generally argues that the administrative judge
wrongfully credited the “deceptive demeanor” of his supervisor, who “used a
deceptive emotional display to deceive the [administrative judge] from using
good judgement.” PFR File, Tab 1 at 7-8. He points to a number of factors
weighed by the administrative judge in assessing the credibility of the witnesses’
testimony, including the presence or lack of corroborating evidence and
witnesses, and the witnesses’ potential bias. Id. at 7-9, 15; ID at 30-36. We
decline to disturb the administrative judge’s findings. We discern nothing
improper, for example, in the administrative judge’s finding that the credible
testimony of the appellant’s first-level supervisor that the appellant called her a
6
“spy” was supported by her consistent account in a contemporaneous email she
sent to the appellant’s second-level supervisor. ID at 31; IAF, Tab 10 at 108; see
Hillen, 35 M.S.P.R. at 458 (setting forth the consistency of a witness’s version of
events with other evidence as a relevant factor in assessing witness credibility).
Further, we discern no basis to disturb the administrative judge’s
demeanor-based credibility determination that the appellant’s supervisor’s
account of this incident was more credible than those of the appellant and his
corroborating witness. ID at 31-33; see Haebe v. Department of Justice , 288 F.3d
1288, 1301 (Fed. Cir. 2002) (observing that the Board generally 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 appellant’s attempts on review to reweigh this
evidence are unpersuasive. PFR File, Tab 1 at 8-9; 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 & Human Services , 33 M.S.P.R.
357, 359 (1987) (same). The appellant’s other challenges to the administrative
judge’s findings that the agency proved the facts underlying specifications 1
through 7 are similarly unavailing. PFR File, Tab 1 at 8-9, 15-16.
In specification 8, the agency alleged that, on or about April 7, 2016, the
appellant blocked his first-level supervisor in the hallway and that, when she said,
“excuse me,” he did not move. IAF, Tab 10 at 48. The appellant argues on
review that the agency failed to prove the actions described therein. PFR File,
Tab 1 at 12-13. He argues that his standing restrictions, which were necessary to
accommodate his disabilities, would not have allowed him to stand long enough
for his first-level supervisor to have stated “excuse me.” Id. In finding that the
agency proved this specification, the administrative judge credited the appellant’s
first-level supervisor’s testimony, which recalled the incident as described, and
7
discredited the appellant’s testimony as evasive. ID at 27-28, 35. We find that
the appellant’s assertion that his disability would have prevented him from
engaging in the conduct alleged in specification 8 does not constitute a
“sufficiently sound” reason to disturb the administrative judge’s credibility-based
findings regarding this specification. ID at 35; see Haebe, 288 F.3d at 1301. We
likewise find the appellant’s remaining challenges to the administrative judge’s
credibility-based findings unavailing.
Regarding the appropriateness of the charged misconduct, the
administrative judge found that the appellant’s proven misconduct was improper
as charged, characterizing it as inappropriate, disrespectful, intimidating, and, as
to the comment regarding emancipation, racially inappropriate. ID at 32-35. The
appellant only disputes this finding as to his “emancipation” comment on review,
arguing that the word is not inappropriate because it carries “no pejorative
connotation” and is not a threat. PFR File, Tab 1 at 14. We find this argument to
be without merit. The underlying sentiment of the appellant’s comment
essentially suggests that his prior service under his first-level supervisor was
equivalent to slavery. As such, we agree with the administrative judge’s
assessment of the appropriateness of the comment, ID at 34, and we similarly find
that, in this particular context, the comment was inappropriate. We find it
unnecessary, in light of the agency’s use of the generic charge of inappropriate
conduct, to make a determination as to whether the comment was “racially”
inappropriate, as characterized by the administrative judge. Thus, we modify the
initial decision as to this finding, still agreeing with the administrative judge that
the agency proved the specification. See Boo v. Department of Homeland
Security, 122 M.S.P.R. 100, ¶ 14 (2014) (explaining that a generic charge, such as
conduct unbecoming, does not include an intent element). Accordingly, we find
8
that the administrative judge did not err in finding that the agency proved its
charge by preponderant evidence.3
The appellant failed to prove any of his affirmative defenses.
