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1,800 | https://www.mspb.gov/decisions/nonprecedential/Laurenzano_James_G_PH-1221-17-0226-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES G. LAURENZANO, MD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-17-0226-W-1
DATE: April 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James G. Laurenzano, MD , Chicopee, Massachusetts, pro se.
Michael J. Berger , Esquire, Brooklyn, New York, 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, as he failed to meet his burden of proving that he made a protected
disclosure. 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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
hold that the appellant proved that he exhausted his administrative remedies with
the Office of Special Counsel (OSC), we AFFIRM the initial decision.
BACKGROUND
On June 30, 2013, the agency appointed the appellant to the position of
Primary Care Physician, subject to a 2-year trial period. Initial Appeal File
(IAF), Tab 10 at 376. On April 25, 2014, the agency informed the appellant that
he would be terminated during his trial period, as the deciding official concurred
with the findings of a Professional Standards Board (PSB) that the appellant
should be separated. Id. at 11-12. The appellant’s termination took effect on
May 10, 2014. Id. at 10-11.
The appellant filed a complaint seeking corrective action with OSC in
2016, alleging that, in reprisal for making protected disclosures, the agency took
a number of actions against him, culminating in his termination. IAF, Tab 17
at 9-10, 12-31. In February 2017, OSC closed the investigation into the
appellant’s complaint with no further action and this IRA appeal to the Board
followed. IAF, Tab 15,2 Tab 17 at 9-11.
2 The administrative judge noted that the appellant’s initial appeal was difficult to
comprehend and permitted him to refile. IAF, Tab 13 at 1. The appellant did so, and
3
After holding a hearing, the administrative judge issued an initial decision
in which he found that the Board has jurisdiction over the appeal but denied the
appellant’s request for corrective action. IAF, Tab 39, Initial Decision (ID). The
administrative judge concluded that the appellant failed to meet his burden of
proving by preponderant evidence that he made a protected disclosure. ID at 6-9.
The appellant has filed a petition for review, setting forth a single argument that
the administrative judge incorrectly stated in the initial decision that the appellant
testified that he had problems with his memory caused by a medical condition.
ID at 5; Petition for Review (PFR) File, Tab 1 at 1-3. The appellant raises no
other issues with the initial decision. PFR File, Tab 1 at 1-3. The agency has
responded to the appellant’s petition for review, agreeing that the administrative
judge misconstrued the appellant’s hearing testimony regarding his memory, but
arguing that the error was not material because it did not impact the overall
conclusion of the initial decision. PFR File, Tab 3 at 4-7.
DISCUSSION OF ARGUMENTS ON REVIEW3
The Board has jurisdiction over this appeal.
In an IRA appeal, the Board may only consider matters that the appellant
first raised before OSC. Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011); see Rebstock Consolidation v. Department of
Homeland Security , 122 M.S.P.R. 661, ¶ 9 (2015). The initial decision does not
reach a conclusion as to whether the appellant exhausted his administrative
remedies with OSC. ID at 1-12. A disposition on this issue is paramount
because, in order for the Board to have jurisdiction over an IRA appeal, an
appellant, among other requirements, must first prove by preponderant evidence
that he exhausted his administrative remedies with OSC. Salerno v. Department
we will cite to the refiled initial appeal. IAF, Tab 15.
3 On December 12, 2017, the National Defense Authorization Act for Fiscal Year 2018
(NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law. Section 1097 of the
NDAA amended various provisions of title 5 of the United States Code. Our decision in
this appeal is unaffected by any amendments set forth in the NDAA.
4
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); 5 C.F.R. § 1201.57(c)(1). The
purpose of this exhaustion requirement with OSC prior to filing an IRA appeal
with the Board is to give OSC “the opportunity to take corrective action before
involving the Board in the case.” Ward v. Merit Systems Protection Board ,
981 F.2d 521, 526 (Fed. Cir. 1992). 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, 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. Thus, the substantive requirements of exhaustion are met when
an appellant has provided OSC with a sufficient basis to pursue an investigation
that might lead to corrective action. Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶ 10.
An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that he 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, 116 M.S.P.R. 135, ¶ 8; see Benton-Flores v.
Department of Defense , 121 M.S.P.R. 428, ¶ 6 (2014) (outlining how an appellant
can prove exhaustion through submission of correspondence with OSC
concerning his allegations). In the alternative, exhaustion may be proved through
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.
Chambers, 2022 MSPB 8, ¶ 11; Mason, 116 M.S.P.R. 135, ¶ 8.
Here, the appellant submitted the close-out letter from the OSC complaint
that he filed with OSC in 2016. IAF, Tab 17 at 9-10. The close-out letter
detailed the alleged protected disclosures that the appellant made and personnel
5
actions purportedly taken by the agency against him in reprisal. Id. The alleged
protected disclosures consisted of the following: (1) the appellant advising his
supervisors of excessive heat in his office resulting in a violation of the Health
Insurance Portability and Accountability Act because he had to leave his door
open when treating patients; (2) the appellant advising his supervisors that his
first-line supervisor was interfering and micromanaging his care of patients;
(3) the appellant questioning his first-line supervisor’s decision to prescribe
Percocet to a patient and the prescription practice of a Nurse Practitioner; and
(4) the appellant informing his first-line supervisor that other members of the
medical team were ordering lab tests of his patients and putting him as the
prescribing doctor. Id. at 9. The personnel actions included the agency
suspending the appellant’s privileges to prescribe narcotics, conducting three
reviews of his work by a PSB, and his termination. Id. at 10. OSC closed the
investigation into the appellant’s complaint with no further action and advised
him of his right to file an IRA appeal with the Board. Id. at 9-11. We find that
the appellant proved by preponderant evidence that he exhausted his
administrative remedies with OSC on these claims prior to filing the instant IRA
appeal. The same alleged protected disclosures and personnel actions that the
appellant first exhausted with OSC were considered by the administrative judge
in the initial decision.4 ID at 2, 6-10. We also agree with the administrative
judge’s implicit finding that the appellant made nonfrivolous allegations that he
made protected disclosures that were a contributing factor in the agency’s
decision to take a personnel action. Therefore, the appellant has established
jurisdiction over his appeal.
The appellant failed to prove that he made a protected disclosure.
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
4 On review, the appellant raises no issue with the characterization of his purported
protected disclosures and retaliatory personnel actions. PFR File, Tab 1.
6
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). 5 U.S.C. § 1221(e);
Salerno, 123 M.S.P.R. 230, ¶ 5. 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 (Fed. Cir. 1999);
Aquino v. Department of Homeland Security , 121 M.S.P.R. 35, ¶ 10 (2014).
After a review of the record, we agree with the administrative judge that
the appellant did not meet his burden of proving by preponderant evidence that he
made a protected disclosure. This conclusion is supported by the evidence of
record. 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 in the initial
decision when she considered the evidence, drew appropriate inferences,
and made reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
As the appellant pointed out in his petition for review and the agency in its
response, the administrative judge erred when stating in the initial decision that
the appellant testified that he had problems with his memory caused by a medical
condition. ID at 5; PFR File, Tab 1 at 1-3, Tab 3 at 5. In order for the Board to
grant a petition for review based on a factual error, such error must be material.
Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 36 (2016); 5 C.F.R.
§ 1201.115(a)(1). A material error is one that is of sufficient weight to warrant
an outcome different from that of the initial decision. 5 C.F.R. § 1201.115(a)(1).
The error in this case had no bearing on the overall conclusion that the appellant
failed to prove by preponderant evidence that he made a protected disclosure.
This disposition does not rely on the appellant’s hearing testimony, and therefore
7
the administrative judge’s error in his assessment of the appellant’s testimony
does not necessitate a remand or any other reassessment of the appellant’s
testimony. See Social Security Administration v. Long , 113 M.S.P.R. 190, ¶ 25
(2010) (stating that, when the record is sufficiently developed on an issue and
there is no need to rely upon witness demeanor, it is not necessary to remand the
case), aff’d, 635 F.3d 526 (Fed. Cir. 2011). Furthermore, the administrative
judge’s error did not infringe on any of the appellant’s substantive rights. 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).
Beyond the appellant’s argument regarding the mischaracterization of a
single portion of his hearing testimony, he does not challenge the administrative
judge’s finding that he failed to make a protected disclosure. PFR File, Tab 1.
As found in the initial decision, the appellant’s request for corrective action must
be denied on these grounds. ID at 6-9, 11; 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 protected).
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.
8
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
9
for Merit Systems Protection Board appellants before the 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
10
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
11
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.
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. | Laurenzano_James_G_PH-1221-17-0226-W-1__Final_Order.pdf | 2024-04-12 | null | PH-1221-17-0226-W-1 | NP |
1,801 | https://www.mspb.gov/decisions/nonprecedential/Bowden_Dichondra_V_SF-1221-18-0323-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DICHONDRA V. BOWDEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-18-0323-W-1
DATE: April 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dichondra V. Bowden , Moreno Valley, California, pro se.
Thomas L. Davis , 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
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, except as expressly MODIFIED
to expand the administrative judge’s analysis as to why the appellant failed to
prove that her August 17, 2015 email was a contributing factor in her removal and
to correct the administrative judge’s analysis as to why the agency met its burden
of proving that it would have taken the same personnel action absent any
protected disclosures, we AFFIRM the initial decision.
BACKGROUND
The appellant was a Nursing Assistant at the agency’s Community Living
Center in Loma Linda, California. Initial Appeal File (IAF), Tab 1 at 6, Tab 11
at 22. On August 17, 2015, the appellant emailed the Medical Center Director
and an Equal Employment Opportunity (EEO) representative describing
inappropriate conduct of her supervisor and coworkers, including that they were
leaving work early, coming in late, taking extended lunches, doing homework
instead of working, and not properly attending to the residents. IAF, Tab 6 at 60.
On October 9, 2016, the appellant again emailed the Medical Center Director,
describing an incident in which a fellow nurse attacked her. IAF, Tab 11
at 60-61. She claimed that she no longer felt safe working with this nurse. Id.
On November 12, 2016, the appellant forwarded her October 2016 email to the
Medical Center Director and added that she had been facing harassment and2
retaliation at work. Id. at 60. She further described the inappropriate behavior of
coworkers, such as that they talked on their phones, watched movies, did
homework instead of working, took 1.5 hour lunches, and did not attend to
residents in a timely manner. Id. The Medical Center Director responded saying
that she would look into the concerns. Id.
On June 26, 2017, the agency proposed the appellant’s removal for
294.5 hours of absence without leave (AWOL) between January 23 and May 22,
2017, and her failure to follow proper leave requesting procedures on May 22 and
April 17, 2017. IAF, Tab 10 at 15-18. On July 26, 2017, the Medical Center
Director sustained the charges in the proposal and affirmed the removal. Id.
at 35-37.
Prior to the issuance of the removal decision, on July 17, 2017, the
appellant filed a complaint with the Office of Special Counsel (OSC), alleging
that the agency proposed her removal in retaliation for whistleblowing.
IAF, Tab 9 at 2-8. She later amended her OSC complaint to include the agency’s
removal decision. IAF, Tab 15 at 1-2 & n.1. The appellant alleged that she made
protected disclosures in her August 17, 2015, October 9, 2016, and November 12,
2016 emails. IAF, Tab 10 at 33. On February 23, 2018, OSC issued two closeout
letters to the appellant, and informed her that she could seek corrective action
from the Board. Id. at 19-20. The appellant subsequently filed this IRA appeal.
IAF, Tab 1 at 1, 6.
The administrative judge determined that the appellant had exhausted her
administrative remedies with OSC and made nonfrivolous allegations that
she engaged in whistleblowing activity by making protected disclosures that were
a contributing factor in the agency’s decision to remove her. IAF, Tab 15 at 2. A
hearing was held on May 30, 2018. IAF, Tab 23, Hearing Compact Disc (HCD).
Following the hearing, the administrative judge issued an initial decision denying
the appellant’s request for corrective action. IAF, Tab 24, Initial Decision (ID)
at 1. 3
The administrative judge found that the appellant’s three emails contained
protected disclosures, but also found that some of the appellant’s disclosures in
her November 12, 2016 email were not protected. ID at 4-8. Turning to whether
the appellant’s disclosures were a contributing factor in the agency’s decision, the
administrative judge found that the appellant’s first disclosure failed to satisfy the
knowledge prong of the “knowledge/timing” test because the email addresses to
which the appellant sent the August 17, 2015 email were incorrect. ID at 9.
Further, the Medical Center Director, who was also the deciding official in the
appellant’s removal, testified that she did not receive this email due to the
appellant’s error. Id.; HCD, Track 7 at 2:40 (testimony of deciding official). As
such, the administrative judge found that the appellant’s August 17, 2015
disclosure was not a contributing factor in her removal. Id. However, because
the deciding official received the second and third email disclosures, and the
removal occurred less than 1 year later, the administrative judge found that the
appellant met her burden to prove that the other two disclosures were contributing
factors in her removal. ID at 9-10.
Finding that the appellant established her prima facie case, the
administrative judge turned to whether the agency proved, by clear and
convincing evidence, that it would have taken the personnel action in the absence
of the protected disclosures. ID at 10-12. In doing so, she analyzed the factors
for making such a determination set forth in Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). Id. In addressing the first
Carr factor, the strength of the agency’s evidence in support of the removal, the
administrative judge found that the agency had ample evidence to conclude that
the appellant was AWOL for at least 238.5 hours, and that this factor weighed in
the agency’s favor. ID at 10-11. Regarding the second Carr factor, the
administrative judge found insufficient evidence to identify a retaliatory animus
on the part of the deciding official. ID at 12. She noted the deciding official’s
testimony that she referred the appellant’s allegation of coworker assault for4
investigation and assumed the nursing leadership was investigating the other
issues raised by the appellant. Id. Finally, regarding the third Carr factor, the
administrative judge found that there was no evidence as to whether the agency
took similar actions against similarly situated non-whistleblowers. Id. As such,
she did not consider the factor further. In weighing the three factors, the
administrative judge found that the agency met its burden to show that it would
have removed the appellant even in the absence of her whistleblowing activity.
Id.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded, and the appellant has replied to the
agency’s response. PFR File, Tabs 4-5.2
DISCUSSION OF ARGUMENTS ON REVIEW
The parties have not disputed the administrative judge’s finding of Board
jurisdiction, and we see no reason to disturb it. IAF, Tab 15 at 2; ID at 1. To
prevail on the merits of an IRA appeal, an appellant must meet her initial burden
of proving by preponderant evidence 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). Karnes v.
Department of Justice , 2023 MSPB 12, ¶ 8.
2 In her reply, the appellant presents new arguments. PFR File, Tab 5 at 1-5. For
example, she argues that the agency constructively suspended her, disputes some of the
agency’s AWOL specifications, disputes the penalty of removal, and alleges
constitutional and procedural errors. Id. She also attaches documents to her reply. We
decline to consider these new arguments and the attachments. Under 5 C.F.R.
§ 1201.114(a)(4), a reply is limited to the factual and legal issues raised in the response
to the petition for review and may not raise new allegations of error. Boston v.
Department of the Army , 122 M.S.P.R. 577, ¶ 5 n.3 (2015 ). The agency limited its
response to addressing the issues the appellant raised in her petition for review.
PFR File, Tab 4 at 6. Thus, her new arguments and evidence are not a basis to grant
review. 5
The administrative judge properly identified the protected disclosures and
personnel actions at issue in this appeal.
On review, neither party disagrees with the administrative judge’s findings
that the appellant’s August 17, 2015 and October 9, 2016 emails were protected.
ID at 5-7. They also do not challenge her determination that the appellant’s
November 12, 2016 email was protected in part. ID at 7-8. We decline to disturb
these findings on review.
The appellant appears to raise additional disclosures and activities on
review. PFR File, Tab 1 at 3-4. For example, she references disclosures made to
various persons on March 7, March 28, and November 7, 2014. Id. She also
appears to raise new personnel actions on review, including that the agency wrote
her up for 9.25 hours of AWOL and failed to remedy an alleged hostile work
environment created by her coworkers. PFR File, Tab 1 at 4, 6-7; IAF, Tab 10
at 87-89. The appellant raised only some of these matters below, specifically, her
November 7, 2014 alleged disclosure and her hostile work environment claim.
IAF, Tab 6 at 4 -6, 8-9, Tab 17 at 1. Further, she has not shown that she
exhausted any of these matters with OSC. IAF, Tabs 7, 9, 10 at 20. Thus, we
decline to consider these claims on review. 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 OSC (citation
omitted)); Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980)
(finding that an argument raised for the first time in a petition for review will not
be considered absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence).3
3 The appellant also cites these additional disclosures as evidence that the deciding
official had knowledge of the content of her disclosures for purposes of demonstrating
that they were a contributing factor in her removal. PFR File, Tab 1 at 3. This
argument appears to misunderstand that the administrative judge found that the
appellant proved contributing factor regarding two of the three disclosures raised below.
ID at 9-10. To the extent that she is arguing that these previously unraised disclosures
demonstrate knowledge of her August 17, 2015 disclosure, we decline to consider it on
review. Banks, 4 M.S.P.R. at 271. Moreover, this argument in no way demonstrates6
We agree with the administrative judge’s finding that the appellant did not prove
that her August 17, 2015 email was a contributing factor in her removal, as
modified.
The administrative judge found that the appellant failed to prove that the
individual who proposed her removal was aware of her disclosures or that those
disclosures were a contributing factor in her proposed removal. ID at 10. The
administrative judge also found that the latter two of the three disclosures made
by the appellant were contributing factors in her removal. ID at 9-10. The
parties do not dispute these findings, and we see no reason to disturb them on
review.
As to the first disclosure, the August 17, 2015 email, the administrative
judge found that, because the recipients’ email addresses were incorrect, they had
no knowledge of the disclosure. ID at 9. She additionally found that, although
the appellant claimed to have verbally told one of the recipients, the EEO
representative, about her disclosure, the appellant admitted that she did not go
into any detail in her verbal complaint. Id. Additionally, the administrative
judge observed that this individual was not involved in the appellant’s removal
and the appellant did not allege that he influenced either the proposing or
deciding official in the matter. Id.
On review, the appellant submits documents regarding her August 17, 2015
email, apparently in an attempt to prove that it was, in fact, delivered to its
intended recipients. PFR File, Tab 1 at 9-12, 14-15. She asserts that the EEO
representative had knowledge of her August 17, 2015 disclosure because that
individual was involved in and present at her EEO mediation, at which the
appellant “acknowledged” the disclosure. Id. at 3-4.
A protected disclosure is a contributing factor if it in any way affects an
agency’s decision to take a personnel action. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 14 (2012). An employee can demonstrate that a disclosure
was a contributing factor in a personnel action through circumstantial evidence,
that the deciding official had knowledge specifically of the August 17, 2015 email. 7
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. Id. An appellant may also satisfy the knowledge prong
of this knowledge/timing test by proving that the official taking the action had
constructive knowledge of the disclosure, even if she did not have actual
knowledge. Id., ¶ 11. An appellant may establish constructive knowledge by
showing that an individual with actual knowledge of the disclosure influenced the
official accused of taking the retaliatory action. Id.
Here, the administrative judge credited the testimony of the deciding
official that she never received the appellant’s August 17, 2015 email. ID at 9.
Apparently to dispute this finding, the appellant has submitted a printout from her
personal email account, reflecting that she forwarded the email to herself on
October 26, 2016, and she “received” it on the same date. PFR File, Tab 1
at 9-10. We decline to consider this evidence on review. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) (finding, 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). Here, the appellant’s evidence was available
before the record closed at the end of the hearing on May 30, 2018. IAF, Tab 16
at 1; HCD; see 5 C.F.R. § 1201.59(a) (providing that, if there is a hearing, the
record ordinarily will close at its conclusion). Even if we were to consider this
evidence, it does not show that the August 17, 2015 email was successfully
delivered to anyone but the appellant. PFR File, Tab 1 at 9-12, 14-15. Thus, it
does not provide sufficiently sound reasons to disturb the administrative judge’s
implicit demeanor-based credibility finding that the deciding official credibly
denied knowledge of the disclosure. See Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating that the Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly8
or implicitly, on observing the demeanor of witnesses testifying at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so); see Purifoy v. Department of Veterans Affairs , 838 F.3d
1367, 1373 (Fed. Cir. 2016) (requiring that the Board give “special deference” to
an administrative judge’s demeanor-based credibility determinations, “[e]ven if
demeanor is not explicitly discussed.”).
We also disagree with the appellant’s argument regarding the EEO
representative and any subsequent involvement he had in the appellant’s
mediation. The administrative judge found that the appellant did not prove that
the EEO official had knowledge because the appellant testified that she did not
provide him with any details regarding the disclosure. ID at 9. Even if we were
to consider what appears to be new evidence on review regarding the EEO
official’s knowledge of the appellant’s disclosure, the appellant still has not
offered any specific details to suggest that she provided him with sufficient
information to qualify her statements as protected. See Salerno v. Department of
the Interior, 123 M.S.P.R. 230, ¶ 6 (2016) (explaining that disclosures must be
specific and detailed, not vague allegations of wrongdoing). Perhaps more
importantly, she has not disputed the administrative judge’s finding that she
failed to show that the EEO representative was involved in her removal. ID at 9.
Thus, we discern no reason to disturb the administrative judge’s findings that the
deciding official did not have actual or constructive knowledge of the appellant’s
August 17, 2015 disclosure. Id.
The Board has held that, if an administrative judge determines that an
appellant has failed to satisfy the knowledge/timing test, she shall consider other
evidence, such as evidence pertaining to the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding officials, and whether they had a
desire or motive to retaliate against the appellant. Dorney, 117 M.S.P.R. 480,
¶ 15. The administrative judge’s initial decision did not address the alternative to9
the knowledge/timing test set forth in Dorney. ID at 8-10. Because the record is
fully developed, we modify the initial decision to consider this alternative on
review. Nonetheless, we still find that the appellant did not establish contributing
factor as to the August 17, 2015 email.
As explained in more detail below, the agency put forth strong evidence, in
the administrative record and at the hearing, establishing that the agency removed
the appellant because she was in an AWOL status for over 200 days. IAF, Tab 10
at 106-113. Although the appellant showed that her disclosure was directed at the
deciding official, there is no evidence suggesting that the deciding official was
aware of the August 17, 2015 email or that she had a desire or motive to retaliate
against the appellant based on its contents. The only person the appellant has
proven successfully received the email was herself. PFR File, Tab 1 at 9-12,
14-15; HCD, Track 7 at 2:40 (testimony of the deciding official). Accordingly,
we modify the initial decision to find that, even considering evidence other than
the knowledge/timing test, the appellant failed to meet the contributing factor
standard as to the August 17, 2015 email.
We agree with the administrative judge’s finding that the agency proved by clear
and convincing evidence that it would have removed the appellant absent her
whistleblowing disclosures, as modified.
The administrative judge found that the agency had ample evidence to
conclude that the appellant was AWOL for at least 238.5 hours, and that this
factor weighed in the agency’s favor. ID at 10-11. She further found insufficient
evidence to find a retaliatory animus on the part of the deciding official.
ID at 12. Finally, she found no evidence as to whether the agency took similar
actions against similarly situated non-whistleblowers. Id.
When an appellant meets her burden to establish by preponderant evidence
that her protected disclosure was a contributing factor in the challenged personnel
action, the burden shifts to the agency to prove by clear and convincing evidence
that it would have taken the same personnel action in the absence of the10
appellant’s whistleblowing. Soto v. Department of Veterans Affairs , 2022 MSPB
6, ¶ 6. Clear and convincing evidence is that measure of degree of proof that
produces in the mind of the trier of fact a firm belief as to the allegations sought
to be established. Id., ¶ 9 n.3. 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, and (3) 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 an apparent challenge to the strength of the agency’s evidence in support
of the removal, the appellant cites a union contract for the proposition that
AWOL is not supposed to be used for disciplinary reasons. PFR File, Tab 1 at 8;
IAF, Tab 6 at 8, 67. The provision cited by the appellant states that “[n]o
approved leave or approved absence will be a basis for disciplinary action.” IAF,
Tab 6 at 67. However, there is nothing in the record to demonstrate that the
appellant’s AWOL was an “approved absence,” so this provision has no bearing
on this case.
The appellant appears to further challenge the strength of the agency’s
evidence in support of the removal by pointing out that she was allowed to use
leave without pay instead of AWOL in the past. PFR File, Tab 1 at 5; IAF, Tab 6
at 7, 14-27. Although the appellant alleges on review that in December of 2006,
she was not disciplined for AWOL, the record reflects that more recently the
agency had taken such action. PFR File, Tab 1 at 5. On September 11, 2015, the
agency issued a letter of reprimand for the appellant’s numerous instances of
AWOL and one instance of failure to follow leave requesting procedures. IAF,
Tab 10 at 87-91. Likewise, on May 13, 2016, the agency suspended the appellant
for 7 days for numerous instances of AWOL and failure to follow leave request
procedures. Id. at 93-98. As such, we agree with the administrative judge’s11
analysis that the first Carr factor weighed in favor of the agency.4 See Soto,
2022 MSPB 6, ¶ 13 n.4 (explaining that in a chapter 75 adverse action appeal the
agency’s proof of its charges may lend support to a finding that the agency
proved by clear and convincing evidence that it would have taken the same action
in the absence of the appellant’s protected whistleblowing). The appellant does
not otherwise challenge the administrative judge’s findings regarding the Carr
factor analysis.
We take this opportunity to modify the administrative judge’s findings with
regard to the second and third Carr factors. We find that the administrative judge
took an overly restrictive view in finding that the deciding official had no motive
to retaliate. The administrative judge’s analysis failed to consider the fact that
the deciding official, as the Medical Center Director, was seemingly responsible
for the conduct and behavior of subordinate nurses. Given that the appellant’s
disclosures alleged inappropriate conduct on the part of those nurses, these
disclosures could have reflected poorly on the deciding official and the overall
quality of care those nurses provided under the deciding official’s management.
See Smith v. Department of the Army , 2022 MSPB 4, ¶ 29 (finding that the
managers who proposed and decided not to select an appellant for a vacancy had
some motive to retaliate because the appellant’s disclosures reflected on them as
representatives of the general institutional interests of the agency, which is
sufficient to establish a retaliatory motive). Accordingly, this factor should have
weighed, at least to some degree, in the appellant’s favor.
As for the third Carr factor, the administrative judge found no evidence of
whether the agency took similar action against similarly situated
non-whistleblowers. ID at 12. Although the deciding official’s analysis of the
4 In addition to the evidence demonstrating that the appellant was AWOL for at least
238.5 hours, the agency’s table of penalties denotes that the third offense of unexcused
or unauthorized absence is punishable by up to removal. IAF, Tab 10 at 53. The
removal at issue in this appeal represents the appellant’s third offense for such conduct.
Id. at 87-98 (setting forth the appellant’s reprimand and 7-day suspension for
absence-related charges). 12
Douglas factors contains reference to three other Medical Center employees being
removed based on similar charges to those of the appellant, the record is silent as
to whether or not these employees were whistleblowers. IAF, Tab 11 at 6; see
Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018)
(finding that Carr factor three only concerns non-whistleblowers and the
treatment of similarly situated whistleblowers has no bearing on that factor).
While the administrative judge found that this factor was, effectively, neutral, we
are not persuaded. ID at 12. It appears the agency was aware of these potential
comparators but failed to produce evidence as to whether they were
whistleblowers. While the agency does not have an affirmative burden to produce
evidence concerning each and every Carr factor, the U.S. Court of Appeals for
the Federal Circuit has held that “the absence of any evidence relating to Carr
factor three can effectively remove that factor from the analysis,” but that the
failure to produce such evidence if it exists “may be at the agency’s peril,” and
“may well cause the agency to fail to prove its case overall.” Soto, 2022 MSPB
6, ¶ 18 (quoting Whitmore v. Department of Labor , 680 F.3d 1353, 1374-74 (Fed.
Cir. 2012)). Here, we find that the absence of any evidence on Carr factor 3 cuts
“slightly against the Government.” See Miller v. Department of Justice , 842 F.3d
1252, 1262 (Fed. Cir. 2016) (reaching the same conclusion when the agency
produced evidence that there were no similarly situated nonwhistleblowers under
the allegedly retaliatory official, but did not present evidence as to agency
practices more broadly).
Nonetheless, based on our analysis of the Carr factors, we agree with the
administrative judge that the agency met its burden to prove by clear and
convincing evidence that it would have removed the appellant absent her
disclosures. Although there may have been some motive to retaliate against the
appellant on the part of the deciding official and an absence of evidence regarding
nonwhistleblowers, we find that the evidence in support of the action outweighed
any such motive. The Board does not view the Carr factors as discrete elements,13
each of which the agency must prove by clear and convincing evidence. Wilson
v. Department of Veterans Affairs , 2022 MSPB 7, ¶ 43. Rather, the Board will
weigh the factors together to determine if the evidence is clear and convincing as
a whole. Id. The appellant’s extensive improper AWOL coupled with the prior
discipline for similar conduct strongly supports the agency’s decision. On the
other hand, the minimal evidence of a retaliatory motive and the absence of any
evidence regarding nonwhistleblowers cuts slightly against the Government and
only minimally detracts from the agency’s evidence overall. Thus, considering
the evidence as a whole, Carr factors 2 and 3 are insufficient to overcome the
weight of Carr factor 1.
On review, the appellant additionally references the agency’s failure to
grant her request for a reasonable accommodation to transfer to another unit.
PFR File, Tab 1 at 4-6; IAF, Tab 1 at 6. To the extent the appellant is claiming
that her removal was the result of disability discrimination, the Board lacks
jurisdiction over this claim in the context of her IRA appeal. See Maloney v.
Executive Office of the President, Office of Administration , 2022 MSPB 26, ¶ 40.
For the reasons stated above, we DENY the appellant’s petition for review
and AFFIRM the initial decision except as expressly 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
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.14
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 representation15
for Merit Systems Protection Board appellants before the 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 file16
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
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.18 | Bowden_Dichondra_V_SF-1221-18-0323-W-1__Final_Order.pdf | 2024-04-12 | DICHONDRA V. BOWDEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-18-0323-W-1, April 12, 2024 | SF-1221-18-0323-W-1 | NP |
1,802 | https://www.mspb.gov/decisions/nonprecedential/Hautala_HeidiPH-844E-21-0059-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HEIDI HAUTALA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-844E-21-0059-I-1
DATE: April 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melissa Lanouette , Esquire, Boston, Massachusetts, 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
(OPM) that denied her 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 supplement the administrative judge’s analysis as to why
the appellant failed to meet element (2) for determining eligibility for disability
retirement benefits under FERS, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed as a Nurse at the Department of Veterans
Affairs Medical Center (VAMC) in Brockton, Massachusetts, until she resigned
effective March 1, 2020. Initial Appeal File (IAF), Tab 9 at 16, 167, 197. On
November 18, 2019, she applied for FERS disability retirement benefits with
OPM. Id. at 159-60. In her statement of disability, the appellant asserted that she
became disabled in August 2019, due to the following medical conditions:
anxiety, depression, post-traumatic stress disorder (PTSD), and panic attacks. Id.
at 159. The appellant asserted that the “ongoing panic attacks and anxiety limit
[her] performance [and] attendance.” Id. at 159. She further alleged that her
medical conditions affected her ability to drive to work and respond in emergency
situations. Id. OPM issued an initial decision denying the appellant’s application
for FERS disability retirement benefits after finding that she did not meet all the
criteria for disability retirement, and she requested reconsideration. Id. at 15-154.2
She submitted additional documentation, but OPM issued a reconsideration
decision sustaining its initial decision. Id. at 4-11.
The appellant filed an appeal with the Board challenging OPM’s final
decision and requesting a hearing. IAF, Tab 1 at 2, 4-6. Following a telephonic
hearing, the administrative judge issued an initial decision affirming OPM’s
reconsideration decision. IAF, Tab 18, Initial Decision (ID) at 1, 13. The
administrative judge found that the appellant had more than 18 months of
creditable Federal civilian service with the agency and a deficiency in attendance,
and that the agency certified that it could not accommodate the appellant’s mental
health conditions and reassignment was not possible. ID at 11. The
administrative judge also found that the appellant’s medical records and
testimony established that she suffered from mental health conditions while
employed as a Nurse at the Brockton VAMC. Id. Nevertheless, he determined
that the appellant had not shown by preponderant evidence that her medical
conditions were expected to continue to be disabling for at least 1 year from the
date that the application for disability retirement benefits was filed, and that the
medical evidence only proved that she was unable to work as a nurse at the
Brockton VAMC. Id. The administrative judge concluded that the Board has
affirmed the denial of disability claims when the evidence shows that an
employee’s health problems were caused by a reaction to a particular workplace.
ID at 12.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has filed a response to the petition for
review. PFR File, Tab 3. The appellant has also filed a motion for leave to
submit additional evidence.2 PFR File, Tab 5.
2 Following the close of the record on review, the appellant submitted a motion for
leave to file an additional pleading. PFR File, Tab 5. In the appellant’s motion, she
requests leave to submit “a decision that grants her Department of Veteran Affairs’
Benefits [sic] to permit her to seek additional schooling as she became unable to
perform her past work in part due to her service-related disabilities.” Id. at 2.
According to the appellant, this decision supports her claim for disability retirement.3
DISCUSSION OF ARGUMENTS ON REVIEW
In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence.
Christopherson v. Office of Personnel Management , 119 M.S.P.R. 635, ¶ 6
(2013); 5 C.F.R. § 1201.56(b)(2)(ii). To be eligible for a disability retirement
annuity under FERS, an appellant must establish the following elements: (1) she
completed at least 18 months of creditable civilian service; (2) while employed in
a position subject to FERS, she became disabled because of a medical condition,
resulting in a deficiency in performance, conduct, or attendance, or, if there is no
such deficiency, the disabling medical condition is incompatible with either
useful and efficient service or retention in the position; (3) the disabling
condition is expected to continue for at least 1 year from the date that the
application for disability retirement benefits was filed; (4) accommodation of the
disabling medical condition in the position held must be unreasonable; and
(5) she did not decline a reasonable offer of reassignment to a vacant position.
Christopherson, 119 M.S.P.R. 635, ¶ 6; 5 C.F.R. § 844.103(a).
The administrative judge found, and the parties do not dispute on review,
that the appellant met the 18-month service requirement under FERS at the time
she filed her application and her employing agency “certified that it could not
accommodate [her] mental health conditions and reassignment was not possible.”
PFR File, Tab 1 at 4-11, Tab 3 at 4-6; ID at 11; IAF, Tab 9 at 168-69. We discern
no basis for disturbing these findings. Thus, the appellant’s entitlement to a
Id. However, she has not specifically explained how this evidence is material or related
to her application for disability retirement benefits or the reports from her medical
providers linking the disabling medical conditions she identified in her disability
retirement application to her specific work environment and acknowledging that her
conditions improved when not in that work environment. 5 C.F.R. § 1201.115; see
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); see also Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980). The appellant has also failed to indicate
whether this evidence is new or was not readily available before the record closed. See
Russo, 3 M.S.P.R. at 349. Accordingly, the appellant’s motion for leave to submit
additional evidence is denied.4
disability retirement annuity depends on whether she had a disabling medical
condition that was expected to last for at least 1 year from November 2019. See
Christopherson, 119 M.S.P.R. 635, ¶ 6.
In his initial decision, the administrative judge determined that the
appellant failed to prove elements (2) and (3), reasoning that her disabling
medical conditions were situational, that is, apparent only in her work
environment at the Brockton VAMC as a result of an alleged hostile work
environment, and were not expected to continue for at least 1 year. ID at 11-13.
On review, the appellant largely disagrees with the factual findings of the
administrative judge regarding her disabling medical conditions and inability to
perform as a nurse. PFR File, Tab 1 at 6-11. As further detailed below, we agree
with the administrative judge that the appellant’s medical conditions were
situational and supplement the initial decision to provide additional support for
this finding.
The administrative judge properly sustained OPM’s reconsideration decision.
An applicant may demonstrate eligibility for disability retirement under
FERS in one of two ways: (1) by showing that the medical condition caused a
deficiency in performance, attendance, or conduct; or (2) by showing that the
medical condition is incompatible with useful and efficient service or retention in
the position. Henderson v. Office of Personnel Management , 117 M.S.P.R. 313,
¶ 16 (2012); see 5 U.S.C. § 8451(a)(1)(B); 5 C.F.R. § 844.103(a)(2); see also
Jackson v. Office of Personnel Management , 118 M.S.P.R. 6, ¶ 7 (2012) (finding
that the standard is the same under both the Civil Service Retirement System and
FERS). Under the first method, an individual can establish entitlement by
showing that the medical condition affects her ability to perform specific work
requirements, prevents her from being regular in attendance, or causes her to act
inappropriately. Henderson, 117 M.S.P.R. 313, ¶ 16. Under the second method,
an individual can establish entitlement by showing that the medical condition is
inconsistent with working in general, in a particular line of work, or in a5
particular type of setting. Id. In determining an appellant’s entitlement to
disability retirement, the Board considers all pertinent evidence including
objective clinical findings, diagnoses and medical opinions, subjective evidence
of pain and disability, and evidence showing the effect of her condition on her
ability to perform the duties of her position. Id., ¶ 19. The ultimate question,
based on all relevant evidence, is whether the appellant’s medical impairments
preclude her from rendering useful and efficient service in her position. Id., ¶ 20.
The Board has found that job-related stress resulting in mood disorders
such as depression and anxiety can be disabling and warrant the granting of
disability retirement. Guthrie v. Office of Personnel Management , 105 M.S.P.R.
530, ¶ 6 (2007). Absence from work merits consideration in judging disability;
however, unless there is corroborating evidence establishing impaired
performance of duties, absence alone will not establish disability. Id. There is no
persuasive evidence here establishing that the appellant’s ability to perform her
duties was impaired. As the administrative judge properly observed, the
appellant’s supervisor indicated on her written statement in connection with the
appellant’s application for disability retirement that the appellant’s job
performance had been satisfactory. ID at 4.
An appellant must also show that she is unable to perform her job duties in
general and not only in the context of what she sees as a hostile environment.
Guthrie, 105 M.S.P.R. 530, ¶ 12; Tan-Gatue v. Office of Personnel Management ,
90 M.S.P.R. 116, ¶ 15 (2001), aff’d per curiam , 52 F. App’x 511 (Fed. Cir. 2002).
The Board has rejected disability claims when the appellant’s conditions were
largely situational, i.e., apparent only in her work environment or in the context
of what she perceived as a hostile work environment. Luzi v. Office of Personnel
Management, 109 M.S.P.R. 79, ¶ 9 (2008); Cosby v. Office of Personnel
Management, 106 M.S.P.R. 487, ¶¶ 7, 10 (2007).
In concluding that the appellant’s disabilities were situational, the
administrative judge explained that “[a]ccording to her medical providers, [her]6
mental health issues were triggered and exacerbated by the hostile work
environment she experienced at [Brockton VAMC].” ID at 11. The appellant
disputes this finding, arguing that her disability was not situational, as evidenced
by her testimony below that “under different, supportive management, she
continued to have panic attacks and other disability-related limitations.” PFR
File, Tab 1 at 8-11; IAF, Tab 17, Hearing Recording (HR) (testimony of the
appellant). We are not persuaded. As noted by the administrative judge, “but for
the workplace [] harassment, the appellant would have been able to do her job, as
indicated by [her primary care physician’s] assessment that ‘[w]hen she is
working in an environment without exposure to her prior supervisors she is able
to perform all functional duties of her position.’” ID at 11-12. We agree.
Numerous medical reports also linked the appellant’s conditions to her
specific work environment and acknowledged that her conditions improved when
not in the hostile work environment. IAF, Tab 9 at 25-27, 30, 45-46, 48-50, 60,
85-86, 89-93, 95-99, 101-02, 106, 113, 118, 134-35, 143-44, 146-48. In a letter
supporting a leave of absence dated August 10, 2018, a treating clinician
explained that the appellant’s “severe anxiety” was limited to her work
environment at the time and appears to indicate that she would be able to perform
her duties in a different environment, stating that “she is clearly competent in her
profession and has the ability to work in so many positions available at [the
Boston VAMC].” Id. at 48. The appellant also testified that her mental health
improved and she was able to perform the essential duties of her position when
temporarily detailed to a position in the Brockton VAMC’s telehealth unit. IAF,
Tab 17, HR (testimony of the appellant). Most notably, the appellant’s testimony
indicated that her medical conditions prevented her from performing all her duties
only when working under the hostile work environment. Id. Therefore, we agree
with the administrative judge’s finding that the record evidence may be sufficient
to establish that the appellant was unable to work under the circumstances of her7
particular work environment, but it does not establish that she could not have
performed the duties of her position in a different environment. ID at 11-12.
The appellant also contends that the facts that her mental health conditions
predated her employment and that “she still has panic attacks” when visiting the
Brockton VAMC for medical care are further evidence that her conditions were
not situational. PFR File, Tab 1 at 10-11. In support of her assertion, she cites
the Board’s nonprecedential decision in Wolfe v. Office of Personnel
Management, MSPB Docket No. AT-831E-09-0766-I-1, Final Order at 13-14
(Nov. 9, 2010).3 Id. However, the Board is not bound by nonprecedential
decisions, see 5 C.F.R. § 1201.117(c)(2), and the facts of the instant appeal are
distinguishable from the facts in Wolfe. As such, we agree with the
administrative judge that the evidence and testimony support a conclusion that the
appellant’s condition is situational because it is triggered by her perception of a
hostile work environment.4 ID at 11-13; see, e.g., Harris v. Office of Personnel
Management, 110 M.S.P.R. 249, ¶ 16 (2008) (finding that an appellant failed to
prove entitlement to disability retirement when, among other things, her
testimony suggested that she felt as if she was in a harassing work situation and
her condition was better when she was not at work); Guthrie, 105 M.S.P.R. 530,
¶ 12 (finding that an appellant failed to prove entitlement to disability retirement
3 In Wolfe, the Board determined that the appellant’s PTSD was not situational when
subsequent medical evidence demonstrated that her symptoms, including memory
difficulties, lack of interest in social activities, poor grooming, fear of leaving
her house, excessive crying, and inability to cope, were pervasive and affected her
day-to-day life and her therapist opined that she could not return to work in any
capacity with the agency. MSPB Docket No. AT-831E-09-0766-I-1, Final Order at 9,
13-14. As relevant here, the appellant’s treatment notes indicate that her conditions
improved when she was not working in the hostile work environment, she engaged in
enjoyable activities, was attentive to hygiene and grooming, appeared alert and
attentive, and presented good judgment. IAF, Tab 9 at 26, 75-148.
4 To the extent the appellant raises arguments regarding whether her disabling medical
condition was expected to continue for at least 1 year from November 2019, PFR File,
Tab 1 at 8-9; see Christopherson, 119 M.S.P.R. 635, ¶ 6, we find it unnecessary to
address those arguments given our findings.8
when, among other things, her psychologist opined that her stress, anxiety, and
depression were work-related and she should not return to her employing agency
but might be able to succeed elsewhere).
The appellant’s remaining arguments provide no basis to grant review. She
argues that the administrative judge’s failure to properly identify her job title
rendered him unable “ to make an appropriate evaluation of how her disability
affected her position last occupied and whether she would be disabled from that
position in the future.” PFR File, Tab 1 at 7-8. Although it appears that the
administrative judge incorrectly identified the appellant as a Licensed Practical
Nurse, IAF, Tab 9 at 58, 162, 170-77, 203, we find the error harmless in light of
our determination that the appellant’s condition is situational. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (recognizing that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
Accordingly, we conclude that the appellant has provided no basis for
disturbing the initial decision, which affirmed OPM’s reconsideration decision
denying her application for disability retirement.
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.9
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. The10
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 file11
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
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. 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.14 | Hautala_HeidiPH-844E-21-0059-I-1__Final_Order.pdf | 2024-04-12 | HEIDI HAUTALA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-844E-21-0059-I-1, April 12, 2024 | PH-844E-21-0059-I-1 | NP |
1,803 | https://www.mspb.gov/decisions/nonprecedential/Shaikh_AnwarDC-0752-18-0541-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANWAR SHAIKH,
Appellant,
v.
SMITHSONIAN INSTITUTION,
Agency.DOCKET NUMBER
DC-0752-18-0541-I-1
DATE: April 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anwar Shaikh , Washington, D.C., pro se.
Amy Koontz and Katherine Bartell , 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 his removal from the Federal service. 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).
On review, the appellant has filed a motion to vacate the initial decision
and for a rehearing. Petition for Review (PFR) File, Tab 2 at 3. He asserts that
he “suffered a medical issue in the courtroom prior to presenting [his] argument,”
which “prevented [him] from presenting [his] case.” Id. The appellant claims
that he alerted the administrative judge to his medical situation and that he was
unable to “present rebuttal” during the hearing. Id. Therefore, the appellant
argues that the “incomplete” and one-sided hearing did not provide him with due
process. Id. The appellant also argues that the administrative judge allowed an
unidentified “Agency representative” into the hearing room who spoke in private
with the administrative judge and that neither he nor the agency representative
were able to hear the conversations. Id. Finally, the appellant challenged the
lack of a “bailiff or other means of security” in the hearing room preventing the
witnesses from speaking to each other or the agency representative. Id.
In its substantive response opposing the petition for review, the agency
disputes the appellant’s “unsupported allegations” on review. PFR File, Tab 4
at 6. The agency representative states that she was present at the hearing and that
the appellant did not raise any medical issues with her or the administrative
judge. Id. In addition, the agency asserts that no agency representative spoke
privately with the administrative judge during the hearing. Id. Finally, the2
agency states that the appellant made no allegation during the hearing that any of
the witnesses engaged in improper conduct. Id.
The oral recording made by a court reporter is the official transcript of a
hearing. 5 C.F.R. § 1201.53(a). Having reviewed the oral recording of the
hearing in its entirety, we find that the agency correctly asserted that the record
does not reflect any medical issues raised by the appellant and that, prior to
dismissing the witnesses, the administrative judge appropriately instructed each
witness not to discuss his or her testimony with any other individual while the
proceedings were ongoing. Initial Appeal File (IAF), Tab 31, Hearing Compact
Disc (HCD); PFR File, Tab 4 at 6. During the course of the hearing, the appellant
provided testimony, examined his own witnesses, and cross-examined the
agency’s witnesses. HCD. To the extent that the appellant asserts that he raised
his alleged medical issue with the administrative judge off the record, his
conclusory statements on review provide no details regarding the nature of or
extent of any such discussion. PFR File, Tab 2 at 3. Moreover, the appellant has
failed to articulate any statutory, regulatory, or agency security or other
procedures with which the Board or the Smithsonian Institution failed to provide
him. See Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1378
(Fed. Cir. 1999) (observing that, in addition to the right to due process, public
employees are “entitled to whatever other procedural protections are afforded
them by statute, regulation, or agency procedure”). Therefore, we find that the
appellant has provided no basis for disturbing the initial decision. See 5 C.F.R.
§ 1201.114(b) (stating that a petition for review must include all of the filing
party’s legal and factual arguments objecting to the initial decision, and must be
supported by references to applicable laws or regulations and by specific
references to the record).
Regarding the appellant’s assertion that the administrative judge engaged in
private conservations with an unidentified “Agency representative,” it is unclear
whether he claims this individual was a representative of the Smithsonian3
Institution or the Board, given his statement that neither he nor the agency
representative could hear the conversations. PFR File, Tab 2 at 3. An ex parte
communication is an oral or written communication between a decision-making
official of the Board and an interested party to a proceeding when that
communication is made without providing the other parties to the appeal with a
chance to participate. 5 C.F.R. § 1201.101. Administrative judges are prohibited
from engaging in ex parte conversations regarding the merits of an appeal.
5 C.F.R. § 1201.102. To the extent that the appellant argues that the
administrative judge engaged in improper ex parte communications with a
representative for the Smithsonian Institution, we find that the record is devoid of
any evidence to support the appellant’s bare assertion. To the extent that the
appellant’s challenge concerns conversations between the administrative judge
and Board personnel, he has failed to articulate any prejudice or harm he suffered
by such communications in which neither party to the proceeding participated.
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).
The appellant has not challenged, and we see no reason to disturb, the
administrative judge’s findings that the agency proved the charges of failure to
follow Smithsonian policy and lack of candor by preponderant evidence,2 the
agency established a nexus between the appellant’s misconduct and the efficiency
of the service, the agency showed that the penalty of removal was reasonable, and
the appellant failed to establish a prima facie case that his removal action was
based on protected whistleblowing activity. PFR File, Tab 2 at 3; IAF, Tab 32,
Initial Decision at 3-11; 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
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). 4
made reasoned conclusions on issues of credibility); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357, 359 (1987); see also Haebe v.
Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002) (holding that the
Board may overturn credibility determinations only when it has “sufficiently
sound” reasons for doing so).
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.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 | Shaikh_AnwarDC-0752-18-0541-I-1_Final_Order.pdf | 2024-04-12 | ANWAR SHAIKH v. SMITHSONIAN INSTITUTION, MSPB Docket No. DC-0752-18-0541-I-1, April 12, 2024 | DC-0752-18-0541-I-1 | NP |
1,804 | https://www.mspb.gov/decisions/nonprecedential/Hickson_JoshAT-3443-19-0695-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSH HICKSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-3443-19-0695-I-1
DATE: April 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William Johnson , West Columbia, South Carolina, for the appellant.
Brandy A. Osimokun , Esquire, Charlotte, North Carolina, 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 a proposed removal for lack of jurisdiction without
holding the requested hearing. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant filed the instant appeal upon receipt of the agency’s
proposal to remove him. Hickson v. U.S. Postal Service , MSPB Docket No.
AT-3443-19-0695-I-1, Initial Appeal File (IAF), Tab 1 at 4, 6.
The administrative judge dismissed the appeal for lack of jurisdiction without
holding the requested hearing because the Board lacks jurisdiction over proposed
removals and the appellant was on administrative leave for some time.1
IAF, Tab 8, Initial Decision (ID) at 2-3. On petition for review, the appellant
does not challenge the administrative judge’s finding but instead offers a defense
to the allegations made against him in the proposal notice and attaches a record
from the Department of Veterans Affairs listing his service-connected disabilities.
Petition for Review (PFR) File, Tab 2. The agency has filed a response opposing
the petition. PFR File, Tab 4.
1 Although the proposal notice indicated that the appellant would be in a pay status for
30 days, the appellant asserted below that he had not been paid since August 30, 2019.
IAF, Tab 7 at 4. The record reflects that the appellant filed a separate appeal regarding
a constructive suspension, which the administrative judge dismissed as moot because,
during the pendency of that appeal, the agency provided evidence that it had paid the
appellant until the date of his removal, and he did not dispute that he had received that
payment. Hickson v. U.S. Postal Service , MSPB Docket No. AT-3443-19-0788-I-1,
Initial Decision (Nov. 18, 2019). No petition for review of that initial decision has been
filed. 2
The Board will normally only consider evidence submitted for the first time
on review upon a showing that it was previously unavailable despite the
petitioner’s due diligence. See Banks v. Department of the Air Force , 4 M.S.P.R.
268, 271 (1980); 5 C.F.R. § 1201.115(d). Here, the appellant has not explained
why he could not have previously submitted the document attached on review.
In any event, the document does not provide a basis for granting the petition for
review because the appellant has not shown 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).
Indeed, 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). Under 5 U.S.C. §§ 7512
and 7513(d), the Board has jurisdiction over, among other actions, “a removal.”
Lethridge v. U.S. Postal Service , 99 M.S.P.R. 675, ¶ 8 (2005).
However, “[b]ecause mere proposals to remove are not listed in § 7512, they are
not appealable adverse actions in themselves and the Board has no jurisdiction
over them.” Cruz v. Department of the Navy , 934 F.2d 1240, 1243 (Fed. Cir.
1991). For the reasons stated in the initial decision, we agree that the Board lacks
jurisdiction over this appeal.2
2 After the issuance of the initial decision in the instant appeal, the agency issued the
appellant a decision notice effecting his removal. The appellant thereafter separately
appealed that action, and an initial decision was issued. Hickson v. U.S. Postal Service ,
MSPB Docket No. AT-0752-20-0066-I-1, Initial Decision (Dec. 19, 2019). Thereafter,
the appellant filed a petition for review; however, the Clerk of the Board later granted
the appellant’s request to withdraw his petition for review, and that matter is now
closed.3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Hickson_JoshAT-3443-19-0695-I-1__Final_Order.pdf | 2024-04-12 | JOSH HICKSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-3443-19-0695-I-1, April 12, 2024 | AT-3443-19-0695-I-1 | NP |
1,805 | https://www.mspb.gov/decisions/nonprecedential/Johnson_Kimberly_L_CH-0752-17-0404-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIMBERLY L. JOHNSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-17-0404-I-3
DATE: April 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant.
Deborah Lisy , 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
sustained her removal. On petition for review, the appellant argues that the
deciding official improperly considered ex parte evidence and that the penalty is
not reasonable. 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 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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Johnson_Kimberly_L_CH-0752-17-0404-I-3__Final_Order.pdf | 2024-04-12 | KIMBERLY L. JOHNSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-17-0404-I-3, April 12, 2024 | CH-0752-17-0404-I-3 | NP |
1,806 | https://www.mspb.gov/decisions/nonprecedential/Howard_Eric_T_CH-0752-18-0486-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC T. HOWARD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-18-0486-I-1
DATE: April 11, 2024
THIS ORDER IS NONPRECEDENTIAL1
Eric T. Howard , Douglasville, Georgia, pro se.
Jennifer C. Pace , Esquire, Denver, 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 involuntary resignation appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the finding of the initial decision that the Board lacks jurisdiction over
this appeal, and REMAND the case to the Central 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 submitted a Form 2574, Resignation/Transfer from the Postal
Service,2 indicating his intent to resign, effective June 1, 2018, from his position
as a Mail Handler at the Kansas City National Distribution Center.3
Initial Appeal File (IAF), Tab 10 at 12-13. He asserts that, on May 30, 2018, he
submitted a written request to withdraw his resignation, per the instructions on
the Form 2574. IAF, Tab 1 at 9. The appellant’s PS Form 50 shows that the
agency listed his last day in pay status as June 6, 2018 and processed his
resignation on June 26, 2018. IAF, Tab 10 at 12.
The appellant filed an appeal with the Board alleging that the agency failed
to reinstate him after he had withdrawn his resignation. IAF, Tab 1. He
requested a hearing. IAF, Tab 8. The administrative judge informed the
appellant that there was a question regarding whether his appeal was within the
Board’s jurisdiction, apprised him of his burden of proving jurisdiction over an
involuntary resignation appeal, and ordered him to file evidence and argument
showing that his appeal should not be dismissed for lack of jurisdiction. IAF,
Tab 4 at 2-3. The administrative judge further informed the appellant that his
appeal appeared to have been filed 11 days late and ordered him to file evidence
2 As the administrative judge noted, the actual date the form was submitted is a matter
of dispute. Initial Appeal File (IAF), Tab 12, Initial Decision at 2 n.2. The agency
provided a Form 2574 that bears a date of June 1, 2018. IAF, Tab 10 at 13. The
appellant asserts, however, that he had submitted his voluntary resignation as early as
May 16, 2018, as evidenced by the absence of a date on his copy of the form. IAF,
Tab 1 at 9, Tab 11 at 5-6. The discrepancy in the dates is relevant only insofar as it
may relate to the timing of the resignation rescission request that the appellant
purportedly submitted.
3 In order to have appeal rights before the Board, a Postal Service employee: (1) must
be an excepted-service, preference-eligible employee, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
nonconfidential clerical capacity; and (2) must have completed 1 year of current
continuous service in the same or similar positions. 5 U.S.C. § 7511(a)(1)(B)(ii);
39 U.S.C. § 1005(a)(4)(A)(ii); see Trabue v. U.S. Postal Service , 102 M.S.P.R. 14, ¶ 5
(2006). The record reflects that the appellant has veterans’ preference and has worked
for the agency in the same position since October 2012. IAF, Tab 10 at 12.2
and argument showing that his appeal was timely filed or that good cause existed
for the delay. IAF, Tab 5 at 2-3.
The appellant responded to the administrative judge’s orders, describing
the circumstances of his rescission of his resignation. IAF, Tabs 6-7. He
suggested that the agency’s failure to acknowledge receipt of his rescission
request was merely another incident in a pattern of inaction by the agency, as
evidenced by what he perceives to be the mishandling of his transfer requests, and
noted that he was not “officially notified” of his separation from Federal service
until July 2, 2018. IAF, Tab 6 at 4, Tab 7 at 4-7, Tab 11 at 4-5. The agency
moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 10.
Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant did not
make a nonfrivolous allegation that his resignation should not have been effected
because he withdrew it prior to its effective date. IAF, Tab 12, Initial Decision
(ID). The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
An employee-initiated action, such as a retirement or resignation, is
presumed to be voluntary, and thus outside the Board’s jurisdiction. Hosozawa v.
Department of Veterans Affairs , 113 M.S.P.R. 110, ¶ 5 (2010). An involuntary
resignation, however, is equivalent to a forced removal and therefore is within the
Board’s jurisdiction. Id. The appellant has the burden to prove the Board’s
jurisdiction by preponderant evidence.4 Id.; see 5 C.F.R. § 1201.56(b)(2)(i)(A).