Disability discrimination
The appellant claimed as an affirmative defense that he was discriminated
against based on his disabilities. IAF, Tab 41 at 5, 11-20. Specifically, he
asserted that the agency failed to accommodate his disabilities by requiring him
to lift boxes in violation of his medical restrictions and failing to provide him
with an ergonomic workstation. Id. at 13-15. The administrative judge found
that there was no dispute that the appellant was a qualified individual with a
disability, but further found that he failed to “connect[] his removal to his
disability.” ID at 41-42. The administrative judge concluded that “the appellant
failed to establish by a preponderance of the evidence that the agency’s decision
to remove him was motivated by discrimination on the basis of his disabilities.”
ID at 42. On review, neither party appears to dispute these findings.
The Rehabilitation Act requires an agency to provide reasonable
accommodation to the known physical or 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.
Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶ 10 (2014). However, an
employee who engages in misconduct is not “otherwise qualified.” Burton v. U.S.
Postal Service, 112 M.S.P.R. 115, ¶ 17 (2009); Laniewicz v. Department of
Veterans Affairs , 83 M.S.P.R. 477, ¶ 8 (1999). Because we agree with the
administrative judge that the agency proved that the appellant engaged in
misconduct, we modify the initial decision to find that the appellant failed to
show that he was a qualified individual with a disability, and we affirm the
3 On review, the appellant does not challenge the administrative judge’s findings that
the agency met its burden to prove a nexus between its action and the efficiency of the
service, and that the penalty was within the tolerable bounds of reasonableness. ID
at 35-36. We discern no reason to disturb these findings.
9
administrative judge’s finding that he failed to prove his disability discrimination
affirmative defense.
Prohibited discrimination and reprisal for engaging in protected
EEO activity
The appellant also claimed below that the agency’s decision to remove him
was motivated by discrimination on the basis of his sex, race, color, and national
origin, and that the agency retaliated against him for engaging in protected EEO
activity.4 IAF, Tab 41 at 5, 11-12, 22-30. When an appellant asserts an
affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e-16,
the Board first will inquire whether the appellant has shown by preponderant
evidence that the prohibited consideration was a motivating factor in the
contested personnel action. Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 20-21 .
In the initial decision, the administrative judge discussed the various types
of direct and circumstantial evidence and concluded that the appellant failed to
prove his discrimination and non-whistleblowing retaliation affirmative defenses.
ID at 42-57. The Board has since clarified that administrative judges should not
separate “direct” from “indirect” evidence; rather, the dispositive inquiry is
whether the appellant has shown by preponderant evidence that the prohibited
consideration was a motivating factor in the contested personnel action. Pridgen,
2022 MSPB 31, ¶¶ 23-24. Here, the administrative judge discussed the
distinction between direct and circumstantial evidence, ID at 42-44, but he did
not disregard any evidence because it was not direct or circumstantial, ID
at 44-57. Moreover, the administrative judge properly considered the
documentary and testimonial evidence as a whole and concluded that the
appellant failed to present sufficient evidence to establish that prohibited
discrimination or retaliation for non-whistleblowing activity was a motivating
4 Because the appellant does not appear to directly challenge any of the administrative
judge’s findings on review regarding these claims, we will not discuss them at length
herein.
10
factor in the agency’s decision to remove him. ID at 44-57. Therefore, we
modify the initial decision to clarify that the appellant failed to present evidence
of discriminatory motive, regardless of how such evidence is characterized. The
appellant’s substantive rights are not prejudiced by this clarification because he
has failed to prove these claims both below and on review, regardless of the
clarification.5 See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984).
On review, the appellant does not appear to challenge the administrative
judge’s assessment of the evidence with any meaningful specificity. For
example, he generally claims that the administrative judge “practically ignored”
his discrimination claims, but the administrative judge’s 16-page analysis shows
otherwise. PFR File, Tab 1 at 15; ID at 42-57. Further, he disputes the
administrative judge’s finding that his supervisors were unaware of his numerous
EEO complaints. PFR File, Tab 1 at 13-14. We are not persuaded by the
appellant’s arguments. The administrative judge considered the relevant evidence
and argument and found that the appellant failed to prove that his EEO activity
was a motivating factor in his removal. ID at 45-57. To the extent that the
appellant’s challenges to the administrative judge’s credibility findings on review
constitute a challenge to the analysis of his EEO retaliation claims, we must defer
to those determinations absent a “sufficiently sound” reason to disturb those
conclusions, and the appellant has not presented such a reason. See Haebe,
288 F.3d at 1301.
5 To the extent that one or more of the appellant’s EEO complaints contain allegations
of retaliation against the appellant for engaging in protected activity as to his
disabilities, IAF, Tab 41 at 44, we clarified the standard of causation for such claims in
Pridgen, 2022 MSPB 31, ¶¶ 31-35, wherein we found that an appellant must show that
an agency’s retaliatory action(s) would have not occurred but for an appellant’s
protected activity. Here, the administrative judge applied the “motivating factor”
analysis to the appellant’s discrimination and EEO retaliation claims. ID at 42-44, 57.