An employee has a right to withdraw a resignation at any time before it is
effective unless the agency has a valid reason for refusing to permit the
withdrawal. Levy v. Department of Homeland Security , 109 M.S.P.R. 444, ¶ 18
4 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would need to find that a contested fact is more
likely true than not. 5 C.F.R. § 1201.4(q). 3
(2008); see 5 C.F.R. § 715.202(b). An employee’s resignation may be deemed
involuntary, and therefore within the Board’s jurisdiction, if the agency
improperly denied his request to withdraw his resignation before its effective
date. Levy, 109 M.S.P.R. 444, ¶ 18. When an employee attempts to withdraw a
resignation notice before its effective date and the agency refuses to accept the
withdrawal, the burden shifts to the agency to establish, by preponderant
evidence, that it had a valid reason for its refusal. Thomas v. Department of
Housing & Urban Development , 63 M.S.P.R. 649, 656-57 (1994).
On review, the appellant argues that he is entitled to a hearing because he
attempted to withdraw his resignation via fax prior to its effective date but the
agency effected his separation from Federal service regardless. PFR File, Tab 1
at 3-4; see IAF, Tab 1 at 3, 9-10, Tab 11 at 5. He argues that the administrative
judge incorrectly determined that the evidence he provided, namely his June 2018
earnings statement showing that he requested leave without pay, does not support
the presumption that the agency accepted the withdrawal of his resignation.
PFR File, Tab 1 at 4; ID at 5.
The appellant is entitled to a hearing on the issue of Board jurisdiction over
an appeal of an alleged involuntary resignation only if he makes a
nonfrivolous allegation casting doubt on the presumption of voluntariness. See
Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643 (Fed. Cir. 1985).
A nonfrivolous allegation of Board jurisdiction is an allegation of fact which, if
proven, could establish a prima facie case that the Board has jurisdiction over the
matter in issue. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994); see
5 C.F.R. § 1201.4(s). In determining whether the appellant has made a
nonfrivolous allegation of jurisdiction entitling him to a hearing, the
administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve4
conflicting assertions of the parties and the agency’s evidence may not be
dispositive. Ferdon, 60 M.S.P.R. at 329.
The administrative judge found that the appellant’s allegation was
insufficient to meet the nonfrivolous standard because he did not provide any
details regarding his withdrawal letter, such as a receipt confirmation or a
description of the document itself. ID at 5. As an e-filer, the appellant provided
the Board with his declaration “under penalty of perjury” that the facts stated in
his pleadings were true and correct.5 IAF, Tabs 6, 7, 11. A statement made under
penalty of perjury that is not rebutted is competent evidence of the matter
asserted. Aldridge v. Department of Agriculture , 110 M.S.P.R. 21, ¶ 9 (2008);
see Woodall v. Federal Energy Regulatory Commission , 30 M.S.P.R. 271, 273
(1986) (stating a declaration subscribed as true under penalty of perjury, if
uncontested, proves the facts that it asserts). The agency has submitted an
unsworn statement from its agency representative that there is no indication that
the appellant withdrew his resignation. IAF, Tab 10 at 4-5. However, the
assertion of an agency representative in a pleading generally does not constitute
evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 16 n.5
(2011). A review of the record shows that the agency has not submitted any
evidence that rebuts the appellant’s narrative of events, such as a sworn affidavit
from a designated representative of its Human Resources Shared Service Center
affirming that it received no written request to withdraw the appellant’s
resignation prior to the effective date by any means delineated in the Form 2574
instructions. IAF, Tab 10 at 13.
5 The appellant asserted below that he did not even know that he was separated from the
agency until he showed up at work on June 25, 2018, after a period of leave without pay
(LWOP), and found his timecard missing. IAF, Tab 6 at 4, Tab 7 at 7. He believes that
the agency had received his resignation rescission request, even if it was not
acknowledged, given his LWOP status for the month of June 2018 on his earnings
statement and his “drafted” status to work on July 4, 2018 on a job assignment sheet.
IAF, Tab 11 at 5, 8-10. 5
Because the totality of the circumstances asserted by the appellant
establishes a nonfrivolous allegation of fact that, if proven, could establish that
his resignation was involuntary, the appellant is entitled to a jurisdictional
hearing. See Levy, 109 M.S.P.R. 444, ¶¶ 18-20 (remanding the appeal for a
jurisdictional hearing when the appellant nonfrivolously alleged that his
resignation was involuntary). On remand, the administrative judge should decide
whether the appellant communicated to the agency his desire to withdraw his
resignation prior to its effective date, and if so, whether the agency had an
acceptable reason for refusing to permit the withdrawal.
As the administrative judge noted, there is a question as to the timeliness of
the appeal. ID at 2 n.1. When issues of jurisdiction and timeliness are
inextricably intertwined, that is, if resolution of the timeliness issue depends on
whether the appellant was subjected to an appealable action, a finding on
jurisdiction must be made before an appeal may be dismissed as untimely.
See Harper v. U.S. Postal Service , 87 M.S.P.R. 632, ¶ 11 (2001). To the extent
the jurisdictional and timeliness issues are inextricably intertwined, as is
normally the case in an appeal of a constructive adverse action, the administrative
judge shall adjudicate the jurisdictional issue before proceeding to the timeliness
issue. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 5, aff’d,
469 F. App’x 852 (Fed. Cir. 2011). 6
ORDER
For the reasons discussed above, we REMAND this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Howard_Eric_T_CH-0752-18-0486-I-1__Remand_Order.pdf | 2024-04-11 | ERIC T. HOWARD v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-18-0486-I-1, April 11, 2024 | CH-0752-18-0486-I-1 | NP |
1,807 | https://www.mspb.gov/decisions/nonprecedential/Cleary_John_C_NY-0842-21-0134-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN CHARLES CLEARY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0842-21-0134-I-1
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Charles Cleary , Ridgewood, New Jersey, 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 the appellant’s application for a Federal Employees’ Retirement
System (FERS) deferred retirement annuity. 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).
2
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to address the appellant’s argument that OPM should have accepted
his application for a service credit payment to allow him to secure entitlement to
an annuity under FERS and his contention that his unused sick leave at separation
should have been applied toward his eligibility for an annuity, we AFFIRM the
initial decision.
BACKGROUND
The material facts in this case are not in dispute. Initial Appeal File (IAF),
Tab 9 at 4; Petition for Review (PFR) File, Tab 1 at 4-6. The appellant worked as
an Assistant United States Attorney with the Department of Justice under a
temporary appointment from September 30 to December 14, 1987. IAF, Tab 4
at 17, 27, 33-34. The appellant was not subject to—covered under—any
retirement system during his temporary appointment. Id. Effective December 15,
1987, the appellant’s position became permanent, and he became subject to
FERS. Id. The appellant resigned effective October 20, 1992, to return to private
practice, with 4 years, 10 months, and 6 days of creditable FERS service. Id.
at 21, 24, 34. While he was employed, the appellant did not seek to make a
3
deposit to obtain FERS credit for his prior temporary Federal service that had not
been subject to retirement deductions. Id. at 7, 15.
Upon reaching 62 years of age, the appellant filed an application for a
FERS deferred annuity. Id. at 27-29. OPM issued an initial decision denying the
appellant’s application because there were no FERS deductions made from his
temporary service from September 30 to December 14, 1987, and, thus, he only
had 4 years, 10 months, and 6 days of the statutorily required 5 years of FERS
creditable service to be entitled to a FERS retirement annuity. Id. at 24-25. The
appellant requested reconsideration, asserting that he planned his resignation
from Federal service with the belief that he had the requisite 5 years of service at
the time of his resignation and, thus, should qualify for a waiver or exemption
based on his reliance on this belief. Id. at 14-15. He also questioned whether his
516 hours of unused sick leave could be counted as creditable service. Id. at 14,
16. He requested, in the alternative, permission to make the necessary deposit to
obtain service credit for his temporary service, and he completed OPM Standard
Form 3108, Application to Make Service Credit Payment. Id. at 15, 17. OPM
issued a reconsideration decision explaining that it had no administrative
discretion in the matter, and the appellant filed a timely initial appeal to the
Board. IAF, Tab 1 at 5-6, 8-10.
The appellant withdrew his request for a hearing because there was no
factual dispute. IAF, Tab 9 at 4. The administrative judge issued an initial
decision determining that the appellant’s temporary service was not deemed
creditable for purposes of entitlement to a deferred annuity and affirming OPM’s
decision. IAF, Tab 14, Initial Decision (ID) at 3-4.
The appellant has filed a timely petition for review, and OPM has filed a
timely response in opposition, dated June 21, 2022.2 PFR File, Tabs 1, 4.
2 On September 9, 2022, after the record on review closed, the appellant filed a motion
to submit an additional pleading or, in the alternative, for an extension of time to file a
reply to OPM’s response to his petition for review. PFR File, Tabs 4, 6; see 5 C.F.R.
§ 1201.114(e). The appellant argues that his motion should be granted because “the
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the appellant is not entitled to a
deferred retirement annuity.
An employee must complete at least 5 years of civilian service creditable
under 5 U.S.C. § 8411 to be eligible for an annuity under FERS, including a
deferred annuity. 5 U.S.C. §§ 8410, 8413(a); 5 C.F.R. § 842.212(a). Creditable
service under 5 U.S.C. § 8411 is “service with respect to which deductions and
withholdings under [FERS] have been made.” 5 U.S.C. § 8411(b)(2); 5 C.F.R.
§ 842.103(c). OPM records reflect that the appellant’s temporary appointment
from September 30 to December 14, 1987, was excluded from FERS. IAF, Tab 4
at 33-34; see generally 5 U.S.C. § 8402(c)(1); 5 C.F.R. § 842.105(a)(1)
(permitting OPM to exclude temporary appointments from FERS
deductions/coverage). The administrative judge did not err in finding that the
appellant’s temporary service is not deemed creditable for purposes of entitlement
U.S. Supreme Court and other [F]ederal courts, in the period June 30, 2022 to date,
have strengthened and reinforced the fundamental administrative law principles invoked
in [his] Petition.” PFR File, Tab 6 at 4. Once the record closes on review, no
additional evidence or argument will be accepted unless it is new and material and was
not readily available before the record closed. Maloney v. Executive Office of the
President, 2022 MSPB 26, ¶ 4 n.4; 5 C.F.R. § 1201.114(k). Contrary to the appellant’s
vague assertion of a change in law sometime between June 30, 2022, and the time of his
motion on September 9, 2022, we can locate no case law that would further his legal
argument in this case. Therefore, we deny the appellant’s motion to submit an
additional pleading. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980 )
(finding 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); see also 5 C.F.R. § 1201.114(a)(5).
5
to a deferred annuity, and the appellant does not contest this issue .3 ID at 3; PFR
File, Tab 1.
The appellant is not permitted to make a service credit payment to secure
entitlement to an annuity under FERS.
The appellant argues that he could obtain 5 years of creditable service and
secure entitlement to an annuity under FERS by making a service credit payment.
IAF, Tab 11 at 5-7; PFR File, Tab 1 at 5. OPM’s regulation at 5 C.F.R.
§ 842.305(a) allows for an employee subject to FERS or a former employee who
is entitled to an annuity to make a deposit for civilian service that was performed
before 1989 and would have been creditable under the Civil Service Retirement
System if the employee had been subject to that chapter. See 5 C.F.R.
§ 842.305(a); 5 C.F.R. § 842.304(a)(2); see also 5 U.S.C. § 8411(b)(3). OPM
rejected the appellant’s application to make a service credit deposit for the period
of his temporary appointment because he was not a current employee or former
3 As to the appellant’s argument that his unused sick leave should have been credited
toward eligibility for a deferred annuity, in its final decision OPM stated that “[a]ccrued
and unused sick leave to an employee’s credit at date of separation is not creditable for
eligibility or computation purposes in a deferred retirement.” IAF, Tab 4 at 11. The
appellant asserted below that OPM had failed to provide any legal authority for this
conclusion, IAF, Tab 1 at 5, but the initial decision did not address this issue, ID.
Although the appellant does not raise this argument in his petition for review, we note
that OPM was correct that the appellant’s unused sick leave is not creditable toward
eligibility for a deferred annuity under FERS. At the time of the appellant’s separation,
there was no provision in FERS that would allow the use of accrued sick leave to meet
eligibility requirements for a deferred annuity. See Federal Employees’ Retirement
System Act of 1986, Pub. L. No. 99-335, 100 Stat. 514, as amended by Pub. L. No.
99-556, 100 Stat. 3131 (1986); see also Asprin v. Office of Personnel Management ,
53 M.S.P.R. 320, 323 (1992) (holding that the law in effect at the time the employee
separated from Federal service must be applied in determining eligibility for a deferred
annuity). The National Defense Authorization Act for Fiscal Year 2010, Pub. L. No.
111-84, 123 Stat. 2615, enacted on October 28, 2009, provided FERS annuitants with
service credit for a percentage of their unused sick leave from the date of enactment of
the law. However, the provision applies only to employees who retire on an immediate
annuity, and it is explicitly inapplicable “in determining . . . annuity eligibility.”
5 U.S.C. § 8415(m)(2)(A). Thus, even if we applied the law in effect at the time the
appellant filed his application for a deferred annuity, his unused sick leave at separation
would not be creditable toward his eligibility for a deferred annuity.
6
employee entitled to an annuity at the time of his application to complete the
deposit. IAF, Tab 4 at 7-8, 17-20; see 5 C.F.R. § 842.305(a). The appellant has
challenged OPM’s interpretation of 5 C.F.R. § 842.305(a) and argues that there is
no mandate in OPM’s regulations that a deposit be made while an individual is
still employed by the Federal Government. IAF, Tab 11 at 5-7; PFR File, Tab 1
at 5.
The U.S. Court of Appeals for the Federal Circuit has addressed this issue
in its nonprecedential decision in Holland v. Office of Personnel Management ,
113 F. App’x 384 (Fed. Cir. 2004).4 First, the court explained that an agency’s
interpretation of its own regulations receives substantial deference and will be
applied by the court unless plainly erroneous or inconsistent with the regulation.
See Holland, 113 F. App’x at 386 ( citing Auer v. Robbins , 519 U.S. 452, 461-62
(1997), superseded in part on other grounds by regulation as stated in Crowe v.
Examworks, Inc. , 136 F. Supp. 3d 16, 28 n.8 (D. Mass. 2015)). The court looked
at OPM’s publications at the time and concluded that OPM’s interpretation,
which is consistent with its position in the present case, was based on a
reasonable interpretation of the regulation at 5 C.F.R. § 842.305(a). Id.
at 386-87; IAF, Tab 4 at 7-8, Tab 11 at 5-6; PFR File, Tab 4 at 4-5.
We, too, have reviewed OPM guidance to determine its current
interpretation of its regulation. OPM advises individuals who wish to make
service credit payments that they “must begin the application process as an
employee.” Retirement Services, FERS Information , Creditable Service ,
https://www.opm.gov/retirement-center/fers-information/creditable-service/ (last
visited Apr. 10, 2024). Furthermore, OPM’s sheet titled “Information About
Service Credit Payments” states the following:
4 The Board may rely on a nonprecedential decision of the Federal Circuit when, as
here, it finds its reasoning persuasive. Encarnado v. Office of Personnel Management ,
116 M.S.P.R. 301, ¶ 12 n.6 (2011).
7
Payment for civilian service can be made by . . . You, after you leave
the Federal government, provided you are eligible for a deferred
annuity because you have at least five years of paid civilian service
when you leave. If you are not eligible for a deferred annuity, but
you have at least 5 years of combined paid and unpaid civilian
service, you may pay a deposit for the unpaid service provided you
apply before leaving FERS covered service .
IAF, Tab 4 at 20 (emphasis added).
Thus, OPM’s public interpretation of its regulation is entirely consistent
with its position in this case; the appellant may not make a payment for civilian
service because he did not have 5 years of paid civilian service at the time of his
separation from Federal service. Id. at 5-6, 20. We agree with the Federal
Circuit in Holland that this interpretation is consistent with the plain language of
the regulation allowing a payment by a “former employee or Member5 who is
entitled to an annuity.” 5 C.F.R. § 842.305(a). Accordingly, the appellant is not
entitled to an annuity because he does not have 5 years of creditable service, i.e.,
“service with respect to which deductions and withholdings under [FERS] have
been made.” 5 U.S.C. §§ 8410, 8411(b)(2), 8413(a); 5 C.F.R. §§ 842.103(c),
842.212(a).
Therefore, the initial decision, as modified by this Final Order, is affirmed.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
5 Member means Member of Congress. See 5 U.S.C. § 2106; 5 C.F.R. § 842.102.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
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
9
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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,
10
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
11
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.
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. | Cleary_John_C_NY-0842-21-0134-I-1__Final_Order.pdf | 2024-04-11 | JOHN CHARLES CLEARY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0842-21-0134-I-1, April 11, 2024 | NY-0842-21-0134-I-1 | NP |
1,808 | https://www.mspb.gov/decisions/nonprecedential/Bishop_Joylyn_A_DC-0752-18-0665-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOYLYN A. BISHOP,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.DOCKET NUMBER
DC-0752-18-0665-I-1
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joylyn A. Bishop , North Bethesda, Maryland, pro se.
Scott Gengras , 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
dismissed her termination appeal for lack of jurisdiction, finding her collaterally
estopped from relitigating the jurisdictional issue. The agency has responded,
arguing in part that the petition for review is untimely. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
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).
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). Because we are affirming the administrative judge’s finding that
the Board lacks jurisdiction over the appeal, we decline to address the timeliness
issue.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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 | Bishop_Joylyn_A_DC-0752-18-0665-I-1__Final_Order.pdf | 2024-04-11 | JOYLYN A. BISHOP v. GENERAL SERVICES ADMINISTRATION, MSPB Docket No. DC-0752-18-0665-I-1, April 11, 2024 | DC-0752-18-0665-I-1 | NP |
1,809 | https://www.mspb.gov/decisions/nonprecedential/Atandeyi_Aderonke_O_PH-315H-19-0384-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADERONKE O. ATANDEYI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-315H-19-0384-I-1
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aderonke O. Atandeyi , Randallstown, Maryland, pro se.
Shelly S. Glenn , 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 the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues that she did not receive certain
documents during the processing of her appeal and that she was not afforded the
due process rights to which she was entitled in connection with the agency’s
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).
action. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,2
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
2 Lacking tenure, the appellant was not entitled to the due process rights she asserts.
See Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985).
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
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 | Atandeyi_Aderonke_O_PH-315H-19-0384-I-1__Final_Order.pdf | 2024-04-11 | ADERONKE O. ATANDEYI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-315H-19-0384-I-1, April 11, 2024 | PH-315H-19-0384-I-1 | NP |
1,810 | https://www.mspb.gov/decisions/nonprecedential/McGregor_DarrinNY-0752-19-0091-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARRIN MCGREGOR,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0752-19-0091-I-1
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tammy Holbrook , Bath, New York, for the appellant.
Georgette Gonzales-Snyder , Esquire, Syracuse, New York, 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 this appeal of his termination from an
excepted-service position. On petition for review, the appellant argues that the
agency violated procedures in connection with a negative suitability
determination and that he should be able to appeal his termination pursuant 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).
5 C.F.R. §§ 315.805-.806. 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. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | McGregor_DarrinNY-0752-19-0091-I-1__Final_Order.pdf | 2024-04-11 | DARRIN MCGREGOR v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0752-19-0091-I-1, April 11, 2024 | NY-0752-19-0091-I-1 | NP |
1,811 | https://www.mspb.gov/decisions/nonprecedential/Davis_Stacie_A_DC-0752-20-0348-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACIE ANNE DAVIS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0752-20-0348-I-1
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stacie Anne Davis , Virginia Beach, Virginia, pro se.
Nanita Cornish , Esquire, Hampton, 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 her 38 U.S.C. § 714 removal 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
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 appellant’s petition for review;
however, for the reasons discussed herein, we FORWARD the appellant’s petition
for review to the regional office for docketing as a new petition for enforcement.
BACKGROUND
On June 20, 2019, the agency proposed to remove the appellant, a GS-6
Practical Nurse, under the authority of 38 U.S.C. § 714 based on the following
charges: (1) absence without leave (AWOL); (2) failure to following proper leave
requesting procedures; and (3) failure to follow supervisory instructions. Initial
Appeal File (IAF), Tab 5 at 11, 20-22. Shortly thereafter, on July 11, 2019, the
appellant signed a last chance settlement agreement (LCA) with the agency. Id.
at 17-19. The LCA provided that, if the appellant committed any misconduct
within 2 years of the date of the LCA, such misconduct would “trigger the
removal presently held in abeyance being effectuated.” Id. at 17. The LCA also
provided that, in the event of such a breach, the appellant waived any right to file
an appeal, complaint, or grievance regarding her removal. Id. at 17-18.
Approximately 6 months later, on January 27, 2020, the agency notified the
appellant that she had violated the LCA insofar as she had accumulated 64 hours
of AWOL between September 23, 2019, and October 3, 2019. Id. at 14. On
January 30, 2020, the agency issued a decision letter notifying the appellant that
she would be removed from her position effective February 7, 2020. Id. at 13.
The agency thereafter removed her as indicated. Id. at 11-12. 2
On February 3, 2020, just prior to the effective date of her removal, the
appellant appealed the agency’s action to the Board.2 IAF, Tab 1. On appeal, the
appellant averred that she had signed the LCA only because her union
representative “said [she] should.” Id. at 5. She also argued that she had not
violated the LCA and that the agency had retaliated against her “for being sick.”
Id. The appellant requested a hearing on the matter. Id. at 2.
Thereafter, on August 14, 2020, the parties entered into a settlement
agreement and submitted a copy of the same into the record. IAF, Tab 15 at 4-7.
Pursuant to the terms thereof, the agency agreed to replace the January 30, 2020
decision letter with a letter indicating that the appellant had been removed
because she was medically unable to perform the essential functions of her
position. Id. at 5. It also agreed to rescind the February 7, 2020 Standard Form
50 (SF-50) indicating that the appellant had been removed for cause and replace it
with an SF-50 indicating that the appellant had been removed based on a medical
inability to perform. Id. The agreement provided that the agency would complete
these tasks within 30 days. Id. The administrative judge issued an initial
decision on August 14, 2020, dismissing the matter with prejudice as settled and
entering the agreement into the record for enforcement purposes. IAF, Tab 16,
Initial Decision at 1-2.
Approximately 6 months later, on February 19, 2021, the appellant filed a
petition for enforcement with the Board, alleging that the agency had violated the
terms of the settlement agreement. Davis v. Department of Veterans Affairs ,
MSPB Docket No. DC-0752-20-0348-C-1, Compliance File (CF), Tab 13. In her
petition for enforcement, the appellant averred that the agency had failed to
provide her with either an updated decision letter or an updated SF-50. Id. at 4.
The appellant explained that she could not complete her “medical retirement
2 Although the appellant’s appeal was premature, it became ripe for the Board’s
adjudication shortly thereafter, and it was therefore appropriate for the administrative
judge to process the appeal. See Barrios v. Department of the Interior , 100 M.S.P.R.
300, ¶ 6 (2005).3
package” without these forms. Id. The agency filed a response wherein it
indicated that, due to internal “confusion,” an updated decision letter and SF -50
had not been mailed to the appellant until February 24, 2021, and March 4, 2021,
respectively. CF, Tab 3 at 5.
The appellant thereafter indicated that she wished to voluntarily withdraw
her petition for enforcement. CF, Tab 10, Audio Recording (AR) at 00:02:26 to
00:02:33. The appellant’s withdrawal election is memorialized in the record via a
March 10, 2021 audio recording of a telephone conversation between the
appellant and the administrative judge. AR. In this recording, the administrative
judge summarized the appellant’s apparent position, i.e., that she would only
consider the agency’s apparent breach of the settlement agreement to be material
if the Office of Personnel Management (OPM) were to deny her pending
application for disability retirement and its denial was causally related to the
agency’s breach. AR at 00:01:30 to 00:01:45. The appellant confirmed that the
administrative judge had correctly summarized her position. AR at 00:02:12 to
00:02:20. During this recorded conversation, the administrative judge informed
the appellant that she could withdraw her petition and, if OPM subsequently
denied her application for disability retirement, then she could subsequently refile
the same.3 AR at 00:01:45 to 00:02:08.
On March 11, 2021, the administrative judge issued an initial decision
dismissing the appellant’s petition for enforcement as withdrawn. CF, Tab 11,
Compliance Initial Decision (CID) at 1, 3. Although the administrative judge
dismissed the matter “with prejudice,” CID at 1, 3, he also indicated that, “in the
event OPM denies [the appellant’s] application for disability retirement and she
believes that any such decision is related to the agency’s alleged failure to timely
3 It is unclear from the record why the agency was not a part of this conversation;
however, the administrative judge apparently “spoke to the agency’s representative of
record” 1 day prior, on March 9, 2021, and the representative did not object to the
course of action discussed by the appellant and the administrative judge. CF, Tab 11,
Compliance Initial Decision at 3 n.3. 4
comply with the terms of the agreement, she may file a [petition for enforcement]
at that time based on this claim,” CID at 2-3.
Approximately 2 months later, on May 12, 2021, the appellant submitted a
filing to the Board that was docketed as a petition for review of the August 14,
2020 initial decision. Petition for Review (PFR), Tab 1.4 In this filing, the
appellant argues that the agency’s failure to comply with the parties’ settlement
agreement affected her disability retirement application, and she explains that, as
a result, she wants to “vacate the initial settlement agreement and seek legal
counsel.” Id. at 3. With her filing, the appellant provides, among other things, a
May 4, 2021 letter indicating that OPM denied as untimely filed her March 5,
2021 application for disability retirement. Id. at 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s May 12, 2021 filing ostensibly challenges the August 14,
2020 initial decision dismissing her removal appeal as settled. A party may file a
petition for review challenging the validity of a settlement agreement if the party
believes that the agreement is unlawful, involuntary, or the result of fraud or
mutual mistake. Barker v. Department of Agriculture , 100 M.S.P.R. 695, ¶ 4
(2006). Here, however, because the appellant neither challenges the parties’
settlement agreement on any of these bases nor alleges that the administrative
judge erred in dismissing her removal appeal as settled, she has not provided a
basis for granting her petition for review.5
However, although the appellant’s May 12, 2021 filing was docketed as a
petition for review of the August 14, 2020 initial decision, it is clear from both
the procedural history of this matter and the filing itself that the appellant, who is
4 The agency has filed a response wherein it argues that the appellant fails to show good
cause for her untimely filed petition for review. PFR File, Tab 3 at 4-5. The agency
also avers that “a petition for review is not the appropriate action in this case.” Id. at 6.
The appellant has filed a reply thereto. PFR File, Tab 5.
5 Because we so find, we need not address the timeliness of the appellant’s petition for
review.5
proceeding pro se, intended to file a second petition for enforcement; accordingly,
we forward this matter to the regional office for further adjudication.
See Melendez v. Department of Veterans Affairs , 106 M.S.P.R. 128, ¶¶ 6-7, 9
(2007) (remanding for redocketing and further adjudication a removal appeal that
the pro se appellant incorrectly categorized as a motion for compensatory
damages after considering the procedural posture of the appeal and the content of
the appellant’s filing); see also Barker, 100 M.S.P.R. 695, ¶ 5 (reasoning that the
appellant’s filing, which alleged that the agency had breached the parties’
settlement agreement but neither argued that the administrative judge erred in
dismissing his appeal as settled nor challenged the validity of the settlement
agreement, was “in substance a petition for enforcement”).
In forwarding this matter for docketing as a second petition for
enforcement, we acknowledge that an appellant’s decision to withdraw an appeal
is generally considered final, and relitigation of such appeals is therefore
typically barred by res judicata.6 See Zendejas v. Department of Homeland
Security, 107 M.S.P.R. 348, ¶ 6 (2007) (stating that an appellant’s decision to
withdraw an appeal ordinarily will be accorded finality); see also Brown v.
Department of the Navy , 102 M.S.P.R. 377, ¶ 10 (reasoning that the dismissal of
an appeal following the appellant’s withdrawal of the same was with prejudice
and, therefore, that any relitigation of the issues raised in the matter was barred
by res judicata), review dismissed , 199 F. App’x 949 (Fed. Cir. 2006). However,
the Board has found that a withdrawal based on misinformation or a
misunderstanding constitutes an exception to the general finality rule, and that,
6 Res judicata, or claim preclusion, prevents parties from litigating claims that were
brought or could have been brought in a prior action. Davis v. U.S. Postal Service ,
119 M.S.P.R. 22, ¶ 17 (2012), overruled on other grounds by Cronin v. U.S. Postal
Service, 2022 MSPB 13, ¶ 19. It applies when (1) the prior decision was rendered by a
forum with competent jurisdiction, (2) the prior decision was a final decision on the
merits, and (3) the same cause of action and the same parties or their privies were
involved in both cases. Id.6
when such circumstances are present, the adjudication of a subsequent appeal of
the same action is not precluded. Zendejas, 107 M.S.P.R. 348, ¶ 6.