Because we agree with the administrative judge’s conclusion that the appellant failed to
meet the lower “motivating factor” standard, we find that an analysis under the “but
for” standard would not result in a different outcome. Thus, the appellant’s substantive
rights were not prejudiced by any error. See Panter, 22 M.S.P.R. at 282.
11
Whistleblower reprisal
The appellant also asserted reprisal for activities and disclosures protected
by the WPEA as an affirmative defense. IAF, Tab 41 at 22-32. Once an agency
proves an adverse action case by preponderant evidence, an appellant asserting an
affirmative defense of reprisal for such disclosures and activity must show by
preponderant evidence that he made a protected disclosure or engaged in
protected activity and that the disclosure or activity was a contributing factor in
the adverse action. Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 19
(2013); see 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 reprisal based on protected activity under 5 U.S.C. § 2302(b)(9)
(A)(i), (B), (C), and (D)). If the appellant makes this prima facie showing, the
burden of persuasion shifts to the agency to show by clear and convincing
evidence that it would have taken the same personnel action in the absence of any
protected disclosure or activity. 5 U.S.C. § 1221(e)(2); Alarid, 122 M.S.P.R. 600,
¶ 14.
In the initial decision, the administrative judge found that the appellant
failed to make any protected disclosures, ID at 61-70, but that, because he had
filed previous Board appeals and numerous complaints with the Office of Special
Counsel (OSC) and the Office of the Inspector General (OIG), he engaged in
protected activity, ID at 60-61 (citing 5 U.S.C. § 2302(b)(9)(A)(i), (C)). He
further found that, because the deciding official was aware of this activity and the
filings all occurred within a period of slightly more than a year prior to the
decision to remove the appellant, the appellant had established that his protected
whistleblowing activity was a contributing factor in the agency’s decision to
remove him. ID at 72. Nonetheless, the administrative judge found that the
agency proved by clear and convincing evidence that it would have removed the
appellant even in the absence of his protected whistleblowing activity. ID at 72
12
(citing Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir.
1999)).
Although the appellant’s challenges on review to the administrative judge’s
findings regarding his whistleblower claims are not entirely clear, it appears that
he is arguing that his disclosure of an alleged affair between his first- and second-
level supervisors constituted a protected disclosure. PFR File, Tab 1 at 14-15;
IAF, Tab 41 at 4. To be considered a protected disclosure under 5 U.S.C.
§ 2302(b)(8)(A), an appellant must prove that he reasonably believed the
disclosed information 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. 5 U.S.C. § 2302(b)(8)(A).
After a thorough 10-page analysis of witness testimony and documentary
evidence, the administrative judge found that the appellant failed to establish that
he reasonably believed that his supervisors were involved in an inappropriate
personal relationship, ID at 62, 64, and that, even if he had proven that he
reasonably believed that his supervisors were engaged in an affair, he also failed
to prove that he had a reasonable belief that the alleged inappropriate relationship
evidenced wrongdoing under 5 U.S.C. § 2302(b)(8)(A), ID at 70. We agree with
the administrative judge that the appellant’s disclosure of an alleged
inappropriate relationship does not evidence one of the categories of wrongdoing
described in 5 U.S.C. § 2302(b)(8). See Ayers v. Department of the Army ,
123 M.S.P.R. 11, ¶¶ 23-24 (2015) (holding that an employee’s allegation of an
improper relationship between her supervisors without any allegation of
preferential treatment or violation of law, rule, or regulation, was not a protected
disclosure and, thus, could not form the basis of an affirmative defense of
whistleblower reprisal). Further, the appellant has not articulated a specific
challenge to these findings beyond his general claim that the disclosure was
protected, PFR File, Tab 1 at 14-15, and we discern no reason to disturb the
initial decision in this regard, see Weaver v. Department of the Navy , 2 M.S.P.R.
13
129, 133-34 (1980) (explaining that the Board will not undertake a complete
review of the record unless the appellant identifies specific evidence in the record
which demonstrates error), review denied, 669 F.2d 613 (9th Cir. 1982) (per
curiam).
The appellant also appears to argue that the administrative judge erred in
his assessment of the existence and strength of any motive to retaliate on the part
of agency officials who were involved in the decision to remove the appellant.