Here, although the appellant voluntarily withdrew her petition for
enforcement and the administrative judge indicated that the matter was being
dismissed “with prejudice,” the administrative judge thereafter contradictorily
informed the appellant that she could permissibly raise the same claims before the
Board again if a condition subsequent, i.e., the denial of her application for
disability retirement, occurred. CID at 1-3. Moreover, in the parties’ recorded
conversation, AR, the administrative judge informed the appellant that she could
permissibly withdraw her petition for enforcement and then subsequently refile
another petition for enforcement concerning the same claims. We therefore find
it appropriate to forward this matter for adjudication as a second petition for
enforcement. See Leno v. Department of Veterans Affairs , 90 M.S.P.R. 614,
¶¶ 4-6 (2002) (reinstating a withdrawn appeal when the appellant withdrew his
appeal based on incorrect representations of the administrative judge); cf. Brown,
102 M.S.P.R. 377, ¶ 10 (concluding that the dismissal of the appellant’s appeal as
withdrawn constituted a dismissal of the appeal with prejudice when the
withdrawal was not based on incorrect or misleading information, and the
appellant did not show that she did not comprehend the implications of her
decision).
Accordingly, we deny the appellant’s petition for review and forward the
matter to the regional office for docketing as a petition for enforcement.
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).
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.7
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. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 the9
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.8 The court of appeals must receive your petition for
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 of10
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. 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 | Davis_Stacie_A_DC-0752-20-0348-I-1__Final_Order.pdf | 2024-04-11 | STACIE ANNE DAVIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0752-20-0348-I-1, April 11, 2024 | DC-0752-20-0348-I-1 | NP |
1,812 | https://www.mspb.gov/decisions/nonprecedential/Woodard_Dion_C_DC-3443-22-0500-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DION CHANNING WOODARD,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-3443-22-0500-I-1
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dion Channing Woodard , Germantown, Maryland, pro se.
David L. Mannix , Esquire, 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
dismissed his classification 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
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 address the appellant’s new arguments on review that
the Board has jurisdiction over his claim as an employment practice or the denial
of a within-grade increase (WIGI), we AFFIRM the initial decision.
BACKGROUND
The appellant is a GS-13 Supervisory Acquisition Specialist employed in
the agency’s Bureau of Medicine and Surgery’s Naval Medical Logistics
Command (NMLC). Initial Appeal File (IAF), Tab 1 at 7. This position is in the
competitive service. Id. According to the appellant, in April 2020, the agency’s
Naval Sea Systems Command (NAVSEA) offered him a position with a higher
salary. Id. at 9. In May 2020, his then-supervisor agreed to, among other things,
submit the appellant’s position description to agency human resources within
30 days in exchange for the appellant remaining in his position. Id. at 13-14.
The appellant filed the instant appeal, alleging that the agency did not honor the
agreement. Id. at 5, 9-10. He asserted that, instead of reclassifying his position
within 30 days to reflect his additional duties, “[t]he command pen[ned] and
inked the changes” on his position description without seeking reclassification
2 years later. Id. at 5. He also asserted that he “lost pay based on the assumption
that the job would grade out at GS[ -]14.” Id.
The administrative judge issued a jurisdictional order, advising the parties
that the Board generally lacks jurisdiction over appeals concerning position2
classification disputes. IAF, Tab 3 at 2. She ordered the appellant to provide
evidence and argument on the jurisdictional issue. Id. at 3. The appellant did not
respond. IAF, Tab 6, Initial Decision (ID) at 2. Thereafter, the administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction. ID
at 1, 4. She determined that the appellant appeared to argue that, upon failing to
reclassify his position, the agency denied him a promotion to which it had agreed.
ID at 3. She reasoned that the appellant was alleging either that he was denied
reclassification of his position or a promotion, and that the Board lacks
jurisdiction over either matter. Id.
On review, the appellant argues for the first time that he was subjected to
an employment practice that violated the requirements of 5 C.F.R. § 300.103.
Petition for Review (PFR) File, Tab 1 at 4. He again asserts that the agency
breached an agreement to reclassify his position in order to retain him as
an employee. Id. at 4-5. The agency has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
With his petition for review, the appellant has submitted emails between
him and NAVSEA reflecting that NAVSEA offered him a position as an NT-05
Administrative/Technical Specialist in April 2020, and that he turned down the
offer in May 2020, in favor of remaining at NMLC due to his supervisor’s
commitment to request reclassification of his position. Id. at 23-27. He also
attaches emails from January 2022, in which he disagreed with an agency official
regarding what the official termed a “Pen and Ink change” to the appellant’s
position description. Id. at 20-23. The rest of his attachments are not new. Id.
at 15-19; IAF, Tab 1 at 11-15.
We have considered the appellant’s submissions, both below and on
review, to the extent that they are relevant to the issue of Board jurisdiction, a
matter that may be raised at any time during Board proceedings. Lovoy v.
Department of Health & Human Services , 94 M.S.P.R. 571, ¶ 30 (2003).3
However, the documents do not change the outcome here because they are
evidence supporting the appellant’s allegations.
An appellant bears the burden of proving that the Board has jurisdiction
over his appeal. Kim v. Department of the Army , 119 M.P.S.R. 429, ¶ 6 (2013).
If the appellant makes a nonfrivolous allegation of fact that, if proven, would
establish the Board’s jurisdiction, then he is entitled to a hearing at which he
must prove jurisdiction. Id. A nonfrivolous allegation is an assertion that, if
proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). The
administrative judge presumed the appellant’s allegations were true for the
purposes of determining whether he made nonfrivolous allegations of jurisdiction
entitling him to a jurisdictional hearing, as do we. ID at 3; see Ferdon v. U.S.
Postal Service, 60 M.S.P.R. 325, 329 (1994) (explain that an administrative judge
may not weigh the evidence and resolve conflicting assertions in determining if
an appellant has made a nonfrivolous allegation of jurisdiction). We agree with
the administrative judge that the appellant did not meet his burden.
The agency’s failure to reclassify the appellant’s position is not appealable to the
Board as an employment practice.
The appellant does not dispute, and we discern no basis to disturb, the
administrative judge’s findings that the Board lacks jurisdiction over the agency’s
failure to reclassify his position or promote him. ID at 2-3. For the first time on
review, however, the appellant argues that the agency’s failure to reclassify his
position constituted an employment practice applied to him by the Office of
Personnel Management (OPM) under 5 C.F.R. Part 300. PFR File, Tab 1 at 4.
Under 5 C.F.R. § 300.104(a), “[a] candidate who believes that
an employment practice which was applied to him or her by [OPM] violates a
basic requirement in § 300.103 is entitled to appeal to the Merit Systems
Protection Board under the provisions of its regulations.” To be appealable,
an employment practice must pertain to an applicant’s selection for an initial
appointment or competitive promotion. Crum v. Department of the Navy ,4
75 M.S.P.R. 75, 78-80 (1997) (citing Kelly v. Office of Personnel Management ,
53 M.S.P.R. 511, 516 (1992)); see 5 C.F.R. § 300.101 (explaining that the
purpose of OPM’s employment practices regulations is, as relevant here, “to
establish principles to govern . . . the employment practices . . . that affect the
recruitment, measurement, ranking, and selection of individuals for initial
appointment and competitive promotion in the competitive service”). The term
“employment practice,” defined in 5 C.F.R. § 300.101, refers to those practices
“that affect the recruitment, measurement, ranking, and selection of individuals
for initial appointment and competitive promotion in the competitive service.”
5 C.F.R. § 300.101.
We find that the appellant’s allegations concerning the agency’s actions do
not relate to initial appointment or competitive promotion. Moreover, as noted
above, employment practices concern “measurement, ranking, and selection,”
while here, the appellant asserts that the agency should have reclassified his
position to reflect the additional duties that he had performed for years. PFR
File, Tab 1 at 4; IAF, Tab 1 at 13. Presuming that the reclassified position would
grade out at GS-14, he believes he has “lost potential increases in pay in 2020,
2021, and 2022.” PFR File, Tab 1 at 5-6; IAF, Tab 1 at 5.
The appellant is arguing, in essence, that he should have been upgraded
without competition. Because his allegations do not relate to initial appointment
or competitive promotion, we find that they are insufficient to invoke the Board’s
jurisdiction over his claims as an employment practices appeal. See Crum,
75 M.S.P.R. at 79-80 (determining, as relevant here, that the appellants failed to
establish jurisdiction under 5 C.F.R. § 300.104(a) when they did not show that
any alleged improprieties in their reclassifications related to initial appointment
or competitive promotion).
The appellant has failed to allege that he was denied a WIGI.
For the first time on review, the appellant claims that he is appealing the
denial of a WIGI. PFR File, Tab 1 at 4. Citing 5 U.S.C. § 5335(c) and 5 C.F.R.5
§ 531.410, the appellant indicates that he is appealing a “[r]econsideration
decision sustaining a negative determination of competence for a general schedule
employee.” Id. As with his “employment practice” claim first raised on review,
we will consider this new argument because it implicates the Board’s jurisdiction.
See Lovoy, 94 M.S.P.R. 571, ¶ 30.
An employee under the General Schedule earns periodic increases in pay,
or within-grade increases, as long as his performance is at an acceptable level of
competence. 5 U.S.C. § 5335(a); Brookins v. Department of the Interior ,
2023 MSPB 3, ¶ 6. When an agency determines that an employee is not
performing at an acceptable level of competence and that a WIGI should be
withheld, the employee is entitled to “prompt written notice of that
determination” and an opportunity for reconsideration under regulations
prescribed by OPM. 5 U.S.C. § 5335(c). OPM’s regulations provide that
an employee must seek reconsideration of a decision to withhold a within-grade
increase in writing within 15 days of receiving the decision from the agency.
5 C.F.R. § 531.410(a)(1). If the determination is affirmed on reconsideration,
the employee is entitled to appeal to the Board. 5 U.S.C. § 5335(c).
The appellant does not allege that the agency denied him a periodic
increase in pay. PFR File, Tab 1 at 4. Nor has he claimed that anyone
determined his performance was unacceptable. Id. The appellant alleges that the
agency breached its agreement to seek reclassification of his position from a
GS-13 to a GS-14 level. IAF, Tab 1 at 5; PFR File, Tab 1 at 4-5. Thus, he has
failed to nonfrivolously allege that he was denied a WIGI.
Accordingly, we find that the administrative judge properly dismissed this
appeal for lack of jurisdiction. We modify the initial decision to address the
appellant’s new arguments on review. 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 | Woodard_Dion_C_DC-3443-22-0500-I-1__Final_Order.pdf | 2024-04-11 | DION CHANNING WOODARD v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-3443-22-0500-I-1, April 11, 2024 | DC-3443-22-0500-I-1 | NP |
1,813 | https://www.mspb.gov/decisions/nonprecedential/Senyo_ClaytonSF-315H-18-0665-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLAYTON SENYO,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-315H-18-0665-I-1
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clayton Senyo , Inyokern, California, pro se.
Brandon M. Barros , China Lake, 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 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 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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On petition for review, the appellant does not challenge the administrative
judge’s findings that he failed to make a nonfrivolous allegation2 that he was an
“employee” for purposes of 5 U.S.C. chapter 75 appeal rights, or that there was a
regulatory basis for his appeal under the provisions set forth in 5 C.F.R. part 315,
subpart H. Petition for Review (PFR) File, Tab 1 at 3-7; Initial Appeal File,
Tab 7, Initial Decision at 3-7; see Ferdon v. U.S. Postal Service , 60 M.S.P.R.
325, 329 (1994) (holding that an appellant is entitled to a jurisdictional hearing if
he presents nonfrivolous allegations of Board jurisdiction). Rather, the appellant
asserts that he did not raise a discrimination allegation in his appeal form and that
the administrative judge incorrectly docketed the appeal as a mixed-case appeal.
PFR File, Tab 1 at 4-7. He claims that this error limits his due process rights by
affecting his ability to file a civil action at the conclusion of the equal
employment opportunity (EEO) process regarding a separate complaint that he
filed against the agency. Id. at 7. The appellant requests that the Board dismiss
the appeal without prejudice. Id.
In light of the Board’s dismissal of this appeal for lack of jurisdiction, this
action is not a mixed-case complaint for purposes of the appellant’s EEO
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
complaint, and Equal Employment Opportunity Commission (EEOC) regulations
require the agency to reissue a notice to the appellant pursuant to 29 C.F.R.
§ 1614.108(f) giving him the right to elect between a hearing before an EEOC
administrative judge or an immediate final decision on his discrimination claims.
See 29 C.F.R. § 1614.302(b). The letter from the agency’s Deputy EEO Officer
that the appellant submits on review appears to meet this obligation. PFR File,
Tab 1 at 9-11.3 Regardless, any complaint that the appellant has concerning the
agency’s handling of his EEO complaint should be made through the EEO
process. To the extent that the appellant did not intend to file a mixed-case
appeal, we discern no prejudice to the appellant’s substantive rights by the
docketing of this appeal, which was properly dismissed for lack of jurisdiction.
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).
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
3 We have considered this evidence submitted for the first time on review because the
letter was sent to the appellant after the issuance of the initial decision in the present
appeal. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (stating 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).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
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. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.6
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.7 | Senyo_ClaytonSF-315H-18-0665-I-1__Final_Order.pdf | 2024-04-11 | CLAYTON SENYO v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-315H-18-0665-I-1, April 11, 2024 | SF-315H-18-0665-I-1 | NP |
1,814 | https://www.mspb.gov/decisions/nonprecedential/Mayo_MeganSF-1221-20-0719-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MEGAN MAYO,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-1221-20-0719-W-1
DATE: April 11, 2024
THIS ORDER IS NONPRECEDENTIAL1
Chalmers Johnson , Esquire, Port Orchard, Washington, for the appellant.
David Thayer , Esquire, and Joshua J. Roever , Esquire, Bremerton,
Washington, 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. We discern no basis for disturbing the findings in the initial decision as
to the identified allegations of reprisal, but we nevertheless find it necessary for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the administrative judge to consider an additional allegation of reprisal based on a
perceived whistleblower theory, which was not addressed in the initial decision.
We therefore VACATE the initial decision and REMAND the appeal to the
Western Regional Office for further adjudication in accordance with this Remand
Order.
BACKGROUND
The appellant was appointed to a WG-1 Helper Trainee (Marine Machinery
Mechanic) position at Puget Sound Naval Shipyard on August 6, 2018, subject to
the successful completion of a 2-year probationary period. Initial Appeal File
(IAF), Tab 7 at 33-34. On March 20, 2020, at the beginning of the COVID-19
pandemic, the appellant emailed the Base Commander of the shipyard and a union
representative, requesting that the command start paying the essential employees
hazard or environmental pay in light of the serious and substantial risks they
faced in continuing to report to work. Petition for Review (PFR) File, Tab 1
at 16. Two days later, on March 22, 2020, the appellant emailed a member of
Congress complaining about the lack of safety precautions at the shipyard to
combat the spread of COVID-19, including a lack of hand sanitizer, limited hot
running water, and the inability to social distance while working at the shipyard.2
IAF, Tab 5 at 15-16. That same day, she posted the contents of the email to the
congressman on her social media page. Id. at 18-19.
The following day, March 23, 2020, the appellant came to work wearing a
sweatshirt that read “Shipyard before self” on one side, which was a quote of a
statement made by the Base Commander at the 2019 Shipyard Change of
Command Ceremony. Id. at 31. On the other side, the sweatshirt stated, “1 in
5 people between 20-44 will require hospitalization” and “1 in 10 ICU patients
are between the ages of 20-44,” quoting “CDC 2020.” Id. When the appellant
2 The appellant explained that her previous experience in nursing made her “intimately
familiar” with the “dire warnings” coming from the medical community regarding the
dangers of COVID-19. IAF, Tab 5 at 15.2
wore the sweatshirt again the next day, her supervisor instructed her to remove it
and she complied, turning the sweatshirt inside out. Id. at 27-28; Hearing Record
(HR) (testimony of the appellant’s supervisor). That day, the appellant emailed
the Shipyard Superintendent regarding the sweatshirt, stating that “[her] hoodie
[was] making a statement about the current pandemic our country and the world
face and how the yard is handling it . . . ” and reiterating her claims regarding the
employees’ entitlement to hazard or environmental pay. IAF, Tab 5 at 27-28.
The appellant also posted a photo of her sweatshirt on her social media page,
explaining that she “made a statement” about the lack of effort by the shipyard in
the face of the pandemic, including, among other things, that she believed the
employees who continued to report should receive hazard or environmental pay.
Id. at 30-31.
The agency conducted a pre-action investigation into the appellant’s action,
i.e., wearing the sweatshirt. IAF, Tab 7 at 29-32. Subsequently, the deciding
official terminated the appellant during her probationary period, effective
March 31, 2020, for failure to demonstrate fitness and qualifications for
continued employment based on a charge of conduct unbecoming a Federal
employee. IAF, Tab 5 at 33-35, 99.
The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging that her termination was the result of whistleblower reprisal. IAF, Tab 9
at 5-27. After OSC closed its investigation, the appellant filed an IRA appeal
with the Board, alleging that she was terminated due to her protected disclosures,
specifically: (1) disclosing to management officials that a supervisor had shared
confidential information with her and told her not to tell anyone; (2) wearing a
sweatshirt to work displaying a quote from the Base Commander and facts about
COVID-19; (3) filing a formal complaint with the Occupational Safety and Health
Administration (OSHA) about the lack of adequate safety precautions at the
shipyard against the spread of COVID-19; (4) posting her OSHA complaint on
social media; and (5) writing a letter of complaint to her member of Congress3
about the lack of precautions being taken at the shipyard to protect workers from
COVID-19.3 IAF, Tab 5 at 5-6.
After finding jurisdiction over the appeal and holding a hearing on the
merits, the administrative judge issued an initial decision denying the appellant’s
request for corrective action. IAF, Tab 10 at 1-3; Tab 31, Initial Decision (ID).
Specifically, the administrative judge determined that disclosures 1, 2, and 4,
including the sweatshirt disclosure, were not protected, and while the third
disclosure may be protected, the appellant failed to establish that it was a
contributing factor to her termination. ID at 11-15. Additionally, the
administrative judge found that the appellant established that the fifth disclosure,
i.e., the letter to the member of Congress, was protected because it was a
disclosure made to Congress regarding alleged violations of law, rule, regulation,
or a substantial and specific danger to public health and safety. ID at 15. After
finding that the appellant’s protected disclosure was a contributing factor in her
termination, the administrative judge found that the agency had established by
clear and convincing evidence that it would have terminated the appellant absent
the whistleblowing activity. ID at 15-22. Thus, she denied the appellant’s
request for corrective action. ID at 22.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge erred in
finding that her sweatshirt was not a protected disclosure, asserting that the
agency knew, due to her emails and social media posts, that the sweatshirt was
worn in protest of the lax COVID-19 protections and the lack of hazard and
3 The appellant asserted that she made a sixth disclosure, i.e., a complaint about safety
to management when she worked on the Sail Team, which was not accepted by the
administrative judge. IAF, Tab 5 at 6, Tab 10 at 2. Although the administrative judge
did not explain why she rejected this disclosure, we surmise that it is because the
appellant failed to show that she exhausted the claim in front of OSC. IAF, Tab 9
at 5-27. Nevertheless, because the appellant did not raise an objection to this exclusion
below or on review, and it appears that she failed to exhaust this disclosure with OSC,
we do not address it further.4
environmental pay. PFR File, Tab 1 at 8-12. The agency has responded in
opposition to the appellant’s petition for review. PFR File, Tab 3.
The record supports the administrative judge’s findings, and we discern no
reason to disturb them. However, as discussed below, we find that the appellant
has established jurisdiction over her IRA appeal and we remand accordingly. See
Ney v. Department of Commerce , 115 M.S.P.R. 204, ¶ 7 (2010) (stating that the
Board’s jurisdiction is always before the Board and can be raised by the parties or
sua sponte by the Board at any time).
The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before the Office of Special Counsel (OSC) and makes
nonfrivolous allegations4 that: (1) she made a disclosure described under
5 U.S.C. § 2302(b)(8), or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3),
1221(e)(1); Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed.
Cir. 2001). For the first element, engaging in whistleblowing activity by making
a protected disclosure, the Board has found that an individual who is perceived as
a whistleblower is still entitled to the protections of the Whistleblower Protection
Act, even if she has not made protected disclosures. King v. Department of Army ,
116 M.S.P.R. 689, ¶ 6 (2011).
The analysis of whether an appellant was actually a whistleblower is
different from the analysis of whether an appellant was perceived as a
whistleblower. In cases falling under the former category, the Board will focus
its analysis on the appellant’s perceptions and the disclosures themselves, i.e.,
whether she reasonably believed that her disclosures evidenced the type of
wrongdoing listed under 5 U.S.C. § 2302(b)(8). Id., ¶ 8. In cases falling under
4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s); see Hessami v. Merit Systems Protection Board , 979 F.3d
1362, 1364, 1369 (Fed. Cir. 2020).5
the latter category, the Board will focus its analysis on the agency’s perceptions,
i.e., whether the agency officials involved in the personnel actions at issue
believed that the appellant made or intended to make disclosures that evidenced
the type of wrongdoing listed under 5 U.S.C. § 2302(b)(8). Id. In those cases,
the issue of whether the appellant actually made protected disclosures is
immaterial; the issue of whether the agency perceived the appellant as a
whistleblower will essentially stand in for that portion of the Board’s analysis in
both the jurisdictional and merits stages of the appeal. Therefore, to establish
jurisdiction over an IRA appeal alleging that the agency retaliated against an
appellant based on its perception that she was a whistleblower, the appellant must
show that she exhausted her remedies before OSC, and make a nonfrivolous
allegation that the agency perceived her as a whistleblower, and that the agency's
perception was a contributing factor in its decision to take or not take the
personnel action at issue. Id., ¶ 9.
We first find that the appellant exhausted her administrative remedies
before OSC. The Board, in Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶¶ 10-11, clarified the substantive requirements of exhaustion.
The requirements are met when an appellant has provided OSC with a
sufficient basis to pursue an investigation. The Board’s jurisdiction is limited
to those issues that were previously raised with OSC. However, appellants
may give a more detailed account of their whistleblowing activities before the
Board than they did to OSC. Id. Appellants may demonstrate exhaustion
through their initial OSC complaint; evidence that they amended the original
complaint, including but not limited to OSC’s determination letter and other
letters from OSC referencing any amended allegations; and their written
responses to OSC referencing the amended allegations. Id.
In her OSC complaint, the appellant alleged that she was terminated for,
among other things, wearing a sweatshirt to work with a quotation from the6
Shipyard Commander and COVID-19 statistics from the Center for Disease
Control. IAF, Tab 1 at 9, Tab 9 at 13. The appellant alleged in her complaint
that agency officials told her to “take [the sweatshirt] off, change or cover it,”
and that subsequently, the agency investigated her “over the shirt.” IAF, Tab 9
at 13, 15. The appellant further contended in her OSC complaint that the agency
retaliated against her because the CDC statistics displayed on her sweatshirt were
“alarming.” Id. at 15. Under the circumstances, when the appellant has alleged
in her OSC complaint agency reactions and responses to the sweatshirt incident
that occurred prior to the termination, we find that the appellant’s OSC complaint
contained an allegation that she was perceived as a whistleblower. Therefore, the
appellant exhausted her administrative remedies as to this claim.
Next, we find that the appellant made a nonfrivolous allegation that agency
officials involved believed that the appellant made or intended to make
disclosures that evidenced the type of wrongdoing listed under 5 U.S.C.
§ 2302(b)(8). As set forth above, the appellant alleged that, when the appellant
wore the sweatshirt on March 24, 2020, her supervisor instructed her to remove it.
IAF, Tab 5 at 27. On the same date, right after she wore the sweatshirt, the
appellant emailed the Shipyard Superintendent that her sweatshirt was intended to
“mak[e] a statement” regarding “how the yard is handling” the pandemic and
included a direct reference to the lack of hazard or environmental pay. Id.
at 27-28. Thereafter, the agency immediately conducted a pre-action
investigation into the sweatshirt incident. IAF, Tab 7 at 29-32. The deciding
official testified that the sweatshirt “obviously” played a role in the termination
decision. HR (testimony of deciding official). For purposes of our jurisdictional
analysis at this stage in the proceedings, we find that the appellant nonfrivolously
alleged that the agency at least perceived the appellant as a whistleblower given
the nature of the appellant’s sweatshirt disclosure and agency officials’
knowledge of the same. See Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547, ¶ 8 n.5 (2016) (finding that the appellant nonfrivolously7
alleged that the agency perceived him as a whistleblower based on his
supervisor’s disclosure of information attributable to the appellant); Mausser v.
Department of the Army , 63 M.S.P.R. 41, 44 (1994) (determining that the agency
may have perceived the appellant as a whistleblower to the extent that the agency
knew of the list of “waste, fraud, and abuse,” “safety issues,” and violation of
“government regulations” and the appellant’s intention to disclose it); Thompson
v. Farm Credit Administration , 51 M.S.P.R. 569, 581-82 (1991) (determining that
the agency’s Chairman perceived the appellant to be “a dangerous proponent of a
view that could prove embarrassing—possibly evidencing mismanagement and
abuse of discretion”).
Furthermore, we find that the appellant nonfrivolously alleged that the
agency’s perception was a contributing factor in her termination, as agency
officials launched an investigation of the appellant wearing the sweatshirt, IAF,
Tab 7 at 29-32, and she was terminated a week after wearing the sweatshirt, IAF,
Tab 5 at 33-35, 99. Thus, the appellant has met the knowledge/timing test and
satisfies the contributing factor standard. See Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 13 (2016) (stating that an appellant meets the
contributing factor criterion by meeting the knowledge/timing test).
Because the appellant has established jurisdiction over this claim, we
remand this matter to the Western Regional Office for further adjudication. The
appellant is entitled to a hearing on the merits to determine if her status as a
perceived whistleblower was a contributing factor in her termination. See Rusin
v. Department of the Treasury , 92 M.S.P.R. 298, ¶ 20 (2002) (stating that, when
the test for establishing the Board’s IRA jurisdiction has been met, the appellant
is entitled to a hearing on the merits of their claim).8
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.5
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.9 | Mayo_MeganSF-1221-20-0719-W-1_Remand_Order.pdf | 2024-04-11 | MEGAN MAYO v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-1221-20-0719-W-1, April 11, 2024 | SF-1221-20-0719-W-1 | NP |
1,815 | https://www.mspb.gov/decisions/nonprecedential/Montanez_DelirisDA-0752-23-0115-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DELIRIS MONTANEZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-23-0115-I-1
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deliris Montanez , El Paso, Texas, pro se.
Timothy D. Johnson , Esquire, Fort Bragg, North Carolina, 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 concerning her involuntary separation from military service
with the U.S. Army Reserve (Army) and her removal from an Army promotion
list 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
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge dismissed this appeal concerning the appellant’s
uniformed service in the Army Reserve for lack of jurisdiction. Initial Appeal
File, Tab 8, Initial Decision (ID). He found that the appellant failed to
nonfrivolously allege that she is an “employee” with chapter 75 appeal rights or
that she was subjected to an appealable adverse action. ID at 3. He also found
that, as an individual serving in the uniformed service, the Board lacks
jurisdiction over the appellant’s potential whistleblower retaliation claim and,
in any event, she failed to nonfrivolously allege that she exhausted her claims by
filing a complaint with the Office of Special Counsel. ID at 4 (citing Special
Counsel ex rel. Hardy v. Department of Health and Human Services ,
117 M.S.P.R. 174, ¶¶ 5-18 (2011) (holding that the Board lacks jurisdiction over
whistleblower retaliation claims brought by individuals serving in the uniformed
service)). On review, the appellant challenges the merits of her separation from
the Army Reserve, argues that the Army failed to release information to her
through the Freedom of Information Act, and discusses her attempts to resolve
her concerns against the Army though other means. Petition for Review (PFR)
File, Tab 1 at 4-6. She also attaches a letter from the Department of Homeland
Security (DHS) Office of Inspector General regarding a whistleblower retaliation2
complaint that she purportedly filed against DHS. Id. at 7. These arguments and
evidence are not relevant to the issue of Board jurisdiction over this appeal,
and we find no basis to disturb the administrative judge’s finding that the Board
lacks jurisdiction over the appellant’s claims against the Army.2 To the extent the
appellant makes claims concerning her civilian employment with DHS, we note
that, at the time she filed her petition for review, the appellant had two pending
appeals against DHS and the Board since has issued a separate order in those
matters.3 Montanez v. Department of Homeland Security , MSPB Docket Nos.
DA-1221-20-0330-W-2 and DA-1221-20-0421-W-2. Based on the foregoing,
we deny the appellant’s petition for review and affirm the initial decision
dismissing this appeal for lack of jurisdiction.
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
2 A reply is limited to the factual and legal issues raised by another party in response to
the petition for review and it may not raise new allegations of error. 5 C.F.R.