PFR File, Tab 1 at 13-14. Specifically, he argues that the administrative judge
improperly found that there was no evidence to support the appellant’s claim that
his first- and second-level supervisors were aware of his protected whistleblowing
activity prior to the issuance of the proposed removal because both supervisors
should have been aware of his EEO complaints. Id.; ID at 74.
The administrative judge’s reference to the appellant’s protected activity
concerns his prior Board appeals and OIG and OSC complaints; he did not
determine whether any of the appellant’s EEO complaints were subject to the
WPEA. ID at 60-61, 71. The Board has held that engaging in EEO activity is
considered protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) when the
complaint seeks to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8).
5 U.S.C. §§ 1221(a), 2302(b)(9)(A); Bishop v. Department of Agriculture ,
2022 MSPB 28, ¶ 15. We have reviewed the EEO complaints in the record, and it
appears that, in his EEO complaint filed on April 19, 2016, the appellant alleged
that agency officials engaged in prohibited personnel practices such as making
false allegations against him and abusing their authority in reprisal for his prior
EEO, OIG, and OSC complaints. IAF, Tab 56 at 6. To the extent that the
appellant alleges that this EEO complaint constitutes protected activity under the
WPEA, we are without jurisdiction to review this claim. An allegation of reprisal
for engaging in protected activity, as opposed to reprisal for making protected
disclosures, is not actionable in an IRA appeal. See Mudd v. Department of
Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013) (explaining that the Board lacks
14
IRA jurisdiction over a claim of reprisal for filing a claim that did not seek to
remedy whistleblower reprisal). Therefore, we find that the filing of the
appellant’s April 19, 2016 EEO complaint does not constitute protected activity.6
Nonetheless, because the administrative judge found that the appellant
established a prima facie case of whistleblower reprisal with respect to his OSC
and OIG complaints and two prior Board appeals, he conducted an analysis to
determine whether the agency proved by clear and convincing evidence that it
would have taken the same personnel action in the absence of the whistleblowing.
ID at 72-76; see Carr, 185 F.3d at 1323. In making this determination, the Board
considers 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
otherwise similarly situated. Carr, 185 F.3d at 1323.
In analyzing agency officials’ motive to retaliate—the only portion of the
Carr factor analysis that the appellant appears to challenge on review—the
administrative judge observed that the deciding official was not implicated in the
appellant’s whistleblowing activity. ID at 73. The administrative judge
concluded that, although he may have had some institutional motive to retaliate
against the appellant as an agency manager, see Whitmore v. Department of
Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012), the record did not support the
conclusion that he had a significant motive to retaliate against the appellant, ID
6 During the pendency of this appeal, 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. Section 1097 of the NDAA amended various provisions of title 5
of the United States Code. These amendments expanded protected activity to include
complaints to any agency “component responsible for internal investigation or review.”
Pub. L. No. 115-91, 1097(c)(1)(A), 131 Stat. at 1618 (codified at 5 U.S.C. § 2302(b)(9)
(C)). The events related to this appeal occurred in 2016, before the enactment of the
NDAA, and the Board has held that the amendment to 5 U.S.C. § 2302(b)(9)(C) is not
retroactive. See Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 29-33, aff’d, No.
2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023). Thus, we do not consider here
the impact of section 1097 on this appeal.
15
at 73. The deciding official testified at the hearing that none of the appellant’s
OIG, OSC, or EEO complaints and Board appeals had any effect on his decision
and that he would have removed the appellant in the absence of those claims.
HCD2 (testimony of the deciding official); ID at 71-72. We defer to the
administrative judge’s implicit demeanor-based credibility finding. See Purifoy
v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016)
(holding that, when an administrative judge has held a hearing and has made
credibility determinations that were explicitly or implicitly based on the
witnesses’ demeanor while testifying, the Board generally must defer to those
credibility determinations). Because we agree with the remainder of the
administrative judge’s Carr factor analysis, ID at 72-76, we will not disturb his
ultimate conclusion that the agency proved by clear and convincing evidence that
it would have removed the appellant even in the absence of his protected activity.
Due process violations
The appellant also argued as an affirmative defense that the deciding
official violated his due process rights by considering emails between his first-
and second-level supervisors, as well as other agency officials, regarding the
allegations against him. IAF, Tab 70 at 6-12; PFR File, Tab 1 at 21. Although an
appellant’s right to due process can extend to ex parte information provided to a
deciding official, only ex parte communications that introduce new and material
evidence to the deciding official constitute due process violations. 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). An
employee’s due process rights are not violated when he receives or is made aware
of, but does not request, all of the materials underlying his proposed removal.
See McNab v. Department of the Army , 121 M.S.P.R. 661, ¶ 18 (2014) (finding
that no due process violation occurred when an appellant was made aware of, but
did not request, agency materials supporting his proposed removal).
16
The administrative judge found that the emails in question were attached to
the notice of proposed removal that the agency served on the appellant. ID at 37.
Thus, he found that the appellant failed to establish by preponderant evidence that
the agency removed him from his position without affording him due process. ID
at 38. Although the appellant’s arguments on review are not a model of clarity, it
appears that he is reasserting his claim that the deciding official improperly relied
on emails to which he was not given an opportunity to respond. PFR File, Tab 1
at 20-21. We have reviewed the record, and we agree with the administrative
judge that the appellant was provided access to the emails upon receipt of the
proposal notice. IAF, Tab 10 at 46-51, 107-110, 115-124.
The appellant also appears to argue that the agency violated his due process
rights because the deciding official relied on documents that the appellant
received through a Freedom of Information Act (FOIA) request after the decision
letter was issued. PFR File, Tab 1 at 21; IAF, Tab 57 at 15-25. The documents in
question are emails the agency provided to the appellant with heavy redactions
for FOIA exceptions. IAF Tab 57 at 15-25. If they contain substantive
information, the appellant has not provided it and does not claim that he filed a
motion to compel below or that the agency improperly redacted the documents.
Thus, we discern no basis to conclude from these emails that the deciding official
received new and material information during his deliberations. Cf. Szejner v.
Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005) (declining to
consider the appellant’s arguments on review that the agency failed to respond to
his discovery requests because he did not file a motion to compel below), aff’d,
167 F. App’x 217 (Fed. Cir. 2006).
The appellant also appears to argue on review that the agency violated his
due process rights because the deciding official was biased. PFR File, Tab 1
at 20-21. Specifically, he argues that the deciding official was improperly
influenced by the appellant’s first- and second-level supervisors. Id. To establish
a due process violation based on the identity of a deciding official, an appellant
17
must assert specific allegations indicating that the agency’s choice of deciding
official made the risk of unfairness to the appellant intolerably high. Holton v.
Department of the Navy , 123 M.S.P.R. 688, ¶ 30 (2016). The appellant has made
no such allegations.
Accordingly, we agree with the administrative judge that the appellant
failed to prove that the agency violated his due process rights.
Harmful procedural error
The appellant also argued as an affirmative defense that the agency
committed harmful procedural error by violating Department of Justice Policy
Memorandum 2015-04 when it failed to conduct an investigation into his
allegations of harassment by his supervisor, IAF, Tab 94 at 19; PFR File, Tab 1
at 22, and by failing to provide him with an opportunity to respond to the
allegations against him prior to the issuance of the proposed removal, IAF,
Tab 41 at 10; PFR File, Tab 1 at 20. For a procedural error to warrant reversal of
an agency action, the appellant must establish that the agency committed a
procedural error that likely had a harmful effect on the outcome of the case before
the agency. Powers v. Department of the Treasury , 86 M.S.P.R. 256, ¶ 10 (2000);
5 C.F.R. § 1201.56(c)(1).
The administrative judge considered the appellant’s arguments and found
that the policy was “essentially a statement describing the stance of the [agency]
regarding claims of harassment in the workplace [and] did not require the agency
to take any specific actions upon receiving a complaint of harassment.” ID
at 38-39. He further found that, to the extent the policy provides that the agency
will take swift corrective action against any agency employee who engages in
harassment, the appellant failed to establish that the agency determined that any
of the agency employees involved in the decision to remove him actually engaged
in harassment. ID at 39.
On review, the appellant reasserts this argument, PFR File, Tab 1 at 22, but
he has not provided any reason to disturb the administrative judge’s rulings.
18
Regardless of whether the agency violated the policy at issue, the appellant has
not shown that any error likely caused the agency to reach a different conclusion
in the removal proceedings from the one it would have reached in the absence or
cure of any error related to the policy. See Powers, 86 M.S.P.R. 256, ¶ 10;
5 C.F.R. § 1201.4(r). As such, we find no error in the administrative judge’s
ruling.