§ 1201.114(a)(4). Accordingly, we will not consider arguments or evidence first raised
by the appellant in her reply. PFR File, Tab 4. In any event, the appellant has not
established that the argument or evidence contained in her reply is based on new
information that was unavailable prior to the close of the record before the
administrative judge despite her due diligence. Id.; 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 evidence submitted for the first time on review absent a
showing that it was unavailable before the record was closed before the administrative
judge despite the party’s due diligence).
3 The administrative judge instructed the appellant that, if she was raising additional
claims against DHS, beyond those covered in her pending appeals, she could file a
separate Board appeal. ID at 3 n.4. The appellant has not filed any new appeals against
DHS.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of6
competent jurisdiction.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 | Montanez_DelirisDA-0752-23-0115-I-1__Final_Order.pdf | 2024-04-11 | DELIRIS MONTANEZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-23-0115-I-1, April 11, 2024 | DA-0752-23-0115-I-1 | NP |
1,816 | https://www.mspb.gov/decisions/nonprecedential/Shepherd_CindyAT-1221-22-0244-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CINDY SHEPHERD,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-1221-22-0244-W-1
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cindy Shepherd , Apopka, Florida, pro se.
Daniel Rodriguez , 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 her termination 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. We
AFFIRM the initial decision except as expressly MODIFIED by this Final Order
to find that the appellant did not prove that she meets the statutory definition of
an “employee” with chapter 75 appeal rights, and that she exhausted an additional
alleged disclosure and personnel actions with the Office of Special Counsel
(OSC) but, nevertheless, failed to establish jurisdiction over her claims as
an individual right of action (IRA) appeal.
BACKGROUND
The appellant was employed by the agency’s Federal Emergency
Management Agency (FEMA) as a Reservist Emergency Management Specialist.
Initial Appeal File (IAF), Tab 7 at 12-13, 15. The legal authority for the
appellant’s appointment was Pub. L. No. 93-288, as amended, known as the
Stafford Act.2 Id. at 12, 15. On October 22, 2021, the agency terminated her
based on charges of conduct unbecoming and lack of candor. Id. at 13. The basis
of the conduct unbecoming charge was that she allegedly discussed a subordinate
employee’s medical condition with her while on speakerphone and within earshot
of other employees, including a nurse practitioner, without her consent.
2 The Disaster Relief Act Amendments of 1974 (1974 Act), Pub. L. No. 93-288, 88 Stat
143, was amended by the Disaster Relief and Emergency Assistance Amendments of
1988 (1988 Act), Pub. L. No. 100-707, 102 Stat. 4689. Section 102 of the 1988 Act
renamed the 1974 Act “The Robert T. Stafford Disaster Relief and Emergency
Assistance Act” (Stafford Act) (codified as amended at 42 U.S.C. §§ 5121-5207).2
Id. at 13-14. The agency also alleged that she called the same subordinate
employee a “bitch” on another occasion. Id. She was charged with lack of
candor because she later stated that her subordinate consented to having the nurse
listen on speakerphone, which her subordinate denied. Id. The appellant filed a
complaint with OSC, in which she claimed as protected activities the filing of
an equal employment opportunity (EEO) complaint following her termination and
her involvement as a witness in a coworker’s August 2016 or 2017 EEO
complaint. IAF, Tab 4 at 12. The appellant also alleged that her termination was
a result of her April 16, 2021 report to a manager that her Group Supervisor had
an “outburst” that created a hostile work environment. IAF, Tab 4 at 12-13,
Tab 5 at 5. OSC sent the appellant a close-out letter on February 24, 2022.
IAF, Tab 1 at 10.
The appellant filed a timely appeal to the Board, alleging that the agency
investigated her alleged misconduct and terminated her in retaliation for, among
other matters, her participation in her coworker’s EEO case, her counseling of her
subordinate, and her April 16, 2021 report of her Group Supervisor’s behavior.
IAF, Tab 1 at 1, 3, 5, Tab 5 at 5-8. She also alleged that the agency’s actions
were motivated by race and age discrimination. IAF, Tab 1 at 3, 5, Tab 5 at 8.
The administrative judge issued a jurisdictional order identifying the appeal as an
IRA appeal. IAF, Tab 3 at 2. The appellant submitted a list of alleged
disclosures and activities, and a copy of her OSC complaint and correspondence
with OSC. IAF, Tab 1 at 8-9, Tab 4 at 4-21, Tab 5 at 5-8.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 1 at 2, Tab 10, Initial Decision (ID) at 1, 7. The administrative judge
determined that the appellant did not exhaust any disclosures with OSC. ID at 3.
She determined that the appellant raised with OSC her involvement in a
coworker’s 2016 EEO complaint. Id. The administrative judge found, in essence,
that the appellant did not allege she “testif[ied] or otherwise . . . assist[ed]” her3
coworker in pursuing her EEO complaint, and therefore failed to allege that she
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(B). ID at 3-4. The
administrative judge went on to conclude that, assuming arguendo the appellant’s
involvement was protected activity under section 2302(b)(9)(B), she failed to
nonfrivolously allege that her protected activity was a contributing factor in her
termination in October 2021. ID at 4-6.
The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The agency has not responded. On March 1, 2023, the Office
of the Clerk of the Board issued an Order to the parties to file evidence and
argument regarding whether the Board has chapter 75 jurisdiction over the
appellant’s termination. PFR File, Tab 3. Neither party responded.
DISCUSSION OF ARGUMENTS ON REVIEW
In her petition for review, the appellant challenges the merits of her
October 2021 termination and reasserts claims of discrimination and retaliation .
PFR File, Tab 1 at 1-2. She submits evidence for the first time on review of two
statements, allegedly from coworkers, in support of her argument that she did not
commit the misconduct for which she was terminated. Id. at 3-4.
The appellant has not met her burden to establish jurisdiction over an adverse
action appeal under 5 U.S.C. chapter 75.
The administrative judge did not address the issue of the Board’s
jurisdiction over an adverse action appeal under 5 U.S.C. chapter 75, and the
parties have not raised this issue on review. Nonetheless, we raise the issue here
because 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). Because the appellant did not
receive this information regarding a potential chapter 75 adverse action appeal,
the Office of the Clerk of the Board issued the show cause order, discussed
above. PFR File, Tab 3. The order explained the jurisdictional issue and4
provided both parties with an opportunity to respond. Id. As also indicated
above, neither party responded. Based on the record before us, we find that the
appellant failed to nonfrivolously allege she is an “employee” with chapter 75
appeal rights.
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
to prove by preponderant evidence that her appeal is within the Board’s
jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). Although there is no statutory
requirement that the Board hold a hearing on the threshold issue of jurisdiction,
the Board should hold an evidentiary hearing to resolve the jurisdictional question
if the appellant makes a nonfrivolous allegation of jurisdiction but a
determination cannot be made based on the documentary evidence. See Walker v.
Department of the Army , 119 M.S.P.R. 391, ¶ 6 (2013). Nonfrivolous allegations
of Board jurisdiction are allegations of fact which, if proven, could establish that
the Board has jurisdiction over the matter at issue. Id., ¶ 6 n.2; 5 C.F.R.
§ 1201.4(s).
Here, our jurisdictional determination depends on whether the appellant
met the statutory definition of an “employee” under 5 U.S.C. § 7511(a)(1). See
Moncada v. Executive Office of the President, Office of Administration ,
2022 MSPB 25, ¶¶ 13-24 (observing that meeting the definition of “employee”
and being subject to an appealable action are the only requirements for chapter 75
jurisdiction). Because we determine that she did not, we need not address the
agency’s argument, below, that Stafford Act appointees do not have adverse
action appeal rights under chapter 75. IAF, Tab 8 at 5-6.
The appellant has not presented any argument on the issue of the Board’s
chapter 75 jurisdiction. The Standard Form 50 (SF-50) that she provided below
documenting her termination indicates that she was a nonpreference eligible
excepted service appointee. IAF, Tab 1 at 7. The appellant has not asserted that5
this is inaccurate or that she was appointed to the competitive service. Further,
she indicated below that she is not preference eligible. Id. at 1. Therefore, we
examine here whether she established that she is a nonpreference eligible
excepted service appointee with Board appeal rights. A nonpreference eligible
individual in the excepted service is an “employee” as defined in 5 U.S.C.
§ 7511(a)(1)(C) if she meets the requirements of either subsection (i) or (ii) of the
statute. Martinez v. Department of Homeland Security , 118 M.S.P.R. 154, ¶ 5
(2012); see Van Wersch v. Department of Health & Human Services , 197 F.3d
1144, 1151 (Fed. Cir. 1999). The requirements of subsection (i) are met if the
individual is not serving a probationary or trial period under an initial
appointment pending conversion to the competitive service. 5 U.S.C. § 7511(a)
(1)(C). The requirements of subsection (ii) are met if the individual has
completed 2 years of current continuous service in the same or similar positions
in an Executive agency under other than a temporary appointment limited to
2 years or less. Id.
The appellant has not alleged that her excepted service position was one
that was pending conversion to the competitive service so as to qualify for
coverage under subsection (i). See Forest v. Merit Systems Protection Board ,
47 F.3d 409, 412 (Fed. Cir. 1995) (rejecting an argument that would effectively
interpret 5 U.S.C. § 7511(a)(1)(C)(i) to eliminate the requirement that an
“employee” under that provision be serving in a position pending conversion to
the competitive service). Further, nothing in the language of the Stafford Act
specifies that appointments made under the Act are “pending conversion to the
competitive service.” 42 U.S.C. §§ 5121-5207.
The appellant also has not alleged that her service was in a position other
than a temporary appointment limited to 2 years or less, as required under
5 U.S.C. § 7511(a)(1)(C)(ii). Box 24 of the appellant’s SF-50 documenting her
termination reflects her tenure as “none,” which, although not
dispositive, suggests that her appointment was temporary. IAF, Tab 1 at 7; see6
Olson v. Department of Veterans Affairs , 92 M.S.P.R. 336, ¶ 7 (2002) (stating
that an SF-50 reflecting an appellant’s tenure as “none” suggested her position
was temporary). Also, the statutory provisions of the Stafford Act grant agencies
the authority to appoint “ temporary personnel” and to incur “obligations arising
out of the temporary employment of additional personnel.” 42 U.S.C. § 5149(b)
(1), (3) (emphasis added).
Accordingly, we conclude that the appellant has failed to make allegations
that, if true, would establish that she is an “employee” with Board appeal rights
as defined by 5 U.S.C. § 7511(a)(1). Thus, she has failed to establish chapter 75
jurisdiction over her termination.
We affirm, as modified, the administrative judge’s finding that the appellant has
not established IRA jurisdiction.
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).
The appellant exhausted the following alleged protected disclosures
or activities with OSC: (1) involvement in a coworker’s EEO
complaint in 2016 or 2017; and (2) disclosure of her Group
Supervisor’s misconduct in April 2021.
On review, the appellant reasserts that she exhausted her administrative
remedies with OSC. PFR File, Tab 1 at 1. She reasserts that her subordinate
employee falsely claimed she engaged in the misconduct for which she was
terminated in retaliation for verbally counseling the subordinate. PFR File, Tab 1
at 1; IAF, Tab 5 at 5. She also re-raises claims of retaliation for assisting her7
coworker with an EEO case in 2016 or 2017, and for complaining of her Group
Supervisor’s conduct. PFR File, Tab 1 at 1-2. The administrative judge found
that the appellant’s involvement in a coworker’s EEO complaint in 2016 or 2017
was the only activity or disclosure that had been exhausted with OSC. ID at 3.
In an IRA appeal, an appellant “shall seek corrective action from the
Special Counsel before seeking corrective action from the Board.” 5 U.S.C.
§ 1214(a)(3); Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 5.
To meet the substantive requirements of exhaustion, the appellant must have
provided OSC with sufficient basis to pursue an investigation which might lead to
corrective action. Chambers, 2022 MSPB 8, ¶ 10. An appellant may demonstrate
exhaustion through her initial OSC complaint or correspondence with OSC.
Id., ¶ 11. Exhaustion may also be proved through other sufficiently reliable
evidence, such as an affidavit or declaration attesting that the appellant raised
with OSC the substance of the facts in her Board appeal. Id. The appellant must
prove exhaustion with OSC by preponderant evidence, not just nonfrivolous
allegations. Id.
We agree with the administrative judge that the appellant’s involvement in
the 2016 or 2017 EEO complaint was exhausted with OSC. IAF, Tab 4 at 12.
However, we find that she also exhausted with OSC her alleged complaint about
her Group Supervisor. PFR File, Tab 1 at 2; IAF, Tab 4 at 13. In her pleadings
below, the appellant identified as “Disclosure 3” her complaint to the Deputy
Branch Director about a Group Supervisor’s misconduct in April 2021.
IAF, Tab 5 at 5-6. She described this disclosure in her OSC complaint and
alleged retaliation for the same, providing OSC with a sufficient basis to pursue
an investigation. IAF, Tab 4 at 13; see Chambers, 2022 MSPB 8, ¶ 10. Thus, we
modify the initial decision to find that this alleged disclosure was exhausted with
OSC.3
3 Although the appellant also referenced her 2021 EEO complaint challenging her
termination in her OSC complaint, she does not re-raise a claim of retaliation for this
activity on review. IAF, Tab 4 at 12, Tab 5 at 7, 15-23; PFR File, Tab 1 at 1-2.8
The remaining alleged disclosures and activities listed by the appellant in
her pleadings below are absent from her OSC complaint, and she failed to present
other sufficiently reliable evidence to prove exhaustion of these claims.
IAF, Tab 4 at 12-13, Tab 5 at 5-8. Out of these disclosures and activities, she re-
raises on review only “Disclosure 1,” i.e., her verbal counseling session with her
subordinate regarding her subordinate’s attitude, behavior, and performance.
IAF, Tab 5 at 5, 21; PFR File, Tab 1 at 1. Missing from the appellant’s OSC
complaint, her correspondence with OSC, and her statement below is any
evidence or allegation that the appellant raised this alleged disclosure with OSC.
We modify the initial decision to acknowledge this claimed disclosure, but
nonetheless find the Board lacks jurisdiction due to the appellant’s failure to
prove exhaustion.
The appellant failed to make a nonfrivolous allegation that her
disclosure of supervisory misconduct evidenced one of the
circumstances described in 5 U.S.C. § 2302(b)(8).
In her sworn Board pleadings, the appellant described her alleged
disclosure to a Deputy Branch Director on April 16, 2021, that a Group
Supervisor “lost control and unbecoming [sic] of a supervisor” during a group
meeting in a medical tent, and “something needed to be done.” IAF, Tab 5 at 5.
She alleged that the Deputy Branch Director, who was present for the meeting,
witnessed the Group Supervisor yell and scream at her and “get in [her] face.” Id.
Furthermore, she allegedly disclosed that the conduct created a “hostile
environment.” IAF, Tab 4 at 16, Tab 5 at 6; PFR File, Tab 1 at 2.
A protected disclosure is a disclosure of information that the appellant
reasonably believes evidences any violation of any law, rule, or regulation, gross
Moreover, the Board only has IRA jurisdiction over EEO activity covered by 5 U.S.C.
§ 2302(b)(9)(A)(i), meaning it seeks to remedy whistleblower reprisal under 5 U.S.C.
§ 2302(b)(8). Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 8. Here, the
appellant’s EEO complaint, which alleged discrimination based on age and race and
retaliation for EEO activity, did not seek to remedy whistleblower reprisal. IAF, Tab 5
at 15-23. Thus, the Board lacks IRA jurisdiction over this claim. 9
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); see Bradley
v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 7 (2016). At the
jurisdictional stage, the appellant is burdened only with making a nonfrivolous
allegation that she reasonably believed that her disclosure evidenced a violation
of one of the circumstances described in 5 U.S.C. § 2302(b)(8). Bradley,
123 M.S.P.R. 547, ¶ 7. 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. Gabel v. Department of Veterans Affairs , 2023 MSPB 4,
¶ 6. The disclosures must be specific and detailed, not vague allegations of
wrongdoing. Id.
After considering the evidence and argument in a light most favorable to
the appellant, we find that she failed to make nonfrivolous allegations that she
reasonably believed that the Group Supervisor’s conduct evidenced any category
of wrongdoing specified in 5 U.S.C. § 2302(b)(8). The appellant never claimed
that she believed that the Group Supervisor assaulted her, violated a law, rule or
regulation, caused the agency to expend funds, or posed a risk to anyone’s safety.
IAF, Tab 4 at 12-16, Tab 5 at 5-6; PFR File, Tab 1 at 2. Nor has the appellant
alleged facts suggesting that she reasonably believed the Group Supervisor’s
conduct created a substantial risk of significant impact on the agency’s ability to
accomplish its mission as necessary to constitute an abuse of discretion. See
Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 16 (2007).
Harassment or intimidation of other employees may constitute an abuse of
authority. Herman v. Department of Justice , 115 M.S.P.R. 386, ¶ 11 (2011).
An abuse of authority occurs when there is an arbitrary or capricious exercise of10
power by a Federal official or employee that adversely affects the rights of any
person or results in personal gain or advantage to herself or preferred other
persons. Id.; see also Ayers v. Department of the Army , 123 M.S.P.R. 11,
¶¶ 13-20 (2015) (finding that an appellant reasonably believed that her disclosure
of her supervisor’s alleged harassment evidenced an abuse of authority after he
placed her on a retraining program for unjustified reasons and gave her a negative
performance evaluation that she successfully challenged through the grievance
process, and noting that other employees shared the appellant’s belief that the
supervisor was harassing her); Murphy v. Department of the Treasury ,
86 M.S.P.R. 131, ¶¶ 5-7 (2000) (finding an appellant made nonfrivolous
allegations that he disclosed an abuse of authority when he reported that his
supervisor allegedly engaged in threats, profane tirades, and physical acts of
aggression such as slamming down a baseball bat, to intimidate the appellant and
other staff members into following the supervisor’s requests).
The appellant has not alleged facts which suggest she reasonably believed
the Group Supervisor’s “outburst” was arbitrary and capricious. The only
information the appellant provides regarding the cause of the incident is that she
refused to provide the Group Supervisor with the identity of an individual “who
repeated a statement [the Group Supervisor] made, . . . which was passed onto the
Emergency Manager.” IAF, Tab 5 at 5. Without any context as to the nature of
the alleged statement or the alleged yelling and screaming by the Group
Supervisor, we cannot judge whether the appellant reasonably believed the Group
Supervisor’s response was disproportionate to its cause. Further, the appellant
has not set forth any facts that would suggest that she reasonably believed her
Group Supervisor’s behavior adversely impacted the appellant’s rights or resulted
in personal gain to her supervisor or anyone else. IAF, Tab 4 at 16, Tab 5 at 5-6;
PFR File, Tab 1 at 2. Although the appellant claims she was transferred to
another location and demoted following the incident, she represents that the
agency took these actions as a result of her own behavior during the incident, not11
that of the Group Supervisor. IAF, Tab 5 at 5-6. Accordingly, we find that the
appellant’s disclosure in April 2021 of the Group Supervisor’s conduct was not
protected under section 2302(b)(8) of the WPEA. Therefore, the Board lacks
jurisdiction over this claim.
The appellant failed to make nonfrivolous allegations that her EEO
activity in 2016 or 2017 was a contributing factor in the agency’s
2021 personnel actions.
On review, the appellant reraises her claim of retaliation for providing
information to a coworker to assist her in filing an EEO complaint in 2016 or
2017. PFR File, Tab 1 at 1; IAF, Tab 1 at 5, Tab 4 at 12-13. The administrative
judge found that the appellant failed to make nonfrivolous allegations that she
engaged in protected activity and, alternatively, failed to make nonfrivolous
allegations that any such activity was a contributing factor in her termination.
ID at 3-5. On review, the appellant raises several issues relevant to the issue of
contributing factor. PFR File, Tab 1 at 1-4, 6.
We agree with the administrative judge that the appellant failed to make
nonfrivolous allegations that the EEO activity was a contributing factor to the
agency’s termination action for the reasons discussed below.4 ID at 4-5. We
modify the initial decision to recognize that other alleged personnel actions—in
addition to her termination—are at issue: the appellant articulated in her OSC
complaint retaliatory agency actions including harassment, a performance
evaluation, a demotion, and a reassignment/move to another county, all which,
like her termination, allegedly occurred in 2021. IAF, Tab 4 at 5-6, 12-15.
As stated above, to establish Board jurisdiction over her IRA appeal, the
appellant must make nonfrivolous allegations that the protected activity was a
4 Under 5 U.S.C. § 2302(b)(9)(B), it is a protected activity to “testify[] for or otherwise
lawfully assist[] any individual in the exercise of any” “appeal, complaint, or grievance
right granted by any law, rule, or regulation.” Edwards v. Department of Labor ,
2022 MSPB 9, ¶ 26 (quoting 5 U.S.C. § 2302(b)(9)(A)-(B)). Because we discern no
basis to disturb the administrative judge’s determination that the appellant failed to
meet her jurisdictional burden regarding contributing factor, we need not address
whether the appellant’s alleged activity constituted protected activity.12
contributing factor in the agency’s decision to take a personnel action. Salerno,
123 M.S.P.R. 230, ¶ 5. To satisfy the contributing factor criterion, an appellant
need only raise a nonfrivolous allegation that the fact of, or content of, the
protected activity was one factor that tended to affect the personnel action in any
way. Id., ¶ 13. One way to establish contributing factor for jurisdictional
purposes is the knowledge/timing test, under which an appellant nonfrivolously
alleges that the activity was a contributing factor through circumstantial evidence,
such as evidence that the official taking the personnel action knew of the
protected activity and that the personnel action occurred within a period of time
such that a reasonable person could conclude that the activity was a contributing
factor in the personnel action. See 5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R.
230, ¶ 13. In addition to the knowledge/timing test, there are other possible ways
for an appellant to satisfy the contributing factor criterion. See Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶¶ 14-15 (2012).
The administrative judge found that the appellant failed to meet the timing
prong of the knowledge/timing test. ID at 4-5. She reasoned that the 2016 or
2017 EEO complaint was too remote to the appellant’s 2021 termination to satisfy
the test. Id. On review, the appellant reasserts that she satisfied the knowledge
prong of the knowledge/timing test but does not challenge the administrative
judge’s finding regarding timing. PFR File, Tab 1 at 1. The Board has held that
personnel actions taken within 1 to 2 years of the protected disclosure or activity
satisfy the timing prong of the knowledge/timing test, but those that take place
more than 2 years after the disclosure or activity are too remote to satisfy this
test. Pridgen v. Office of Management & Budget , 2022 MSPB 31, ¶ 63. We
discern no basis to disturb the administrative judge’s determination that the
approximately 4- to 5-year gap between the appellant’s alleged protected activity
and the agency’s action was too great to establish timing. IAF, Tab 4 at 12-15.
The administrative judge also found that the appellant failed to allege facts
apart from the knowledge/timing test that, if proven, would establish contributing13
factor. ID at 5-6. If an appellant fails to satisfy the knowledge/timing test, the
Board will consider other evidence, such as that pertaining to the strength or
weakness of the agency’s reasons for taking the personnel action, whether the
protected activity was personally directed at the proposing or deciding officials,
and whether these individuals had a desire or motive to retaliate against the
appellant. See Dorney, 117 M.S.P.R. 480, ¶ 15. Any weight given to a protected
activity, either alone or in combination with other factors, can satisfy the
contributing factor standard. Id. In her petition for review, the appellant raises
several challenges to the agency’s termination action that are relevant to the
Board’s inquiry under Dorney. PFR File, Tab 1 at 1; see id.
Among these challenges is the appellant’s contention that the subordinate
employee who lodged the complaint of misconduct that led to her termination had
lied to “[b]ring [her] down a peg.” PFR File, Tab 1 at 1. She further contends
that the agency conducted an inadequate investigation by failing to interview
witnesses she identified, and submits unsigned statements that she represents are
from former coworkers who indicate that they did not witness any misconduct by
her. Id. at 1, 3-4. She submitted a similar statement from a different coworker
below. IAF, Tab 4 at 22-23. She asserts that she signed a statement during the
investigation—which formed the basis of the agency’s charge of lack of candor—
under “stressful conditions.” PFR File, Tab 1 at 1; IAF, Tab 5 at 10. After
reviewing the evidence, we find that the agency’s stated reasons for terminating
the appellant were strong.5 IAF, Tab 7 at 13. Notably, its charges were,
5 The administrative judge indicated that the appellant was required to allege facts that
would establish that the agency’s stated reasons for taking the personnel actions were
weak and that the officials taking the alleged personnel actions had a desire to retaliate .
ID at 5-6; Dorney, 117 M.S.P.R. 480, ¶ 15. To the extent the administrative judge
suggested that the appellant was required to nonfrivolously allege specific elements of
the Dorney factors, this was in error. The factors articulated under Dorney are not
exhaustive or absolute. See Dorney, 117 M.S.P.R. 480, ¶ 15 (providing identified
factors as examples of the types of evidence that might be relevant to determining
contributing factor). Any error was harmless because, considering the relevant
evidence under the proper standard, we agree with the administrative judge that the
appellant failed to make nonfrivolous allegations of contributing factor.14
according to the appellant, prompted by a complaint from the appellant’s
subordinate. IAF, Tab 5 at 5, Tab 7 at 13. The appellant has not alleged that her
subordinate knew of the 2016 or 2017 EEO activity. IAF, Tab 5 at 5. Although
the appellant disputes the veracity of this subordinate’s complaint, her arguments
do not discredit the agency’s stated reasons for its actions. IAF, Tab 5 at 5; PFR
File, Tab 1 at 1.
Also, the appellant argues on review that the deciding official for the
agency’s termination action and the Cadre Management and Training Branch
Chief, who denied her appeal of her termination, were “involved” in her
coworker’s EEO case in 2016 or 2017. PFR File, Tab 1 at 1; IAF, Tab 5 at 7,
20-21, Tab 7 at 13, 15. However, she does not describe the extent of their
involvement, and it appears from the appellant’s pleadings that the EEO
complaint was directed at a different individual. PFR File, Tab 1 at 1; IAF, Tab 5
at 20-21. The appellant does not claim that this individual had any influence on
her termination.
Finally, the administrative judge properly concluded that the appellant has
failed to articulate any facts suggesting that the two named officials involved in
her termination had any desire or motive to retaliate against her for her peripheral
involvement in a coworker’s EEO complaint. The appellant alleges that she
provided a coworker with information about lesser discipline she received for the
same misconduct, which led to the coworker’s decision to file an EEO complaint
claiming disparate treatment. PFR File, Tab 1 at 1; IAF, Tab 5 at 19-20.
According to the appellant, her coworker listed her as a witness. PFR File, Tab 1
at 1; IAF, Tab 5 at 19, 22. She states that she was never contacted by EEO
investigators and did not have any further involvement in the complaint. PFR
File, Tab 1 at 1; IAF, Tab 5 at 20. Accordingly, we decline to disturb the
administrative judge’s conclusion that the appellant failed to make nonfrivolous
allegations that the EEO activity was a contributing factor in the agency’s15
termination action. ID at 6. We extend that finding to the agency’s other
personnel actions.
Accordingly, we affirm the dismissal of this appeal for lack of jurisdiction
as modified above.6
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
6 Because we lack jurisdiction over this appeal, we are unable to address the appellant’s
arguments on review that her termination was unwarranted and the agency’s
investigation into her alleged misconduct was flawed. PFR File, Tab 1 at 1; see
Schmittling v. Department of the Army , 219 F.3d 1332, 1337 (Fed. Cir. 2000)
(explaining that, absent jurisdiction, the Board lacks authority to decide the merits of an
appeal); Penna v. U.S. Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012 ) (finding that in
the absence of an otherwise appealable action, the Board lacked jurisdiction over claims
of harmful error, discrimination, and other alleged prohibited personnel practices).
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.16
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 obtain17
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 18
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. 19
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20 | Shepherd_CindyAT-1221-22-0244-W-1__Final_Order.pdf | 2024-04-11 | CINDY SHEPHERD v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-1221-22-0244-W-1, April 11, 2024 | AT-1221-22-0244-W-1 | NP |
1,817 | https://www.mspb.gov/decisions/nonprecedential/Montanez_DelirisDA-1221-20-0330-W-2_DA-1221-20-0421-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DELIRIS MONTANEZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBERS
DA-1221-20-0330-W-2
DA-1221-20-0421-W-2
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
eliris Montanez , El Paso, Texas, pro se.
Russell Wardlow , Esquire, and Sadie Herbert , Esquire, El Paso, 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 above-captioned individual right of action (IRA) appeals as settled.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On May 4 and July 1, 2020, the appellant filed two IRA appeals with the
Board, wherein she alleged that the agency took several personnel actions in
retaliation for her protected whistleblowing. Montanez v. Department of
Homeland Security , MSPB Docket No. DA-1221-20-0330-W-1, Initial Appeal
File (0330 IAF), Tab 1; Montanez v. Department of Homeland Security , MSPB
Docket No. DA-1221-20-0421-W-1, Initial Appeal File, Tab 1.