Regarding the appellant’s argument that he was not provided with an
opportunity to respond to the allegations against him prior to the issuance of the
proposal notice, the administrative judge found that he failed to establish that
there was any specific policy or regulation that required the agency to afford the
appellant an opportunity to respond to allegations of misconduct prior to issuing a
proposal to take adverse action against him. ID at 38. The appellant reasserts
this argument on review, but he has not pointed to any law, rule, or regulation
that requires an agency to provide such an opportunity before it issues a proposed
adverse action. To the extent he is alleging a violation of his right to respond to
the charges, this right attaches after the issuance of a proposed action but before a
final decision on that proposal is issued. See 5 U.S.C. § 7513(b); Cleveland
Board of Education v. Loudermill , 470 U.S. 532, 542-45 (1985).
Accordingly, we agree with the administrative judge that the appellant
failed to prove his affirmative defense of harmful error.
The administrative judge did not abuse his discretion in denying the appellant’s
motion for a protective order, allowing additional agency witnesses, or denying
the appellant’s requests for rebuttal witnesses and motion to reopen the record .
The appellant argues on review that the administrative judge abused his
discretion when he denied the appellant’s motion for a protective order to
“protect [his] witnesses from any forms of [a]gency witness tampering,
intimidation, threats, harassment, and retaliation for providing any true
testimony.” PFR File, Tab 1 at 10; IAF, Tab 67 at 4. The administrative judge
denied the motion, with the caveat that if, during the hearing, he formed the
19
impression that such an order was necessary, he would reconsider the ruling.
IAF, Tab 71. The appellant argues that the administrative judge abused his
discretion in denying this motion because it directly affected his witnesses’
willingness to provide accurate testimony due to fear of retaliation. PFR File,
Tab 1 at 10. The appellant also argues on review that the administrative judge
abused his discretion when he approved the agency’s rebuttal witnesses from the
Social Security Administration but denied his additional witness requests and
when he denied the appellant’s motion to reopen the record for consideration of
purportedly new evidence discovered after the record closed below but before the
initial decision was issued. Id. at 16-18; IAF, Tab 94 at 36-37.
We find that all of these decisions fall within the administrative judge’s
broad scope of authority and discretion to control the proceedings before him.
5 C.F.R. § 1201.41(b)(8), (10), (14). A request for a protective order will not be
granted based on mere speculation. Pumphrey v. Department of Defense ,
122 M.S.P.R. 186, ¶ 14 (2015). The appellant did not explain his request below,
and only speculates about potential wrongful acts by the agency on review. IAF,
Tab 67; PFR File, Tab 1 at 10. We find that the administrative judge properly
denied the appellant’s motion. IAF, Tab 71 at 2. Regarding the approval of the
agency’s rebuttal witnesses, the appellant argued that allowing these witnesses
was an abuse of discretion because they were only called to discredit his
testimony. PFR File, Tab 1 at 10-11; IAF, Tab 94 at 36-37. However, the Board
has treated impeachment evidence as a relevant consideration for an
administrative judge. See Heller v. Department of the Army , 36 M.S.P.R. 675,
680 (1988) (finding that agency evidence that is offered to show possible bias of
a witness and to rebut the testimony of a witness was relevant and properly
admitted). Moreover, in granting the agency’s request to call additional
witnesses, the administrative judge noted that the witnesses were unable to testify
during the earlier portion of the hearing due to time constraints. IAF, Tab 79
at 1 n.1. Based on the foregoing, we find that the administrative judge properly
20
exercised his discretion in controlling the proceedings. See 5 C.F.R. § 1201.41(b)
(8).
Regarding the appellant’s witness requests denied by the administrative
judge, we similarly find no abuse of discretion. Like the agency, the appellant
requested rebuttal witnesses for the similar purpose of impeaching other witness
testimony. IAF, Tab 78. However, the administrative judge denied the
appellant’s requested witnesses because each of them had already testified at the
hearing and had an opportunity to rebut any of the agency’s proffered evidence.
IAF, Tab 79 at 1 n.1. Because an administrative judge has the authority to
exclude testimony that he believes would be irrelevant, immaterial, or unduly
repetitious, we find the administrative judge’s ruling to be a proper exercise of
discretion. Parker v. Department of Veterans Affairs , 122 M.S.P.R. 353, ¶ 21
(2015); 5 C.F.R. § 1201.41(b)(10). Moreover, the appellant has not adequately or
clearly explained in his petition for review how testimony from these witnesses
might have changed the outcome of his appeal. PFR File, Tab 1 at 16-18. As
such, he does not articulate a basis to grant review. See Hulett v. Department of
the Navy, 120 M.S.P.R. 54, ¶ 5 n.2 (2013) (declining to grant review based on an
appellant’s claim that the administrative judge improperly curtailed his cross
examination of the deciding official because the appellant did not explain what
information he hoped to obtain or how it would affect the outcome of his appeal).
Regarding the appellant’s argument that the administrative judge erred
when he denied the appellant’s request to reopen the record to admit purportedly
new and material evidence, PFR File, Tab 1 at 16-17, we find no abuse of
discretion. After the hearing, the appellant filed a motion to submit new
evidence, including an unsworn statement by a coworker dated July 16, 2017, a
letter of counseling issued to that same coworker in July 2012, a copy of that
coworker’s annual performance rating for 2011, and copies of emails dated
September 7, 2010, and September 16, 2012. IAF, Tab 87. The administrative
judge denied the motion. ID at 16-17 n.9. He reasoned that the record on appeal
21
closed with the conclusion of the hearing, and the information sought to be
admitted was available before the record closed on July 14, 2017. Id.; see
5 C.F.R. § 1201.59(a), (c) (explaining that the record normally closes at the
conclusion of the hearing, after which only evidence or argument that was not
readily available or that rebuts the other party’s evidence or argument submitted
just before the record closed will be accepted). The appellant has not specifically
disputed that finding on review, and we decline to disturb it.
In sum, the appellant has provided no evidence or compelling argument to
support his claims that the administrative judge’s rulings extended beyond this
well-established discretion. See Pecard v. Department of Agriculture ,
115 M.S.P.R. 31, ¶ 15 (2010) (stating that the abuse of discretion standard is a
very high standard and allows for great deference). Accordingly, we find that the
appellant has failed to show that the administrative judge abused his discretion or
committed reversible error.7
The appellant has not presented any new and material evidence that warrants a
reversal of the initial decision.
On review, the appellant seeks to resubmit his coworker’s June 16, 2017
statement and also attaches what appear to be unsigned and undated notes from
this coworker. PFR File, Tab 1 at 17-18, 29-34. Because the information
contained in these documents concerns events predating the close of the record
below and the individual who authored them testified on the appellant’s behalf,
7 The appellant also argues on review that “the agency preset the atmosphere at the start
of the trial[] by inserting armed guards and posting them next to [the appellant] as if
[the appellant] was a criminal on trial and under arrest to influence [the administrative
judge] with the appearance that he was violent.” PFR File, Tab 1 at 9. To the extent
that the appellant is arguing that the administrative judge was either biased in
permitting the armed guards or that their presence caused the administrative judge to
become biased, we find the appellant’s claims insufficient. 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.3d 1358, 1362-63 (Fed. Cir. 2002)). The appellant’s assertions here do not
meet this rigorous standard.
22
they provide no basis for granting review. See 5 C.F.R. § 1201.115(d) (providing
that the Board will grant a petition for review based on new evidence, and that to
constitute such evidence, the information contained in the documents, and not just
the documents themselves, must have been unavailable despite due diligence
when the record closed).
We have considered all of the appellant’s arguments on review but have
concluded that a different outcome is not warranted. Except as expressly
modified as outlined above, we affirm the initial decision and deny the
appellant’s petition for review.
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
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.
23
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
24
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
25
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.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
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.
26
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. | Stewart_Alvin_D_AT-0752-17-0123-I-1__Final_Order.pdf | 2024-04-30 | ALVIN DEREK STEWART v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-17-0123-I-1, April 30, 2024 | AT-0752-17-0123-I-1 | NP |
1,599 | https://www.mspb.gov/decisions/nonprecedential/Brown_Jacqueline_SF-1221-22-0006-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACQUELINE BROWN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-1221-22-0006-W-1
DATE: April 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Rogers , Esquire, San Antonio, Texas, for the appellant.
Kathryn Price , El Segundo, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal on the basis of res judicata.
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
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).
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 basis for res judicata, we AFFIRM the initial decision.
The appellant’s arguments do not provide a basis to disturb the initial decision.
In her petition, the appellant alleges bias on part of the administrative
judge, largely because of agency-favorable rulings and factual findings that he
made in her prior Board IRA appeals. Petition for Review (PFR) File, Tab 1
at 6-8. The appellant also asserts that she has reviewed other cases handled by
the administrative judge, which purportedly show “deep-rooted favoritism
towards agencies.”2 PFR File, Tab 4 at 5-6. The Board consistently has held
that, in making a claim of bias against an administrative judge, the appellant must
overcome the presumption of honesty and integrity that accompanies all
administrative adjudicators. Washington v. Department of the Interior ,
81 M.S.P.R. 101, ¶ 7 (1999). This presumption can be overcome only by a
substantial showing of personal bias. Williams v. U.S. Postal Service ,
2 To support this assertion, the appellant provides additional documents, i.e., documents
that she received following the issuance of the initial decision in response to a Freedom
of Information Act request that she filed with the Board. PFR File, Tab 4 at 8-10.