The administrative judge joined the appeals for adjudication and, after finding
jurisdiction, he convened a hearing. Montanez v. Department of Homeland
Security, MSPB Docket No. DA-1221-20-0330-W-2, Appeal File (0330 W-2 AF),
Tab 11, Initial Decision (0330 ID) at 1. During the hearing, the parties went off
the record and, when the hearing resumed, they informed the administrative judge
that they had resolved the dispute through a settlement agreement. Hearing
Record (HR); 0330 ID at 2. The settlement agreement, which was signed by the
appellant, her representative, and the agency’s settlement authority, was entered
into the record for enforcement. 0330 W-2 AF, Tab 8; 0330 ID at 2-3.2
Accordingly, the administrative judge issued an initial decision dismissing the
two appeals as settled. 0330 ID. In the initial decision, the administrative judge
notified the parties that the initial decision would become final on
October 14, 2021, unless a petition for review was filed by that date. Id. at 3.
The initial decision explained that, if the appellant believed that the settlement
agreement was unlawful, involuntary, or the result of fraud or mutual mistake,
she could request Board review by filing a petition for review. Id. at 3-4.
Approximately 10 months later, on July 10, 2022, the appellant filed a
petition for review.2 Montanez v. Department of Homeland Security , MSPB
Docket No. DA-1221-20-0330-W-2, Petition for Review (0330 PFR) File, Tab 1.
The Office of the Clerk of the Board (Clerk) issued an acknowledgment letter,
which informed the appellant that her petition for review appeared to be untimely
and advised her of the legal standard for establishing good cause for her untimely
filing. 0330 PFR File, Tab 2. The appellant filed a response to the Clerk’s order,
the agency filed a response to the petition for review, and the appellant filed a
reply. 0330 PFR File, Tabs 3, 5-6.
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 she believes it was unlawful, involuntary, or the result of
fraud or mutual mistake. Id. Even if invalidity was not apparent at the time of
settlement, the agreement must be set aside if it is subsequently shown by new
evidence that the agreement was tainted with invalidity by fraud or
misrepresentation. Id. However, the party challenging the validity of a
settlement agreement bears a heavy burden of showing a basis for
invalidation. Id.
2 The petition for review was untimely by approximately 9 months. Because we decide
this appeal on the merits, the Board does not address the timeliness issue.3
In her petition for review, the appellant asserts that she felt coerced
to accept the settlement by her legal counsel, who was later disbarred.
0330 PFR File, Tab 1 at 6. She challenges the monetary amount of the settlement
and the “stipulations” contained in the agreement, and she asserts that
she believes her attorney was “acting in bad faith and making under the table
deals with the agency in an attempt to settle the case as he had personal financial
needs.” Id. at 8, 10; 0330 PFR File, Tab 3 at 4-5. She also asserts that
the agency obstructed her right to obtain documents through the Freedom
of Information Act (FOIA) and, after obtaining the documents after she signed
the settlement agreement, she learned that the agency had omitted “material facts”
which would have changed the outcome of her appeal. 0330 PFR File, Tab 1 at 6-
7. Finally, the appellant asserts that her medical condition impaired her ability to
fully participate in the proceedings before the administrative judge. 0330 PFR
File, Tab 1 at 22, Tab 3 at 5, Tab 6 at 7-9. We address each argument below.
To establish that a settlement agreement resulted from fraud in the
inducement, the appellant must show that the agency knowingly concealed
a material fact or intentionally misled her. See Armstrong v. Department of
the Treasury, 115 M.S.P.R. 1, ¶¶ 6-7 (2010), aff’d, 438 F. App’x 903 (Fed.
Cir. 2011). The appellant asserts that the agency wrongfully withheld a report
by the Office of the Inspector General, which the appellant received through a
FOIA request after she entered into the settlement agreement.
0330 PFR File, Tab 1 at 6, 8, 23-27. However, the agency entered a copy of the
report into the record before the administrative judge, prior to the signature to
the settlement agreement, and therefore the document was not concealed from
her prior to the settlement. Compare 0330 IAF, Tab 9 at 96-100, with
0330 PFR File, Tab 1 at 23-27.
The appellant next argues that her attorney coerced her into settling her
case despite her alleged communications to him that she disagreed with the
“stipulations” contained in the agreement. 0330 PFR File, Tab 3 at 4, Tab 6 at 6.4
The appellant has not provided a copy of the alleged communications and she has
not identified on review which stipulations she disagrees with. It appears that the
appellant was present during the settlement negotiations, which the administrative
judge facilitated, and there is no evidence that she raised concerns about the
settlement terms with the administrative judge prior to signing the agreement.
HR; 0330 W-2 AF, Tab 8 at 6; cf. Washington v. Department of the Navy ,
101 M.S.P.R. 258, ¶¶ 17-18 (2006) (remanding to consider the validity of a
settlement agreement wherein the appellant was not present for settlement
negotiations and, with her petition for review, she provided letters with
her attorney calling into question whether the attorney had the authority to settle
her case). Although the appellant may have misunderstood the scope of a
particular provision in the agreement, her unilateral misunderstanding is not a
basis for setting aside the settlement. See Virgil v. U.S. Postal Service ,
75 M.S.P.R. 109, 113-14 (1997); see also Kowalczyk v. Department of the Army ,
44 M.S.P.R. 616, 622 (1990) (“The inadequate exchange of information between
the appellant and his attorney, without more, does not provide a basis for setting
aside the agreement or for making its terms unenforceable.”). Under these
circumstances, we conclude that the appellant has not shown that she was coerced
into the settlement. See McCullough v. U.S. Postal Service , 40 M.S.P.R. 476, 479
(1989) (“In order to establish that a settlement agreement was obtained through
coercion, a party must prove that: (1) One side involuntarily accepted the terms
of another; (2) the circumstances permitted no other alternative; and (3) the
circumstances were the result of the coercive acts of the opposite party.”), aff’d,
909 F.2d 1494 (Fed. Cir. 1990).
As to the appellant’s assertion that her attorney may have made “under the
table deals” with the agency because of his “personal financial needs,” 0330 PFR
File, Tab 3 at 5, she has submitted no evidence in support of this argument and it
is mere speculation. See Johnson v. Department of Agriculture , 98 M.S.P.R. 691,
¶ 8 (2005) (considering the appellant’s claim that his former attorney engaged in5
a consulting contract with the agency after the appellant agreed to a settlement
with the agency, and finding that it was insufficient to show that the settlement
was the result of impermissible coercion or duress which would warrant voiding
it). Although the appellant has asserted that her attorney was ineffective, that is
not a basis for setting aside the settlement agreement. See Moore v. U.S. Postal
Service, 52 M.S.P.R. 160, 163 (1991) (stating that a party is bound by the actions
of her chosen representative).
To the extent the appellant argues that her medical condition prevented her
from having the mental capacity to enter into a valid settlement agreement, we
find that the appellant has not proved such a claim. 0330 PFR File, Tab 1 at 22,
Tab 3 at 4, Tab 6 at 7-9. A party to a settlement agreement is presumed to have
full legal capacity to contract unless she is mentally disabled and the mental
disability is so severe that she cannot form the necessary intent. Parks v. U.S.
Postal Service, 113 M.S.P.R. 60, ¶ 8 (2010). The appellant has stated that her
medical condition, post traumatic stress disorder (PTSD), was exacerbated by the
agency on September 8, 2021, the date that she signed the settlement agreement.
0330 PFR File, Tab 3 at 4. She has submitted a June 30, 2022 letter from a nurse
practitioner, which states that the practitioner has treated the appellant since
May 2021 for major depressive disorder, PTSD, and generalized anxiety disorder.
0330 PFR File, Tab 1 at 22. The nurse practitioner opines that the appellant is
unable to represent herself because her PTSD causes “difficulty with memory,
concentration, focusing, sleep, energy and motivation,” and that her PTSD
“send[s] off alarms in her brain or exacerbate her symptoms as she tries to
represent herself.” 3 Id. However, the letter does not specifically address the
3 In a nonprecedential decision, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) held that the Board did not err in denying an appellant’s request to
appoint her counsel in an IRA appeal and held that such appellants do not have a
constitutional right to counsel. See Taylor v. Merit Systems Protection Board , 527 F.
App’x 970, 972-74 (Fed. Cir. 2013). The Board may rely on unpublished decisions
from the Federal Circuit to the extent it finds the reasoning persuasive, as we do here.
Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 10 n.1 (2016). 6
appellant’s mental capacity at the time she signed the settlement agreement. Id.
Notably, the administrative judge stated on the record that he assisted with
facilitating the settlement terms and that the parties entered into the agreement
voluntarily. See HR. The appellant has provided no evidence to find otherwise.
Accordingly, we find that the appellant has failed to prove that her mental state
precluded her from entering into a valid settlement agreement. See Parks,
113 M.S.P.R. 60, ¶¶ 8-10 (concluding that the appellant’s statement that that his
medical condition affected his capacity to enter into a settlement agreement was
insufficient to outweigh the statements of agency witnesses present during
negotiations attesting to his mental state).
Based on the foregoing, we deny the petition for review and affirm the
initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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 | Montanez_DelirisDA-1221-20-0330-W-2_DA-1221-20-0421-W-2_Final_Order.pdf | 2024-04-11 | DELIRIS MONTANEZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-1221-20-0330-W-2, April 11, 2024 | DA-1221-20-0330-W-2 | NP |
1,818 | https://www.mspb.gov/decisions/nonprecedential/Forsythe_JeffreySF-0752-20-0266-C-1_SF-0752-20-0266-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY FORSYTHE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBERS
SF-0752-20-0266-C-1
SF-0752-20-0266-X-1
DATE: April 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
hristopher H. Bonk , Esquire, Gary M. Gilbert , Esquire, and
Renn C. Fowler , Esquire, Silver Spring, Maryland, for the appellant.
Eric William Kaplan , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The agency has filed a petition for review and the appellant has filed a
cross petition for review of the compliance initial decision, which found that the
agency was in partial noncompliance with the parties’ settlement agreement in
Forsythe v. Department of Homeland Security , MSPB Docket No. SF-0752-20-
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
0266-I-1. While the administrative judge’s findings of partial compliance and
partial noncompliance were docketed as separate matters by the Clerk of the
Board, we JOIN the two matters under 5 C.F.R. § 1201.36 and address them both
in this decision.2 For the reasons we discuss below, we GRANT the agency’s
petition for review, VACATE the finding ordering the agency to recalculate the
appellant’s outside earnings using a different methodology, DENY the appellant’s
cross petition for review, and DISMISS the appellant’s petition for enforcement
as moot.
BACKGROUND
The appellant, who alleged that he was forced to resign from his position
with the agency in 2017, entered into a settlement agreement with the agency by
which he was returned to work in 2021, and was retroactively placed on
alternating 6-month periods of leave without pay (LWOP) and a pay status for the
3½ years between his resignation and his reinstatement. Forsythe v. Department
of Homeland Security , MSPB Docket No. SF-0752-20-0266-I-1, Initial Appeal
File (IAF), Tab 38 at 7-8. For the periods that he was in a pay status, which were
typically the last 6 months of each covered calendar year, the agency agreed to
pay the appellant “the appropriate amount of back pay, commensurate with the
[a]gency’s Management Directive No. 1100.55-10, Back Pay, and the [a]gency’s
Handbook to MD 1100.55-10.” Id.
To facilitate the computation of back pay, the appellant provided the
agency with his annual earnings statements from American Airlines, where he had
been working while separated from the agency. Forsythe v. Department of
Homeland Security , MSPB Docket No. SF-0752-20-0266-C-1, Compliance File
(CF), Tab 4 at 49, 64-66; Hearing Recording (HR) (testimony of the agency’s
2 Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite processing of the cases and will 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
requirement; therefore, we join them here.
3
subject matter expert). In calculating the amount of back pay for each 6-month
period provided for in the settlement agreement, the agency divided the
appellant’s annual earnings from American Airlines in half, and deducted that
amount from the amount that the appellant would have received had he been
employed by the agency during the same time period. HR (testimony of the
agency’s subject matter expert); CF, Tab 4 at 49. Based upon these calculations,
the agency determined that the appellant’s outside earnings were greater than the
amount he would have earned from the agency, and therefore, the appellant was
not entitled to back pay. HR (testimony of the agency’s subject matter expert);
CF, Tab 4 at 49. The agency notified the appellant of its back pay calculation,
and the parties engaged in several communications in which the appellant
challenged the appropriateness of the back pay calculation. CF, Tab 1 at 38-45.
The appellant then filed a petition for enforcement with the Board,
challenging the agency’s calculation of his back pay. Id. at 8-10. Among other
things, the appellant argued for the first time that by splitting his annual earnings
in half, the agency had unfairly distorted his outside earnings, because
he received his bonuses at American Airlines in the first half of the year,
which coincided with the periods he was in LWOP status, and not the periods
during which he was in pay status. Id. Thus, the appellant asserted that the
agency should have used a paycheck-to-paycheck comparison in order to avoid a
detrimental distortion. Id.
After holding a hearing, the administrative judge issued a compliance
initial decision finding that the agency was in partial noncompliance with the
settlement agreement. CF, Tab 35, Compliance Initial Decision (CID). First,
the administrative judge found that the agency’s methodology for calculating the
appellant’s outside earnings, i.e., splitting the annual earnings in half, was
appropriate given that it was the appellant who provided the agency with his
annual earnings statements, and it was reasonable for the agency to use the
documentation it had in its calculations. CID at 8-10. Furthermore,
4
the administrative judge noted that the appellant did not challenge the agency’s
methodology until he filed the petition for enforcement, and did not provide the
agency with his individual paystubs until his prehearing submissions. CID at 10.
Thus, the administrative judge found that the agency did not breach the settlement
agreement in its calculations of the appellant’s outside earnings. Id.
Nevertheless, she found that a “correction [was] in order,” because the agency’s
subject matter expert testified that he would have used the appellant’s more
nuanced earnings information had he had access to it. Id.
Then, the administrative judge considered the appellant’s other arguments,
and found that the appellant did not establish that the agency breached the
settlement agreement when it did not include performance-based pay increases,
other cash awards, overtime, per diem allowances, and interest in its calculation
of the appellant’s back pay. CID at 17-24. She also denied the appellant’s claim
that the agency breached the settlement agreement by improperly reducing his
night differential pay by using a sample year, i.e., the year prior to his
resignation, which was not a fair representation of his typical schedule because
he had taken a significant amount of LWOP that year. CID at 12-13. However,
the administrative judge did find that the agency breached the settlement
agreement when it failed to properly calculate back pay for two pay periods (one
in 2019 and one in 2020), and failed to incorporate performance-based cash
bonuses into its back pay calculation. CID at 10-12, 15-16. Thus,
the administrative judge ordered the agency to recalculate the appellant’s outside
earnings, pay him the appropriate amount for the two pay periods, pay him
performance-based cash bonuses, and based on those calculations, assess whether
the appellant was entitled to receive automatic 1% agency contributions to his
Thrift Savings Plan. CID at 28.
The agency filed a notice of partial compliance and a petition for review,
stating that it has complied with all of the actions ordered by the administrative
judge except issuing the appellant back pay based on the recalculation of his
5
outside earnings, arguing that it should not be required to recalculate his outside
earnings because it did not breach the settlement agreement.3 Petition for Review
(PFR) File, Tab 1 at 4-9. The appellant has filed an opposition to the agency’s
petition for review, arguing, in part, that it was the agency that was responsible
for calculating his back pay, and thus, it could have directed the appellant to
provide more detailed information. PFR File, Tab 3 at 7, 14. The appellant has
also filed a cross petition for review, arguing, among other things, that the agency
breached the settlement agreement when it improperly calculated his outside
earnings, excluded overtime and per diem allowances from his back pay, and
improperly reduced his night differential pay by using a sample year that was not
representative of his regular schedule. PFR File, Tab 3 at 12-23. The agency has
filed a reply to the appellant’s response in opposition to its petition for review,
PFR File, Tab 5, as well as an opposition to the appellant’s cross petition for
review, PFR File, Tab 6.4
DISCUSSION OF ARGUMENTS ON REVIEW
The agency’s petition for review is granted because the administrative judge erred
in ordering the agency to recalculate the appellant’s outside earnings.
The agency argues that the administrative judge erred in ordering a
recalculation of the appellant’s outside earnings based on a paycheck-to-paycheck
comparison because it did not breach the settlement agreement by using its
original methodology. PFR File, Tab 1 at 4-9. Conversely, in his cross petition
for review, the appellant argues that the agency breached the settlement
3 The agency does not dispute the administrative judge’s findings regarding the two pay
periods and the performance-based cash bonuses. PFR File, Tab 1 at 9-11.
4 The administrative judge’s findings of noncompliance were docketed by the Clerk of
the Board as MSPB Docket No. SF-0752-20-0266-X-1. Forsythe v. Department of
Homeland Security , MSPB Docket No. SF-0752-20-0266-X-1, Compliance Referral File
(CRF), Tab 2. The appellant’s arguments on review challenging the administrative
judge’s findings of compliance retain their original docket number, MSPB Docket
No. SF-0752-20-0266-C-1. PFR File, Tab 2.
6
agreement by failing to use a paycheck-to-paycheck comparison in order to
calculate his outside earnings. PFR File, Tab 3 at 12-14.
The administrative judge correctly found that the agency did not breach the
settlement agreement by using its original methodology to calculate the
appellant’s outside earnings because such methodology was reasonable based on
the documentation provided by the appellant. ID at 8-10. The Board has found
that an agency cannot be found to be noncompliant when it is the appellant who is
the source of that noncompliance. See Coe v. U.S. Postal Service , 101 M.S.P.R.
575, ¶¶ 5, 13 (finding the agency in compliance with a settlement agreement
when it was the appellant who caused the delay in the processing his back pay
award because he failed to sign the necessary paperwork) aff’d, 208 F. App’x.
932 (Fed. Cir. 2006) ; Boyd v. Department of Veterans Affairs , 93 M.S.P.R. 386,
¶¶ 5-7 (2003) (finding the agency in compliance with the Board’s orders because
it was the appellant who was responsible for the agency’s delay in her back pay
award). Here, the appellant provided the agency with his annual earnings
statements, and it was reasonable for the agency to use the appellant’s
documentation to calculate the appellant’s outside earnings. HR (testimony of the
agency’s subject matter expert); CF, Tab 4 at 39-45. Furthermore, the appellant
did not challenge the agency’s methodology for calculating his outside earnings
until he filed his petition for enforcement, despite engaging in a lengthy back-
and-forth communication with the agency regarding his numerous objections to
the back pay calculation. CF, Tab 1 at 38-45. Indeed, the appellant did not
provide the agency with his individual paystubs until the prehearing submissions,
a necessity for the agency to complete the paycheck-to-paycheck comparison that
the appellant was demanding. CF, Tab 18 at 76-118.
The appellant has provided no explanation as to why he did not provide the
agency with the information to calculate his outside earnings in the manner he
believed appropriate. Instead, the appellant claims that it was the responsibility
of the agency to calculate his back pay, and thus, the agency could have directed
7
him to produce more detailed documentation. PFR File, Tab 3 at 7, 14. But the
agency would have had no reason to know that the bonus schedule of American
Airlines coincided with the periods the appellant was in LWOP status, and thus,
the onus was on the appellant to provide the agency with the information that the
appellant deemed necessary.
In sum, we find that the agency did not violate the settlement agreement by
calculating the appellant’s outside earnings using its original methodology. Thus,
it was improper for the administrative judge to order a correction. ID at 10, 28.
Accordingly, we vacate the order requiring the agency to recalculate the
appellant’s outside earnings.
The appellant’s cross petition for review is denied because he has provided no
basis to disturb the administrative judge’s findings.
In his cross petition for review, the appellant reiterates his argument that
the agency breached the settlement agreement by excluding overtime and per
diem expenses from his back pay, and by using an unfair sample year in its
calculation of his night differential pay to improperly reduce the total amount of
back pay. PFR File, Tab 3 at 14-23. Because the agency’s actions are not
contrary to the terms of the settlement agreement, the administrative judge
correctly found that the agency did not breach it. CID at 12-13, 17-24
A settlement agreement is a contract, the interpretation of which is a matter
of law. Greco v. Department of the Army , 852 F.2d 558, 560 (Fed. Cir. 1988).
Under the general principles of settlement construction, the words of the
agreement itself are of paramount importance. Kitt v. Department of the Navy ,
116 M.S.P.R. 680, ¶ 5 (2011). In construing the terms of a settlement agreement,
the Board examines the four corners of the agreement to determine the parties’
intent. Id. The parties are bound by the terms of their settlement. Id. Here,
the relevant portion of the settlement agreement states that “the [a]gency will pay
[the a]ppellant the appropriate amount of back pay, commensurate with the
8
[a]gency’s Management Directive No. 1100.55-10, Back Pay, and the [a]gency’s
Handbook to MD 1100.55-10.” IAF, Tab 38 at 7-8.
The Handbook sets forth in detail the items that must be included in
computing back pay, including any gross pay, certain types of compensation
increases, and certain types of incentives, i.e., retention incentives. CF,
Tab 4 at 29-30. It does not include any reference to overtime pay, per diem
allowance,5 or night differential pay. Id. In fact, no section of the Management
Directive or the Handbook requires the agency to include any of these items in its
back pay calculation. Thus, the agency’s exclusion of overtime pay and per diem
allowances, as well as its calculation of the night differential pay,
is “commensurate” with its Handbook and Management Directive, because the
Handbook and Management Directive are silent on these topics. Accordingly, the
agency’s actions were commensurate with both the Handbook and Management
Directive, and therefore, the agency did not breach the terms of the parties’
settlement agreement.
In conclusion, the agency abided by the terms negotiated by the parties
because its actions are within the parameters of the agency’s Management
Directive and Handbook.6 Thus, as correctly found by the administrative judge,
5 We fail to see how a per diem allowance, which is predicated on an employee’s travel
as it is a reimbursement for anticipated travel expenses, could be part of the agency’s
back pay calculation, as the appellant was not travelling during the relevant time
periods.
6 The appellant also argues that the agency breached the settlement agreement because
it did not use the same standard in calculating his back pay and his outside earnings.
PFR File, Tab 3 at 14-17. In other words, the appellant argues that because the agency
excluded certain types of pay from its back pay calculations, i.e., bonuses, overtime,
and per diem, then the agency should also have excluded those categories from his
outside earnings. Id. at 16-17. As correctly noted by the administrative judge,
CID at 7 n.2, the Handbook sets forth different standards for computing back pay and
computing outside earnings, CF, Tab 4 at 29-30. Thus, the agency’s use of two
different standards is consistent with the Management Directive and the Handbook, and
does not constitute a breach of the settlement agreement.
9
the appellant failed to establish that the agency breached the settlement agreement
with respect to these issues. CID at 12-13, 17-24.
Because the agency has produced evidence that it complied with the remaining
ordered actions, we dismiss the petition for enforcement as moot.
In its notification of partial compliance, the agency stated that it had
“complied with all actions except for the issuance of a payment” which would be
required based on the recalculation of the appellant’s outside earnings. PFR File,
Tab 1 at 4. The agency attached a sworn statement from a subject matter expert
explaining that she recalculated the appellant’s back pay in accordance with the
compliance initial decision, i.e., correcting the two pay periods and including
performance-based cash bonuses. Id. at 13-16. The agency also included
documentation showing the updated back pay recalculation with the two corrected
pay periods. Id. at 17-25. The appellant does not dispute the agency’s
calculation of the two pay periods or the performance-based cash bonuses,7
disputing instead the agency’s estimation of his back pay based on the
recalculated outside earnings. Forsythe v. Department of Homeland Security ,
MSPB Docket No. SF-0752-20-0266-X-1, Compliance Referral File, Tab 3.
Accordingly, because we have vacated the finding requiring the agency to
recalculate the appellant’s outside earnings, there is no further relief that the
Board can provide in the context of the appellant’s claims in these compliance
proceedings. Thus, we must dismiss the appellant’s petition for enforcement as
moot. See Allen v. Department of Veterans Affairs , 110 M.S.P.R. 111, ¶ 3 (2008)
(recognizing that a petition for enforcement is moot when there is no effective
remedy that the Board can provide); Adair v. U.S. Postal Service , 69 M.S.P.R.
7 While we acknowledge that the appellant asserted that his ability to respond to the
notice of compliance was “limited” because the agency did not attach documentation
related to its calculation of the performance-based cash awards, he does not dispute the
statements regarding the calculation of the monetary amount of the awards. CRF, Tab 3
at 4-10.
10
431, 435 (1996) (concluding that a matter is moot when the Board can grant no
meaningful or effective relief).
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 compliance initial decision on your appeal.
NOTICE OF APPEAL RIGHTS8
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 compliance 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.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.
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. | Forsythe_JeffreySF-0752-20-0266-C-1_SF-0752-20-0266-X-1_Final_Order.pdf | 2024-04-11 | JEFFREY FORSYTHE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-20-, April 11, 2024 | SF-0752-20- | NP |
1,819 | https://www.mspb.gov/decisions/nonprecedential/Omerbashich_MensurSF-3330-22-0378-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MENSUR OMERBASHICH,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION,
Agency.DOCKET NUMBER
SF-3330-22-0378-I-1
DATE: April 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mensur Omerbashich , Sarajevo, Bosnia and Herzegovina, pro se.
Janice Fried , Moffett Field, 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 a 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
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
On May 17, 2022, the appellant filed an appeal with the Board asserting
that he was not selected for a position for which he applied, and that in the
application process, the agency committed a prohibited personnel practice when it
publicly listed only 3 of the 12 selection criteria, leaving 75% of the selection
criteria a “secret.” Initial Appeal File (IAF), Tab 1 at 5, Tab 3 at 3. In an
acknowledgment order, the administrative judge explained that the Board has
jurisdiction over a nonselection claim only in the following limited
circumstances: when such a claim is raised in conjunction with an employment
practices claim under 5 C.F.R. § 300.104(a), when it is raised within the context
of a suitability determination, and when an appellant alleges that the nonselection
was made in reprisal for whistleblowing under the whistleblower protection
statutes, the product of discrimination based on uniformed service under the
Uniformed Services Employment and Reemployment Rights Act (USERRA), or
violative of his veterans’ preference rights pursuant to the Veterans Employment
Opportunity Act of 1998 (VEOA). IAF, Tab 2 at 2-5. The administrative judge
ordered the appellant to file evidence and argument clarifying which of the above
situations applied to his allegations. Id. at 5. In response, the appellant asserted2
that the agency’s decision to publish only 3 of the 12 selection criteria constituted
an “irrational employment practice or a suitability action.” IAF, Tab 3 at 3. The
administrative judge then issued a supplemental jurisdictional order informing the
appellant of what he must assert to allege the Board’s jurisdiction over an
employment practices claim. IAF, Tab 4.
Following the supplemental jurisdictional order, the appellant did not
address his jurisdictional burden but, rather, requested on several occasions that
the administrative judge recuse himself for failing to find that the Board has
jurisdiction over his claims and that the full Board decide his appeal.2 He also
objected to the administrative judge’s “involvement” in the appeal and requested
that the appeal be transferred to the Washington Regional Office. IAF, Tab 5
at 3, Tab 7 at 3, Tab 8 at 3. The administrative judge considered the appellant’s
requests for recusal but found that the appellant’s allegations did not meet the
standard for disqualification. He also declined to transfer the appeal to the
Washington Regional Office because the appellant failed to meet the regulatory
requirements for such a transfer and the request was otherwise unsupported. IAF,
Tab 6 at 1-2, Tab 9 at 1-2.
Thereafter, the administrative judge provided the appellant with a third
opportunity to nonfrivolously allege the Board’s jurisdiction over his appeal.
IAF, Tab 9 at 2-5. The appellant did not substantively respond to the third
jurisdictional order but, rather, continued to argue that the administrative judge
should recuse himself and that the appeal should be transferred to the Washington
Regional Office. IAF, Tab 10.
2 The appellant also referenced a separate appeal he has before the Board, Omerbashich
v. Department of the Interior , MSPB Docket No. DC-3443-19-0540-I-1. That appeal
was adjudicated separately and is currently pending before the Board on review. The
appellant also requested that the instant appeal “remain[] open” until his other appeal
has been ruled on by the full Board. IAF, Tab 5 at 3. The administrative judge denied
that request after reasoning that the appellant declined to “adequately explain how the
appeals are related.” IAF, Tab 6 at 2-3. 3
On June 24, 2022, the administrative judge issued an initial decision on the
written record.3 IAF, Tab 11, Initial Decision (ID). After reiterating his findings
regarding the appellant’s renewed requests for recusal and the transfer of his
appeal and informing the appellant of his right to file a separate appeal to address
potential USERRA, VEOA, or whistleblower reprisal claims, the administrative
judge discussed the appellant’s nonselection within the context of an employment
practices claim, but ultimately found that the appellant failed to make
nonfrivolous allegations of Board jurisdiction in that regard. ID at 5-9.
Accordingly, he dismissed the appeal for lack of jurisdiction. ID at 1, 10.
The appellant has filed a petition for review of the initial decision, stating
that he wants to withdraw his appeal due to the administrative judge’s lack of
authority to decide his case. Petition for Review (PFR) File, Tab 1 at 3. He also
asserts that the initial decision is “obtuse.” Id. He submits a supplement to his
petition for review detailing his communications with the Office of the Clerk of
the Board regarding his submissions on review. PFR File, Tab 2. The agency has
not responded to the appellant’s submissions.
DISCUSSION OF ARGUMENTS ON REVIEW
We construe the appellant’s submissions on review as a petition for review of the
initial decision.
Following the appellant’s filing of a pleading entitled “Petition for
Review” in which he expressed his desire to withdraw his appeal, the Office of
the Clerk of the Board contacted him to clarify the intent of his submission. Id. at
5-6. In response, the appellant asserts that “[r]egardless [of] what heading” his
pleading was filed under, he “stopped recognizing” the administrative judge’s
authority prior to the issuance of the initial decision. Id. at 5. Thus, the
appellant’s intent to withdraw his appeal is predicated on his belief that the
administrative judge lacked authority in this matter to decide his appeal.4
However, he has not provided any argument or evidence to support that position,
3 The appellant did not request a hearing in this matter. IAF, Tab 1 at 2.4
and the Board’s regulations explicitly provide for an administrative judge’s
authority to issue an initial decision. See 5 C.F.R. § 1201.41(b)(15).
Further, a voluntary withdrawal of an appeal must be by clear, unequivocal,
and decisive action. Cason v. Department of the Army , 118 M.S.P.R. 58, ¶ 5
(2012); Bass v. U.S. Postal Service , 96 M.S.P.R. 683, ¶ 6 (2004). Given that the
appellant’s request to withdraw his appeal is conditioned on his unproven and
incorrect belief that the administrative judge lacked the authority to decide his
appeal, we cannot find that his withdrawal request is unequivocal. Based on the
foregoing, we construe the appellant’s submissions on review as a petition for
review of the initial decision, which we address on the merits below.
The appellant has not provided a basis to disturb the initial decision.
To reiterate, the appellant alleged in his appeal that he was not selected for
a position for which he applied, and that the agency improperly publicized only 3
of the 12 selection criteria. IAF, Tab 1 at 5. As noted, in the initial decision, the
administrative judge explained that one of the limited bases upon which the
Board may consider a nonselection claim is when an appellant asserts that an
employment practice applied to him by the Office of Personnel Management
(OPM) violates a basic requirement in 5 C.F.R. § 300.103. ID at 7-8; see
5 C.F.R. §§ 300.104(a), 1201.3(a)(7). Under such circumstances, the Board has
jurisdiction under 5 C.F.R. § 300.104(a) when the following 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).
4 Nothing in the appellant’s pleadings below or on review suggest that his position on
the administrative judge’s authority to decide his appeal is related to the issues
discussed in the U.S. Supreme Court’s decision in Lucia v. Securities and Exchange
Commission, 585 U.S. 237 (2018 ). See McClenning v. Department of the Army ,
2022 MSPB 3, ¶¶ 5-25.5
In his appeal, the appellant alleged that the agency’s failure to publicize all
of the selection criteria constitutes an employment practice that violates the
requirements for employment practices under 5 C.F.R. § 300.103(b) because “a
rational relationship between performance in the position to be filled and the said
employment practice no longer exists.” IAF, Tab 3 at 3. In the initial decision,
the administrative judge concluded that these allegations failed to adequately
explain how his nonselection involved an appealable employment practice or to
adequately explain OPM’s involvement in administering a purported employment
practice. ID at 9. As such, he found that the appellant failed to nonfrivolously
allege the Board’s jurisdiction over the appeal. ID at 10.
The appellant does not challenge these findings on review, and we discern
no reason to disturb them. As a threshold matter, the appellant has failed to
nonfrivolously allege that his appeal concerns an appealable employment
practice. Although the term “employment practices” includes the development
and use of, among other things, qualification standards and measurement
instruments, see Mapstone v. Department of the Interior , 110 M.S.P.R. 122, ¶ 8
(2008), the appellant has not alleged that the selection criteria themselves
constitute an appealable employment practice, only the agency’s alleged failure to
adequately publicize them. IAF, Tabs 1, 3; PFR File Tabs 1-2. Additionally,
while we acknowledge that an agency’s misapplication of a valid OPM
requirement may constitute an employment practice, that is typically only the
case when those requirements concern merit considerations, rather than
procedural decisions. See Mapstone, 110 M.S.P.R. 122, ¶ 8; Maule v. Office of
Personnel Management , 40 M.S.P.R. 388, 393-94, aff’d, 892 F.2d 1050 (Fed. Cir.
1989) (Table). Here, the OPM requirement implicated by the appellant’s
allegations is that a vacancy announcement include qualification requirements,
including the knowledge, skills, and abilities or competencies required of
applicants, see 5 C.F.R. § 330.104 (setting forth the requirements for vacancy6
announcements), which the appellant asserts the agency failed to do.5 We find
such a requirement to be procedural in nature because it is not related to the
propriety of a selection—which would be a merits determination—but is a tool or
procedure for filling a vacancy.
Nonetheless, even if the appellant had nonfrivolously alleged an appealable
employment practice, he has still not nonfrivolously alleged that such an
employment practice fails to meet the basic requirements for employment
practices set forth in 5 C.F.R. § 300.103. See Sauser, 113 M.S.P.R. 403, ¶ 6. In
that regard, we agree with the administrative judge that the appellant’s allegation
that “a rational relationship between performance in the position to be filled and
the said employment practice no longer exists” is a bare allegation that merely
restates the jurisdictional standards for an employment practices appeal and,
therefore, does not constitute a nonfrivolous allegation of jurisdiction. ID at 9;
IAF, Tab 3 at 3; see 5 C.F.R. § 1201.4(s)(1) (explaining that a nonfrivolous
allegation is more than conclusory). Accordingly, we deny the appellant’s
petition for review and affirm the initial decision’s dismissal of the appeal for
lack of jurisdiction.
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
5 Although the appellant submitted portions of his on-line application for the position at
issue, the vacancy announcement itself is not in the record. Thus, we cannot review the
sections of the vacancy announcement that usually provide information about the
position the agency is seeking to fill.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
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.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. 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 | Omerbashich_MensurSF-3330-22-0378-I-1__Final_Order.pdf | 2024-04-10 | MENSUR OMERBASHICH v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, MSPB Docket No. SF-3330-22-0378-I-1, April 10, 2024 | SF-3330-22-0378-I-1 | NP |
1,820 | https://www.mspb.gov/decisions/nonprecedential/Whitehead_DustinPH-0752-23-0001-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DUSTIN WHITEHEAD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-23-0001-I-1
DATE: April 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elizabeth Matta , Esquire, and Amanda J. Moreno , Esquire, Houston, Texas,
for the appellant.
Dane R. Roper , Esquire, and Andrew E. Zleit , Esquire, St. Louis, Missouri,
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 appellant’s removal because the agency failed to prove its charge.
On petition for review, the agency argues that the administrative judge erred in
interpreting the charge, that any ambiguity in the agency’s factual specification
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 not fatal to the charge because the appellant was not prejudiced, and that the
agency ultimately proved its charge of “refusal to take drug test.” 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).
ORDER
¶2We ORDER the agency to cancel the removal and to restore the appellant
effective September 2, 2022. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶3We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,2
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.
¶4We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶5No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶6For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees3
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 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
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. | Whitehead_DustinPH-0752-23-0001-I-1__Final_Order.pdf | 2024-04-10 | DUSTIN WHITEHEAD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-23-0001-I-1, April 10, 2024 | PH-0752-23-0001-I-1 | NP |
1,821 | https://www.mspb.gov/decisions/nonprecedential/Stucker_Joanne_M_PH-0752-18-0227-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOANNE M. STUCKER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-18-0227-I-1
DATE: April 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kimberly D. Borland , Esquire, Wilkes-Barre, Pennsylvania, for the
appellant.
M. Creston Rice , Esquire, Bedford, Massachusetts, 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 termination appeal for lack of jurisdiction. On petition for review,
the appellant reasserts that she was entitled to chapter 75 and regulatory appeal
rights because she met the definition of employee under 5 U.S.C. § 7511(a)(1)(C)
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).
(i); her termination was without merit; and the agency committed harmful
procedural error by denying her minimum due process. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to address the appellant’s challenge to the U.S. Court of
Appeals for the Federal Circuit’s interpretation of 5 U.S.C. § 7511(a)(1)(C)(i), we
AFFIRM the initial decision.
The appellant recognizes that, in Forest v. Merit Systems Protection Board ,
47 F.3d 409, 411-12 (Fed. Cir. 1995), the Federal Circuit held that
section 7511(a)(1)(C)(i) applies only to initial appointments pending conversion
to the competitive service. Petition for Review (PFR) File, Tab 1 at 7. Under
this provision, an individual in the excepted service (other than a preference
eligible) “who is not serving a probationary or trial period under an initial
appointment pending conversion to the competitive service” has a right to appeal
to the Board. 5 U.S.C. § 7511(a)(1)(C)(i). The court in Forest interpreted this
language to find that “[s]ection 7511(a)(1)(C)(i) covers only excepted service
employees serving ‘under an initial appointment pending conversion to the
competitive service,’ provided they are not serving a probationary or trial period
under such an appointment.” Forest, 47 F.3d at 412. The appellant reargues that2
the Board should not rely on the Federal Circuit’s construction of the statutory
provision because it was overly restrictive and not in accordance with the plain
language of the statute. Id. at 6-8. Specifically, she asserts that “[i]nstead of
giving the plain meaning to the words of the statute in the order it was written,
the [c]ourt juxtaposed two phrases and added the qualifier ‘provided[,]’
completely changing the plain language of the statute.” She reasserts that,
instead, it is more appropriate to interpret section 7511(a)(1)(C)(i) as applying to
excepted-service positions generally, such as hers. Id. at 6-7.
The appellant’s argument regarding the court’s interpretation of section
7511(a)(1)(C)(i) is well-taken. However, the Board is bound by the Federal
Circuit’s decision in Forest. See Hoover v. Department of the Navy , 57 M.S.P.R.
545, 552 (1993); Fairall v. Veterans Administration , 33 M.S.P.R. 33, aff’d,
844 F.2d 775 (Fed. Cir. 1987) (finding that decisions of the Federal Circuit are
controlling authority for the Board). The appellant has not shown that the Federal
Circuit has reversed or otherwise modified its decision in Forest, nor has she
explained why that decision is not controlling precedent in this case. It is
undisputed that the appellant was not serving an initial appointment pending
conversion to the competitive service. PFR File, Tab 1 at 5; Initial Appeal File
(IAF), Tab 6 at 11. Thus, when applying the Federal Circuit’s interpretation of
section 7511(a)(1)(C)(i), the appellant did not meet the definition of employee
under that provision. See Forest, 47 F.3d at 411-12. Accordingly, the appellant
has not provided a basis for disturbing the administrative judge’s finding that she
lacked chapter 75 appeal rights. IAF, Tab 11, Initial Decision at 4.
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 | Stucker_Joanne_M_PH-0752-18-0227-I-1__Final_Order.pdf | 2024-04-10 | JOANNE M. STUCKER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-18-0227-I-1, April 10, 2024 | PH-0752-18-0227-I-1 | NP |
1,822 | https://www.mspb.gov/decisions/nonprecedential/Kirkbride_BrianAT-0752-22-0475-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN KIRKBRIDE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-22-0475-I-1
DATE: April 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Shane Robertson , Esquire, Dallas, Texas, for the appellant.
Dana C Heck , Esquire, Saint Petersburg, Florida, for the agency
Teri Walker , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal challenging the agency’s cancellation of his promotion 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
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).
Atlanta Regional Office for further adjudication in accordance with this Remand
Order.
BACKGROUND
¶2On August 27, 2021, the agency’s Facilities Management Services (FMS)
posted a vacancy announcement for a GS-12 Lead Biomedical Equipment Support
Specialist (Lead BESS) at the Orlando Veterans Affairs Healthcare System
(VAHS). Initial Appeal File (IAF), Tab 9 at 131-43. The appellant, who was
working as a GS-11 Biomedical Equipment Support Specialist at the Orlando
VAHS, applied for the Lead BESS position and was selected. Id. at 102. The
appellant confirmed to the agency’s Human Resources (HR) Specialist that he
accepted the promotion, he completed the Declaration for Federal Employment,
Optional Form 306, for the position, and he received an official job offer from the
agency that confirmed his promotion to Lead BESS with an effective date of
November 7, 2021, and a reporting date of November 8, 2021. Id. at 127-28;
IAF, Tab 21 at 7-8, Tab 28-1 (testimony of the appellant).
¶3Meanwhile, the applicants who had not been selected for the Lead
BESS position complained of unfair hiring practices to the Orlando VAHS
Medical Center Director and the Associate Medical Center Director.
IAF, Tab 9 at 107-08, 116-17. As a result of the allegations, the Associate
Medical Center Director initiated a fact-finding investigation and directed the
FMS Chief “to delay the effect[ive] date of the [appellant’s] promotion action”
pending the outcome of the investigation. Id. at 107-08, 113. However, no
one within the agency instructed the HR Specialist, who was processing the
appellant’s promotion, to delay the action. Id. at 97; IAF, Tab 28-2 (testimony of
the HR Specialist). Therefore, the HR Specialist processed the appellant’s
promotion, which was effective November 7, 2021, and confirmed that the
appellant reported for duty as the Lead BESS on November 8, 2021. IAF, Tab 9
at 97, 102, Tab 21 at 7-8. 2
¶4On January 13, 2022, the Associate Medical Center Director learned that the
appellant had “received his promotion both in title and pay.” IAF, Tab 9 at 95-
96. In response, she directed the FMS Chief to “ensure that the promotion is set
aside” and to inform the appellant that “the promotion was in error.” Id. at 96.
The FMS Chief then issued the appellant a letter, dated January 18, 2022, stating
that his promotion to the GS-12 Lead BESS position was processed in error and
that it must be cancelled, and that the appellant owed a debt to the agency for the
overpayment caused by his receipt of the higher level of pay since November 7,
2021. Id. at 94. The HR Specialist processed the cancellation of the appellant’s
promotion on or about January 24, 2022.2 Id. at 45; IAF, Tab 21 at 17-18.
¶5The appellant filed a Board appeal, challenging the agency’s cancellation of
his promotion. IAF, Tab 1. After finding that the appellant raised a nonfrivolous
allegation of jurisdiction, IAF, Tab 13, the administrative judge held a
jurisdictional hearing, issued an initial decision finding that the appellant did not
prove the Board’s jurisdiction by preponderant evidence, and dismissed the
appeal for lack of jurisdiction, IAF, Tab 30, Initial Decision (ID). The appellant
filed a petition for review arguing, among other things, that he established
jurisdiction because his promotion actually occurred and he performed Lead
BESS duties before the agency cancelled his promotion. Petition for Review
(PFR) File, Tab 6 at 5-27. The agency responded in opposition to the appellant’s
petition for review. PFR File, Tab 8.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6The 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). The appellant has the
2 In May 2022, the FMS Chief informed the appellant that his appointment to the Lead
BESS position would be rescinded and the vacancy re-announced as a result of the
findings of the Administrative Investigative Board. IAF, Tab 9 at 18-19. As of the
hearing, the agency had not selected another Lead BESS. IAF, Tab 28-4 (testimony of
the appellant’s first-line supervisor).3
burden of establishing the Board’s jurisdiction by a preponderance of the
evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶7The general rule is that a reduction in an employee’s grade level or rate of
basic pay is appealable to the Board. Deida v. Department of the Navy ,
110 M.S.P.R. 408, ¶¶ 9-10 (2009); see 5 U.S.C. §§ 7512(3), (4). To establish a
prima facie case of jurisdiction over the agency’s cancellation of his promotion as
an appealable reduction in grade or basic pay, the appellant must show that: (1)
the promotion actually occurred, that is, that it was approved by an authorized
official aware that he or she was making a decision to promote the appellant;
(2) he took some action denoting acceptance of the promotion; and (3) the
promotion was not revoked before the appellant actually performed in the
position.3 Deida, 110 M.S.P.R. 408, ¶¶ 14, 16. As the administrative judge
noted, neither party disputes that the appellant took action denoting acceptance of
the promotion. ID at 9. Therefore, the issue is whether the appellant’s promotion
actually occurred, and if it did, whether the promotion was revoked before the
appellant performed in the position. As set forth in detail below, we find that the
appellant was actually promoted to the GS-12 Lead BESS position and performed
in that position before the agency cancelled the promotion. Accordingly, we find
that the appellant has established a prima facie case of jurisdiction.
3 At the prehearing conference, the appellant requested that the administrative judge
consider the jurisdictional standard set forth in Levy v. Department of Labor ,
118 M.S.P.R. 619, ¶ 10 (2012), which held that, when the effective date precedes the
date which the appellant technically enters onto duty, the appellant must show that:
(1) the promotion actually occurred; (2) the appellant took some action denoting
acceptance of the position; and (3) the promotion was not revoked before it became
effective. IAF, Tab 24 at 2-3. The administrative judge considered the appellant’s
request but found that the modified standard set forth in Levy was based on a “unique
set of facts” that were not present here. IAF, Tab 24 at 2-3. On review, the appellant
challenges the administrative judge’s declination to use the modified jurisdictional
standard set forth in Levy. PFR File, Tab 6 at 23-24. We agree with the administrative
judge that the modified standard in Levy does not apply here because the appellant
reported to duty before the agency cancelled his promotion, and thus, the administrative
judge correctly used the standard set forth in Deida, 110 M.S.P.R. 408, ¶ 14. ID
at 8-10; IAF, Tab 24 at 2-3. 4
The appellant’s promotion actually occurred.
¶8Although the administrative judge acknowledged that the HR Specialist
processed the appellant’s promotion, and the record contained a Standard Form
(SF) 50 reflecting the action, she found that the totality of the circumstances
demonstrated that the appellant’s promotion did not actually occur. ID at 10-12.
Crediting the testimony of the FMS Chief, the administrative judge found that, on
November 3, 2021, i.e., prior to the effective date of the promotion, the Associate
Medical Center Director instructed the FMS Chief to delay the appellant’s
promotion, and the FMS Chief informed the appellant that his promotion was on
hold. Id. Therefore, she found that there was no requisite “last act” by an official
with appointment power. ID at 11-12. On review, the appellant argues that his
promotion did occur, asserting, among other things, that the requisite last act
occurred when the selecting official chose the appellant for the promotion and the
HR Specialist effectuated the promotion. PFR File, Tab 6 at 7-16.
¶9No appointment of a Federal employee can occur in the absence of the “last
act” required by the person or body vested with appointment power. McGovern v.
Equal Employment Opportunity Commission , 28 M.S.P.R. 689, 692 (1985)
(citation omitted). The Boad has found that, rather than relying solely on the
absence or presence of an SF-50 in determining whether an appointment has been
effected, it will examine the totality of the circumstances surrounding the
appointment to determine whether the requisite last act of an official with
appointment power has taken place. Scott v. Department of the Navy , 8 M.S.P.R.
282, 287 (1981). Thus, one of the dispositive issues to be considered is whether
an official with the appropriate authority took, authorized, or ratified any action
which reasonably could be said to have resulted in the appointment or promotion.
Id.
¶10Here, we find that the appellant’s promotion did actually occur. The
following facts are not in dispute: the selecting official, who was also the
appellant’s second-line supervisor, had been given the authority by the agency to5
make a selection for the Lead BESS position and chose the appellant for the
position. IAF, Tab 9 at 102, 127-28, Tab 28-5 (testimony of the appellant’s
second-line supervisor). The appellant accepted the offer, and the HR Specialist
processed the promotion in accordance with the terms of the official job offer.
IAF, Tab 9 at 102, 127-28, Tab 21 at 7-8, Tab 28-2 (testimony of the HR
Specialist). Then, the appellant reported to the Lead BESS position on
November 8, 2021, and occupied that position in both title and pay until the
agency cancelled the promotion on or about January 24, 2022. IAF, Tab 9 at 45,
95-96, Tab 28-1 (testimony of the appellant). Even the agency recognized that
the appellant’s promotion actually occurred, as the FMS Chief stated in his
January 18, 2022 letter to the appellant, “[o]n November 7, 2021, you were
promoted to the Lead BESS position.” IAF, Tab 9 at 94.
¶11Therefore, even if the FMS Chief informed the appellant that his promotion
was on hold on November 3, 2021, as found by the administrative judge, this fact
is not dispositive as to whether the promotion actually occurred. ID at 10-12.
Stated another way, even if the agency intended to delay the appellant’s
promotion and had informed the appellant of such plans, this fact does not negate
the evidence in the record that clearly establishes that the appellant’s promotion
did, in fact, occur. Accordingly, we find that the appellant established by
preponderant evidence the first element of his prima facie case of jurisdiction.
The appellant performed in the Lead BESS position before the agency revoked
the promotion.
¶12The administrative judge also found that, even if the promotion did actually
occur, the appellant did not perform in the Lead BESS role before the agency
revoked his promotion. ID at 12-14. Specifically, citing to testimony from the
appellant’s first- and second-line supervisor, the administrative judge found that
the appellant did not perform the duties unique to the Lead BESS role. ID
at 13-14. On review, the appellant challenged the administrative judge’s
credibility determinations, arguing that she omitted critical testimony establishing6
that the appellant was performing as a Lead BESS until the cancellation of his
promotion in January 2022. PFR File, Tab 6 at 23-26.
¶13The 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. 2002).
However, the Board has found that it does not owe deference to an administrative
judge’s credibility determinations when her findings are incomplete, inconsistent
with the weight of the evidence, and do not reflect the record as a whole. Thomas
v. Department of the Army , 2022 MSPB 35, ¶ 8. Upon review of the record,
including the hearing testimony, we find that the administrative judge’s
credibility determinations do not accurately reflect the record and are inconsistent
with the weight of the evidence, and the record as a whole. Therefore, we will
not defer to them.
¶14Specifically, the administrative judge found that the appellant did not
perform the duties of a Lead BESS because he did not assign work to technicians
and he did not attend weekly internal Lead BESS meetings. ID at 13-14. In his
testimony, the appellant’s first-line supervisor explained that he was instructed by
his supervisor not to have the appellant attend the weekly internal Lead BESS
meetings, or assign work to technicians, because these duties were visible to the
other employees. IAF, Tab 28-4 (testimony of the appellant’s first-line
supervisor). However, the appellant’s first-line supervisor also stated that the
appellant performed other duties associated with the Lead BESS position,
including attending external clinic meetings as a Lead BESS. Id. Furthermore,
the appellant’s first-line supervisor stated that the appellant was performing in the
Lead BESS role until the agency cancelled his promotion in January 2022.4 Id.
4 The appellant’s second-line supervisor testified that he did not recall seeing any work
orders created by the appellant, but explained that the appellant’s first-line supervisor
would be in the best position to observe the appellant’s daily duties. IAF, Tab 28-57
Furthermore, while the appellant’s first-line supervisor knew there were issues
with the appellant’s promotion, there is no evidence that he was directed not to
allow the appellant to perform any Lead BESS duties or that he was informed that
the appellant was not to be considered a Lead BESS. IAF, Tab 28-4 (testimony of
the appellant’s first-line supervisor).
¶15In addition to the testimony of the appellant’s first-line supervisor, it simply
stretches credulity that the appellant did not perform any Lead BESS duties
despite reporting for duty and occupying that position in both title and pay for
over 2 months.5 IAF, Tab 9 at 45, 102, Tab 21 at 17-18. Furthermore, the
appellant was listed in the agency’s HR systems as the Lead BESS, and the
agency knew, or should have known, that the appellant was occupying the Lead
BESS position, as he included the position title in the signature block of his
emails. IAF, Tab 9 at 95-98, Tab 28-1 (testimony of the appellant). Therefore, in
light of the evidence in the record, we find that the appellant performed in the
Lead BESS position before the agency cancelled his promotion.
(testimony of the appellant’s second-line supervisor).
5 In challenging the administrative judge’s credibility findings, the appellant attached
two statements from co-workers supporting his testimony that his promotion was
announced to staff, that individuals congratulated him, and that the appellant performed
as the Lead BESS. PFR File, Tab 6 at 28-29. He also attached a copy of meeting notes
from a staff meeting dated October 29, 2021, reflecting that the appellant had been
selected as Lead BESS. Id. at 30-31. The appellant asserts that this evidence is new
and material because the documents address the dispositive issues in this case, and he
did not know that the administrative judge was going to “make assumptions” and use
those assumptions to discredit his testimony. Id. at 18-19. Generally, 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). Because these
documents merely confirm what is already in the record, they do not impact our
findings, and we need not consider them. The appellant may submit the documents on
remand consistent with the Board’s regulations and the administrative judge’s
instructions.8
On remand, the administrative judge shall determine whether the appellant’s
promotion was an error contrary to law or regulation.
¶16In conclusion, we find that that the appellant proved that his promotion did
actually occur, he took action to denote its acceptance, and he performed in the
position prior to its cancellation; therefore, he has made a prima facie case of
jurisdiction. Deida, 110 M.S.P.R. 408, ¶ 14 (setting forth the elements for a
prima facie case). Once an appellant has made a prima facie case of jurisdiction,
the burden of production shifts to the agency to show that the promotion was an
error contrary to law or regulation. Id., ¶ 16. If the agency makes such a
showing, then the appellant will be afforded the chance to rebut the same as he
bears the ultimate burden of proof on the issue of jurisdiction. Id., ¶ 17. If the
promotion was made in error, contrary to law or regulation, then the Board lacks
jurisdiction over the agency’s action correcting that error. Gessert v. Department
of the Treasury, 113 M.S.P.R. 329, ¶ 13 (2010); 5 C.F.R. § 752.401(15).
¶17Because the administrative judge found that the appellant did not make a
prima facie case of jurisdiction, she made no findings regarding whether the
appellant’s promotion was an error contrary to law or regulation. ID at 10-15.
As the hearing officer, the administrative judge is in the best position to make any
necessary factual findings and detailed credibility assessments. Mastrullo v.
Department of Labor , 123 M.S.P.R. 110, ¶ 27 (2015). We therefore remand this
appeal to the administrative judge to resolve this issue in the first instance. 9
ORDER
¶18For 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.10 | Kirkbride_BrianAT-0752-22-0475-I-1_Remand_Order.pdf | 2024-04-10 | BRIAN KIRKBRIDE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-22-0475-I-1, April 10, 2024 | AT-0752-22-0475-I-1 | NP |
1,823 | https://www.mspb.gov/decisions/nonprecedential/Kennedy_Robert_L_SF-3330-16-0380-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT L. KENNEDY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-3330-16-0380-I-1
DATE: April 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert L. Kennedy , Honolulu, Hawaii, pro se.
Reza Behinia , 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
dismissed his Veterans’ Employment Opportunity Act (VEOA) appeal for failure
to prosecute, with prejudice and without holding a hearing. For the reasons set
forth below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
Consistent with the notice provided therein, the initial decision became
final on October 27, 2016, after neither party filed a petition for review by that
date. Initial Appeal File (IAF), Tab 13, Initial Decision (ID) at 3. On March 5,
2018, the appellant filed an unsworn pleading, which he styled as a request for
“Reopening An Appeal Dismissed Without Prejudice.” Petition for Review (PFR)
File, Tab 1 at 3. On review, he contends that he “was never served any notice to
attend anything else in the case,” or “anything [else] from [the Board],”
apparently because he was incarcerated in July 2016, and that he is “just now
looking into the case.” Id. He also alleges that “the VA [told him] not to worry
about anything else” because “they have favored [him].” Id.
In an acknowledgment letter, the Clerk of the Board explained to the
appellant that his petition appeared to be untimely and that his appeal may be
dismissed on that basis if he did not submit a motion for waiver of the time limit
and a sworn statement or affidavit explaining why there is good cause for the
delay. PFR File, Tab 2 at 2-3. The Clerk also enclosed a copy of the Board’s
form “Motion to Accept Filing as Timely and/or to Ask the Board to Waive or Set
Aside the Time Limit.” Id. at 8-9. Neither party has responded to the Clerk’s
acknowledgment letter.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board treats a request to reopen an initial decision that became final
when neither party petitioned for review as an untimely filed petition for review.
See Valdez v. Office of Personnel Management , 103 M.S.P.R. 88, ¶ 4 (2006).
Thus, we consider the appellant’s arguments on review insofar as they relate to
the timeliness of his petition for review.