These documents, which pertain to the administrative judge’s adjudication of IRA
appeals, are not material to the outcome of this matter. Id.; 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).2
87 M.S.P.R. 313, ¶ 12 (2000). Here, the record is devoid of any indication of
personal bias; thus, the appellant’s assertions are unavailing.
The appellant contends that the administrative judge abused his authority.
PFR File, Tab 1 at 6-7. The appellant’s claims in this regard, however, seemingly
pertain to evidentiary rulings made by the administrative judge in prior Board
appeals for which a final decision has already been issued; thus, they are not
material to the outcome of this matter. Id. To the extent the appellant contends
that these rulings support her claim of bias, we find her contention unavailing.
See Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013)
(stating that the Board will not infer bias based on an administrative judge’s
case-related rulings).
The appellant challenges the administrative judge’s denial of her request
that he recuse himself from this matter. PFR File, Tab 1 at 6-7; Initial Appeal
File (IAF), Tab 9 at 13-14, Tab 17 at 1. We discern no basis to disturb the
administrative judge’s denial order; indeed, as set forth therein, the appellant’s
request failed to comport with 5 C.F.R. § 1201.42, which required her (1) to file
her request as soon as she had reason to believe that there was a basis for
disqualification and (2) to provide the reasons for her recusal request in an
affidavit or sworn statement under 28 U.S.C. § 1746. IAF, Tab 17 at 1; see
5 C.F.R. § 1201.42(b). Moreover, the appellant did not seek interlocutory review
of the administrative judge’s denial of her request. See 5 C.F.R. § 1201.42(c)
(stating that, if an administrative judge denies a request for withdrawal, the party
seeking withdrawal may request certification of the issue to the Board as an
interlocutory appeal and that failure to request certification is considered a waiver
of the withdrawal request). Thus, the appellant’s challenge is unavailing.
We modify the initial decision to clarify the basis for res judicata.
Under the doctrine of res judicata, 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, 3373
(1995). Res judicata precludes parties from relitigating issues that were, or could
have been, raised in the prior action and 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. For res judicata
purposes, a cause of action is the set of facts that gives an appellant the right to
seek relief from an agency. Jennings v. Social Security Administration ,
123 M.S.P.R. 577, ¶ 25 (2016).
Here, we agree with the administrative judge’s conclusion that the instant
appeal is barred by res judicata; however, we take this opportunity to clarify the
basis for this conclusion. IAF, Tab 26, Initial Decision at 33. In the instant
appeal, the appellant has not raised any personnel actions that she could not have
raised in a prior Board IRA appeal for which a final judgment on the merits has
already been issued. See Peartree, 66 M.S.P.R. at 337 (explaining that res
judicata precludes parties from relitigating issues that were, or could have been ,
raised in the prior action). Indeed, the appellant had previously exhausted all of
the personnel actions at issue with the Office of Special Counsel; however, she
elected to challenge only one of these actions in her prior Board appeal. Brown v.
Department of the Air Force , MSPB Docket No. SF-1221-19-0481-W-1, Initial
Appeal File, Tab 1 at 19-35, Tab 18 at 7; IAF, Tab 9 at 20. She may not now
reexhaust these personnel actions and attempt to litigate them under new legal
theories. See Inman v. Department of Veterans Affairs , 115 M.S.P.R. 41, ¶ 15
(2010) (identifying personnel actions as the “cause of action” for purposes of
applying res judicata to an IRA appeal) ; see also Sabersky v. Department of
Justice, 91 M.S.P.R. 210, ¶¶ 7-8 (2002) (explaining that res judicata bars an
appellant from challenging a cause of action under a new legal theory). Thus,
although we agree that this appeal should be dismissed on the basis of res
judicata, we clarify the reason therefor. 4
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.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.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. 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_Jacqueline_SF-1221-22-0006-W-1__Final_Order.pdf | 2024-04-30 | JACQUELINE BROWN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-1221-22-0006-W-1, April 30, 2024 | SF-1221-22-0006-W-1 | NP |
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