A petition for review must be filed within 35 days after the date of issuance
of the initial decision or within 30 days after the date that the appellant received
the initial decision if he shows that he received the initial decision more than2
5 days after it was issued. 5 C.F.R. § 1201.114(e). The appellant has not shown
that he complied with those time limits. Although he claims he was “never
served with anything,” PFR File, Tab 1 at 3, Board documents served
electronically on registered e-filers are deemed received on the date of electronic
submission, regardless of whether they were in fact received, Lima v. Department
of the Air Force , 101 M.S.P.R. 64, ¶ 5 (2006); 5 C.F.R. § 1201.14(m)(2). Thus,
as a registered e-filer, the appellant is deemed to have received the initial
decision on September 22, 2016, the date the Board’s Western Regional Office
served him at his email address of record. ID at 1; IAF, Tab 1 at 2, Tab 14.
Accordingly, his March 5, 2018 petition for review is untimely by approximately
16 months.
The Board will excuse the untimely filing of a petition for review only
upon a showing of good cause for the delay. 5 C.F.R. § 1201.114(g). To
establish good cause for the untimely filing of a petition, a party must show that
he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980). To determine whether an appellant has shown good cause, the
Board will consider the length of the delay; the reasonableness of his excuse and
his showing of due diligence; whether he is proceeding pro se; and whether he
has presented evidence of the existence of circumstances beyond his control that
affected his ability to comply with the time limits or of unavoidable casualty or
misfortune that similarly shows a causal relationship to his inability to timely file
his petition for review. 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).
We find that the appellant has not shown good cause for the delay.
Although he is pro se, the 16-month delay is significant. See Beverly v.
Department of Justice , 110 M.S.P.R. 27, ¶ 6 (2008) (finding the pro se appellant’s
over 2-month delay significant). He also has not explained how his incarceration
prevented him from receiving the initial decision or otherwise prosecuting his3
appeal. See McCoy v. U.S. Postal Service , 112 M.S.P.R. 256, ¶ 7 (2009) (finding
no good cause for the appellant’s filing delay when he failed to explain how his
incarceration prevented him from filing a petition for review or explained the
further delay in filing after he was released), aff’d, 360 F. App’x 132 (Fed. Cir.
2010); Johnson v. Department of the Navy , 73 M.S.P.R. 431, 433 (1997) (finding
that being incarcerated did not relieve the appellant of his responsibility to ensure
that the Board knew where it could reach him). Further, while an appellant’s
reliance on agency misinformation as to the filing deadline may be a basis for
excusing a filing delay, Floyd v. U.S. Postal Service , 44 M.S.P.R. 37, 40-41
(1990), the appellant’s assertion that “the VA [told him] not to worry about
anything else,” PFR File, Tab 1 at 3, is insufficient to show that the agency
misinformed him as to any matter. In any event, the initial decision correctly
apprised him of the filing deadline. ID at 3; see Beverly, 110 M.S.P.R. 27, ¶ 6.
The appellant continued to exhibit a lack of due diligence by failing to submit the
required motion and accompanying affidavit or sworn statement . See Morton v.
Department of Veterans Affairs , 113 M.S.P.R. 365, ¶ 9 (2010); 5 C.F.R.
§ 1201.114(g) (providing that late filings must be accompanied by an affidavit or
sworn statement explaining the delay). We, therefore, dismiss the appellant’s
petition for review as untimely filed without good cause shown for the delay.
To the extent that the appellant intended his petition for review to be a
request to reopen his VEOA appeal, we deny that request. The Board usually will
not reopen an appeal to cure the untimeliness of a petition for review. Deville v.
Government Printing Office , 93 M.S.P.R. 187, ¶ 15 (2002). Also, a request to
reopen generally must be filed within a reasonable period of time, measured in
weeks, not years. Cameron v. Department of the Navy , 112 M.S.P.R. 350, ¶ 9
(2009); see 5 C.F.R. § 1201.118. The appellant’s 16-month delay in making his
request was unreasonably long. See Cameron, 112 M.S.P.R. 350, ¶ 9 (denying
the appellant’s request to reopen an appeal approximately 15 months after the
initial decision became final). Absent any other basis for reopening, we decline4
to exercise our discretionary authority under 5 C.F.R. § 1201.118, and we deny
his request to reopen this appeal. Id.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.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. 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 | Kennedy_Robert_L_SF-3330-16-0380-I-1__Final_Order.pdf | 2024-04-10 | ROBERT L. KENNEDY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-3330-16-0380-I-1, April 10, 2024 | SF-3330-16-0380-I-1 | NP |
1,824 | https://www.mspb.gov/decisions/nonprecedential/House_William_C_DA-0714-20-0373-M-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM C. HOUSE, II,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0714-20-0373-M-1
DATE: April 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Christopher Landrigan , Esquire, and Walter Harry Caulfield, IV , Esquire,
Washington, D.C., for the appellant.
Daniel Morvant , Esquire, Delany Steele , Esquire, and Sean Safdi , Esquire,
Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The agency has filed a petition for review, and the appellant has filed a
cross petition for review of the initial decision, which reversed the appellant’s
removal. For the reasons discussed below, we GRANT the agency’s petition for
review, VACATE the initial decision, DENY the appellant’s cross 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, and REMAND the case to the Dallas Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed as GS-13 Health Physicist (Radiation Safety)
with the Department of Veterans Affairs (DVA). House v. Department of
Veterans Affairs , MSPB Docket No. DA-0714-20-0373-I-1, Initial Appeal File
(IAF), Tab 11 at 21. Effective November 8, 2019, the agency removed him from
Federal service based on the charge of failure to safeguard radioactive material.
Id. at 21, 23-26. The decision notice indicated that the removal action was being
taken under the Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No.
115-41, § 202(a), 131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714).
Id. at 23.
Thereafter, the appellant filed an appeal with the Board challenging the
removal, asserting that the agency committed harmful error and violated his due
process rights, and arguing that the removal was the result of race discrimination
and was taken in reprisal for him requesting a reasonable accommodation and
filing an equal employment opportunity (EEO) complaint. IAF, Tab 24 at 11-12,
20-26, 30, 46. After the appellant withdrew his request for a hearing, IAF,
Tab 1 at 2, Tab 17, the administrative judge issued an initial decision on the
written record affirming the removal action, IAF, Tab 25. In doing so,
she concluded that the agency proved the charge of failure to safeguard
radioactive material by substantial evidence, as required by 38 U.S.C. § 714(d)(2)
(A). Id. at 3-7. Acknowledging that an agency’s adverse action decision includes
the penalty selection, she concluded, without discussion, that the agency proved
by substantial evidence that its decision to remove the appellant for the charged
misconduct was reasonable. Id. at 3, 7 (citing Sayers v. Department of Veterans
Affairs, 954 F.3d 1370, 1375 (Fed. Cir. 2020)). She also found that the appellant2
failed to prove any of his affirmative defenses. Id. at 7-18. Accordingly, she
affirmed the removal action. Id. at 18.
After that initial decision became final, the appellant appealed the decision
to the U.S. Court of Appeals for the Federal Circuit. While the appellant’s
petition for review was pending before the Federal Circuit, that court decided
Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290 (Fed. Cir. 2021),
wherein it found that the DVA erred when it applied the substantial evidence
burden of proof to its internal review of a disciplinary action under 38 U.S.C.
§ 714. Rodriguez, 8 F.4th at 1296-1301. The same day it decided Rodriguez, the
Federal Circuit also decided Connor v. Department of Veterans Affairs , 8 F.4th
1319 (Fed. Cir. 2021), wherein it found that the DVA and the Board must still
apply the Douglas2 factors to the selection and review of penalties in DVA
disciplinary actions taken under 38 U.S.C. § 714. Connor, 8 F.4th at 1326-27. In
light of the court’s decision in Connor, the agency filed an unopposed motion
with the Federal Circuit to remand the case to the Board, which the court granted.
House v. Department of Veterans Affairs , No. 21-1457 (Fed. Cir. Nov. 18, 2021)
(order granting unopposed motion to remand).
On remand, the administrative judge reopened the record and provided
the parties with an opportunity to address the issues discussed in Rodriguez
and Connor. House v. Department of Veterans Affairs , MSPB Docket No. DA-
0714-20-0373-M-1, Remand Appeal File (RAF), Tab 7.3 With its close of record
submission, the agency submitted declarations made under penalty of perjury
from the proposing and deciding officials. RAF, Tab 12 at 23-28, 30-34. In the
deciding official’s declaration, he stated that, although the decision notice stated
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981 ), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
3 The record was also reopened to accept evidence and argument regarding whether the
prior initial decision properly resolved a credibility issue, namely, whether an agency
official approved of the appellant’s actions that supported the agency’s charge.
RAF, Tab 7 at 3. 3
that the charge was supported by substantial evidence, he “would have easily
found” the charge to be supported by preponderant evidence because it was
undisputed that the appellant engaged in the underlying conduct described in the
charge. Id. at 34. Regarding the penalty, he stated that, although there was no
“standard Douglas factor analysis” prepared prior to his issuing his decision,
he nonetheless was familiar with the Douglas factors and “considered the
underlying considerations of the Douglas factors” at the time he made his
decision. Id. at 31. His declaration also includes a formal Douglas factors
analysis, explaining the basis for the penalty of removal. Id. at 31-33. In the
proposing official’s declaration, he also stated that the charge of failure to
safeguard radioactive materials is supported by preponderant evidence and that,
although he did not complete a “formulaic Douglas factor analysis,” he did
consider “many of the same considerations encompassed by the Douglas factors
at the time he issued the proposal.” Id. at 23, 28.
In the appellant’s close of record submission, he argued that, as a result of
the administrative judge reopening the record on, among other things, the
reasonableness of the penalty, he learned of information that, he believed,
demonstrated that the deciding official violated his due process rights by
improperly relying on ex parte information in removing him.4
RAF, Tab 11 at 13-16, 39-42.
Without taking additional testimony, RAF, Tab 7 at 3, the administrative
judge issued an initial decision on the written remand record, RAF, Tab 17,
Remand Initial Decision (RID).5 He considered whether the appellant’s removal
was in accordance with Rodriguez, and in doing so, considered the deciding
4 The appellant’s due process argument from his initial appeal concerned whether his
removal was “predetermined” and whether he was given an adequate opportunity to
review the agency file prior to replying to the notice of proposed removal. IAF, Tab 25
at 10-13. These due process arguments are unrelated to his due process argument raised
in the remand appeal.
5 Prior to the issuance of the remand initial decision, the appeal was reassigned to a new
administrative judge. RAF, Tab 16. 4
official’s declaration. RID at 4-6. He found that the agency was required to
prove that it applied the correct burden of proof “at the time [the deciding
official] decided the charges were sustained,” and that the deciding official’s
declaration demonstrated that he did not do so. RID at 6. As such, the
administrative judge found that the agency failed to apply the correct standard of
proof when determining that the appellant committed the charged offense, and he,
therefore, reasoned that the DVA “had no legal authority to take an action under
§ 714 based merely on substantial evidence.” RID at 7. Accordingly, the
administrative judge reversed the appellant’s removal action as “not in
accordance with the law.” Id. Based on these findings, the administrative judge
determined that it was not necessary to decide whether the agency properly
considered the reasonableness of the penalty in accordance with Connor.6
RID at 7 n.8. Pursuant to 38 U.S.C. § 714(d)(7), the administrative judge did not
order interim relief. RID at 9.
The agency has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. Therein, it argues that the administrative judge
erred in finding that the agency’s decision was “not in accordance with the law”
and that he should have applied a harmful error analysis in determining the effect
of the agency’s alleged failure to apply the correct standard of proof to its
internal decision. Id. at 19-22. It further argues that the administrative judge
erred in finding that the record failed to establish that, at the time the deciding
official made his decision, he had determined that the charge was supported by at
least preponderant evidence and, in any event, that the deciding official’s
statements on remand should have been considered in determining whether, “in
retrospect[,]” the charge was supported by preponderant evidence. Id. at 10-18.
The appellant has filed a response to the agency’s petition for review and a
cross petition for review. PFR File, Tab 3. In his cross petition for review, the
6 Similarly, the administrative judge did not address the credibility issue referenced in
footnote 3 or the appellant’s due process argument. RID at 7 n.8. 5
appellant argues that the administrative judge should have also reversed the
removal action based on the agency’s failure to prove by substantial evidence the
deciding official considered the Douglas factors and the reasonableness of the
removal penalty. Id. at 13, 21-26. He also reasserts his claim that the agency
violated his due process rights and argues that the removal should have been
reversed on due process grounds as well.7 Id. at 27-28. The agency has replied to
the appellant’s response to its petition for review, and it has responded in
opposition to his cross petition for review. PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency’s application of the substantial evidence standard to its internal
deliberation of the charge is subject to the harmful error standard.
In the agency’s decision notice removing the appellant, the deciding
official concluded that the agency’s charges were supported by substantial
evidence. IAF, Tab 11 at 23. As explained above, the Federal Circuit in
Rodriguez found that the preponderant evidence is the proper standard for the
DVA to apply in determining whether an employee has engaged in misconduct
that justifies discipline. Rodriguez, 8 F.4th 1297-1301; RAF, Tab 7 at 3. In his
declaration discussed briefly above, the deciding official stated that, at the time
he made his decision, he “did not believe there was any dispute” regarding
whether the appellant engaged in the charged misconduct and that he “would have
easily found” the charge was supported by preponderant evidence but the
“standard language” at the time was to state that the charge was supported by
7 The appellant’s cross petition for review also appears to argue that, if the Board
remands the appeal, it should award interim relief. PFR File, Tab 3 at 24. However,
38 U.S.C. § 714(d)(7) provides that, in actions taken under § 714, an appellant who files
a Board appeal “may not receive any pay, awards, bonuses, incentives, allowances,
differentials, student loan repayments, special payments, or benefits related to the
employment of the individual by the Department [of Veterans Affairs]” after his or her
removal by the agency until “the United States Court of Appeals for the Federal Circuit
issues a final decision on such appeal.” Therefore, interim relief is not available to the
appellant here. 6
substantial evidence. RAF, Tab 12 at 34. Nonetheless, he found and affirmed in
his declaration that the charge was supported by preponderant evidence. Id.
In the initial decision, the administrative judge observed that the decision
notice expressly stated that the charge was supported by substantial evidence and
that the issue is not what standard of proof “could have been met by the evidence
available to the deciding official” but whether he applied the correct standard of
proof “at the time he decided the charges were sustained.”8 RID at 5-6.
Rejecting the agency’s argument that the application of an incorrect standard of
proof is subject to a harmful error analysis, the administrative judge found that
the agency action was “not in accordance with the law,” and he reversed the
removal. ID at 6-7.
In the agency’s petition for review, it again argues that a failure to apply
the correct standard of proof does not render a decision “not in accordance with
law” and that the administrative judge should have analyzed the error under a
harmful error framework. PFR File, Tab 1 at 19-22. We agree. In Semenov
v. Department of Veterans Affairs , 2023 MSPB 16, the Board held that, because
the Board adjudicates an action taken under the VA Accountability Act under
5 U.S.C. § 7701(b)(1), see 38 U.S.C. § 714(c)(4)(A), (d)(1), actions taken under
38 U.S.C. § 714 are subject to the harmful error test from 5 U.S.C. § 7701(c)(2),
8 Regarding the deciding official’s declaration on this point, we find nothing
inconsistent between the deciding official’s statement in the decision notice that the
charges are supported by substantial evidence and his later statement in a declaration
that the charges are supported by preponderant evidence. IAF, Tab 11 at 24; RAF,
Tab 20 at 23-25. A determination that the charges are supported by preponderant
evidence necessarily includes an implicit acknowledgment that the charges are also
supported by substantial evidence. See 5 C.F.R. § 1201.4(p), (q) (explaining that
substantial evidence is a “lower standard of proof than preponderance of the evidence”).
Thus, we discern no reason to disregard the deciding official’s subsequent statement
that the charges are supported by preponderant evidence based solely on the fact that he
made a prior determination under a lower standard of proof. Similarly, we discern no
reason to limit consideration of whether the agency’s internal administrative record
established by preponderant evidence that the appellant engaged in the charged
misconduct to only evidence showing that the deciding official made that determination
at the time he issued the decision removing the appellant. 7
Semenov, 2023 MSPB 16, ¶ 23. As such, the proper inquiry here is whether the
agency’s error in applying the incorrect standard of proof was likely to have
caused the agency to reach a different conclusion from the one it would have
reached in the absence or cure of the error. See id. (citing Ronso v. Department
of the Navy, 122 M.S.P.R. 391, ¶ 14 (2015); 5 C.F.R. § 1201.4(r)). Accordingly,
we vacate the initial decision and remand this appeal for the administrative judge
to consider whether the agency committed harmful error.9
If applicable, the administrative judge should consider whether the agency proved
that the penalty of removal is supported by substantial evidence in accordance
with Connor .10
When determining whether the agency’s decision to remove the appellant
under the VA Accountability Act is supported by substantial evidence, the Board
must also consider the agency’s penalty choice as part of that review. Sayers,
954 F.3d at 1376. As previously explained, in Connor, the Federal Circuit held
that the DVA and the Board “must continue to apply the relevant Douglas factors
in considering the reasonableness of the penalty in [D]VA disciplinary action
cases.” Connor, 8 F.4th at 1326.
9 Because we are granting the agency’s petition for review and remanding the appeal on
the basis that the administrative judge erred in reversing the removal action as “not in
accordance with the law,” we deny the appellant’s cross petition for review arguing that
his removal should have also been reversed on the grounds that the agency failed to
prove the reasonableness of the penalty and that it considered the Douglas factors in
accordance with Connor. PFR File, Tab 3 at 21-26. Regarding his claim in the cross
petition for review that the removal action should have been reversed on due process
grounds, id. at 27-28, this remand order instructs the administrative judge to consider
this affirmative defense in light of any additional evidence deduced at a supplemental
hearing.
10 As noted above, the administrative judge previously assigned to this case found in the
first initial decision that the agency proved the charge of failure to safeguard
radioactive material by substantial evidence, as required by 38 U.S.C. § 714(d)(2)(A).
IAF, Tab 25 at 3-7. On remand, if appropriate, the administrative judge may
incorporate these findings into his remand initial decision if he determines that the
agency’s error in applying an incorrect standard of proof was not harmful. In this
context, the administrative judge may consider, if deemed necessary, the credibility
issue regarding whether an agency official approved of the appellant’s actions, as
described in the close of record order. RAF, Tab 7 at 3.8
As noted above, the agency submitted declarations from the proposing and
deciding officials, stating that, although they did not conduct a “standard” or
“formulaic” Douglas factors analysis, they nonetheless considered the substance
of the factors. RAF, Tab 12 at 23, 31. Additionally, both declarations include a
subsequent analysis of the Douglas factors. Id. at 24-28, 31-33. However,
because the administrative judge found that the removal action was “not in
accordance with the law” due to its application of an incorrect standard of proof,
he declined to address whether the agency considered the reasonableness of the
penalty of removal pursuant to Connor. RID at 7 n.8.
On remand, if applicable, the administrative judge should consider whether
the penalty of removal is supported by substantial evidence and in accordance
with Connor.
ORDER
For the reasons discussed above, we remand this case to Dallas Regional
Office for further adjudication in accordance with this Remand Order. As
outlined above, the administrative judge shall first address whether the agency’s
error in applying the substantial evidence standard of proof to its original action
was harmful. See 5 U.S.C. § 7701(a)(1), (b)(1); Semenov, 2023 MSPB 16, ¶ 24.
If the administrative judge determines that the agency’s error was not harmful, he
should then consider whether the agency proved that the penalty of removal is
supported by substantial evidence and in accordance with Connor.
In conducting this adjudication, the administrative judge shall hold a
supplemental hearing, but may limit the subject matter to issues deemed relevant
on remand. He shall then issue a remand initial decision discussing these issues.
See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980)
(explaining that an initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and his legal reasoning, as well as the9
authorities on which that reasoning rests). To the extent any of the evidence or
argument taken on remand affects the administrative judge’s prior discussion of
the appellant’s affirmative defenses, the remand initial decision should reflect
that analysis.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | House_William_C_DA-0714-20-0373-M-1__Remand_Order.pdf | 2024-04-10 | null | DA-0714-20-0373-M-1 | NP |
1,825 | https://www.mspb.gov/decisions/nonprecedential/Paulus_Myra_L_PH-0432-19-0432-I-2 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MYRA PAULUS,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
PH-0432-19-0432-I-2
DATE: April 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Sigmund J. Kozierachi , Sewell, New Jersey, for the appellant.
Richard T. Buchanan , Esquire, and Ryan C. Atkinson , Esquire,
Philadelphia, 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
affirmed her removal from Federal service for unacceptable performance pursuant
to chapter 43 and denied her affirmative defenses of disability discrimination and
military service discrimination under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). For the reasons discussed below,
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).
we GRANT the appellant’s petition for review. We AFFIRM the administrative
judge’s findings that the appellant failed to prove her affirmative defenses of
disability discrimination under the theory of failure to accommodate and
discrimination under USERRA. We VACATE the administrative judge’s finding
that the agency proved the elements of its performance-based removal action, and
we REMAND the appeal to the regional office for adjudication of the appellant’s
affirmative defenses of sexual harassment and retaliation for union and equal
employment opportunity (EEO) activity and further adjudication of the merits of
the removal action in accordance with this Remand Order.
BACKGROUND
The appellant, a former GS-9 Wage and Hour Investigator, was removed
from Federal service pursuant to chapter 43 after the agency determined that she
failed a 100-day performance improvement plan (PIP). Initial Appeal File (IAF),
Tab 5 at 15-21. She appealed her removal to the Board. IAF, Tab 1. On the
initial appeal form, the appellant asserted that her removal was the result of
discrimination based on “retired military service and her VA disability status.”
Id. at 4. After an opportunity to engage in discovery, both parties filed
prehearing submissions. IAF, Tab 15 at 1, Tabs 16-27. The appellant later
submitted a timely supplemental prehearing submission, which stated that she
wished to raise a claim of “unwelcome non -verbal and verbal prohibited
personnel sexual harassment.” Refiled Appeal File (RAF), Tab 40 at 4. The
administrative judge subsequently issued a prehearing conference order, which
noted that the appellant had raised two affirmative defenses—disability
discrimination (failure to accommodate) and military service discrimination under
USERRA—and advised the appellant of her burden of proof as to those defenses.
RAF, Tab 41 at 5-8. The order did not advise the appellant of the burden of proof
for a claim of sexual harassment. Id. 2
After a hearing, the administrative judge issued an initial decision finding
that the agency proved the elements for sustaining its chapter 43 action and that
the appellant failed to prove her affirmative defenses of failure to accommodate
and military service discrimination. RAF, Tab 51, Initial Decision (ID). The
appellant has filed a timely petition for review and the agency has filed a
response in opposition. Petition for Review (PFR) File, Tabs 1, 5.2
On review, the appellant asserts the following: (1) the administrative judge
made an erroneous factual finding regarding the date on which she was placed on
an informal PIP and failed to consider the documents and evidence she submitted
in support of her appeal, PFR File, Tab 1 at 4-5, 8; (2) the administrative judge
erred in finding that the agency proved that it warned the appellant of the
deficiencies in her performance before placing her on a PIP; (3) the
administrative judge erred in finding that the agency gave her a reasonable
opportunity to improve during the PIP period and that it provided her assistance
in achieving the PIP objectives, id. at 5-8; (4) the administrative judge erred in
denying her affirmative defenses of USERRA discrimination and failure to
accommodate, id. at 9-12, 15-19; and (5) the administrative judge did not
consider that the District Director engaged in harassing anti-union and anti-EEO
conduct and that the Assistant District Director sexually harassed her, id.
at 13-14.
DISCUSSION OF ARGUMENTS ON REVIEW
To defend an action under chapter 43, the agency must prove the following
by substantial evidence: (1) OPM approved its performance appraisal system and
any significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of her position; (3) the appellant’s
performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the appellant’s
2 The appellant’s reply to the agency’s response to the petition for review was filed
about 3 weeks late with no good cause shown. PFR File, Tabs 4-6. Thus, we have not
considered it in reaching our decision. 3
performance during the appraisal period was unacceptable in one or more critical
elements; (5) the agency warned the appellant of the inadequacies in her
performance during the appraisal period and gave her an adequate opportunity to
demonstrate acceptable performance; and (6) after an adequate improvement
period, the appellant’s performance remained unacceptable in at least one critical
element. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15. On
review, the appellant does not dispute that the agency proved elements one
through four and six, and we find no reason to disturb the administrative judge’s
findings as to those elements. ID at 16-18.
Regarding the appellant’s argument that the administrative judge made an
erroneous factual finding about the date on which she was placed on an informal
PIP, we find that even accepting as true the appellant’s assertion that she received
the informal PIP in June 2018, rather than in May 2018, as the administrative
judge found, ID at 3, the appellant was on notice that the agency believed her
performance was unacceptable for at least 3 months before being placed on the
formal PIP in September 2018. To the extent the appellant argues that the notice
was deficient because the informal PIP did not reference the critical elements of
her position, PFR File, Tab 1 at 6, the U.S. Court of Appeals for the Federal
Circuit has explained that “[p]erformance failures can be documented or
established in any number of ways,” and noted that it prescribed no specific
evidentiary showing with respect to demonstrating that an appellant’s pre-PIP
performance was deficient, Santos v. National Aeronautics & Space
Administration, 990 F.3d 1355, 1363 (Fed. Cir. 2021). We find that the informal
PIP and the August 3, 2018 counseling memorandum put the appellant on notice
that the agency believed her performance was deficient prior to her placement on
the September 2018 PIP. IAF, Tab 6 at 23-24, 27-28.
The appellant has argued on review that she was denied a reasonable
opportunity to improve her performance, in part, because the Assistant District
Director and the District Director harassed her. PFR File, Tab 1 at 9-14.4
Specifically, she claims that the Assistant District Director sexually harassed her
and the District Director retaliated against her for her union and EEO activity. Id.
at 13-14. The appellant timely raised these defenses prior to the prehearing
conference, but she did not receive notice as to her burden of proof or the
evidence required to prove these affirmative defenses and the administrative
judge did not address them in the initial decision.3 IAF, Tab 17 at 76-81, Tab 18
at 94-95; RAF, Tab 40 at 4-7. Accordingly, we must remand this appeal for the
administrative judge to inform the appellant of her burden of proof and to
explicitly advise her of the kind of evidence that is required to meet her burden as
to these defenses. See Wynn v. U.S. Postal Service , 115 M.S.P.R. 146, ¶¶ 12-13
(2010), overruled on other grounds by Thurman v. U.S. Postal Service ,
2022 MSPB 21, ¶ 17; Erkins v. U.S. Postal Service , 108 M.S.P.R. 367, ¶ 11
(2008). Because the appellant’s claims of harassment are intertwined with the
question of whether the appellant had a reasonable opportunity to improve her
performance during the PIP period, we instruct the administrative judge to
include in the remand initial decision a new analysis pertaining to this element of
the agency’s removal action, taking into consideration any additional evidence
that is developed on remand.
The appellant has also alleged, without detail or explanation, that she filed
a whistleblower complaint. IAF, Tab 17 at 9. To the extent the appellant is
referring to her sexual harassment complaint and/or her EEO activity, the Board
has held that reprisal for filing an EEO complaint is not protected by 5 U.S.C.
3 Insofar as the administrative judge considered broadly the appellant’s allegation that
she was subjected to a hostile work environment, ID at 19, it does not appear that he
explicitly considered claims of retaliatory hostile work environment or sexual
harassment. Additionally, the basis of the appellant’s alleged EEO activity is not clear
from the record. It appears that she may have participated in an EEO investigation as a
witness, IAF, Tab 17 at 57, and, separately, she communicated with the EEO office
regarding reasonable accommodation requests, id. at 119. On remand, the
administrative judge should clarify the basis of the appellant’s EEO retaliation claim
and give the appropriate notice. See Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 43-48 (explaining the different standards for retaliation claims
brought under Title VII and the Rehabilitation Act).5
§ 2302(b)(8). Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 10-17.
However, because the record lacks detail as to the alleged whistleblower
complaint, we instruct the administrative judge to give jurisdictional notice as to
a potential whistleblower reprisal affirmative defense upon clarifying that the
appellant intends to raise such a claim.
For the reasons set forth in the initial decision, we agree with the
administrative judge’s findings that the appellant failed to prove her affirmative
defenses of military service discrimination and failure to accommodate.
ID at 13-15, 19-21. The appellant’s arguments in her petition for review
regarding these affirmative defenses merely reiterate arguments that were already
raised before the administrative judge and provide no basis to disturb his
findings.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. The
administrative judge shall inform the appellant of her burden of proof on the
affirmative defenses of sexual harassment and retaliation based on union and EEO
activity and explicitly advise her of the kind of evidence that is required to meet
her burden. The administrative judge shall also clarify whether the appellant
intends to raise a whistleblower retaliation affirmative defense, and if so, he shall
take appropriate action as described above. The administrative judge shall afford
the parties an opportunity for discovery and a supplemental hearing on these
additional affirmative defenses if the appellant requests one. The administrative
judge must give appropriate consideration to any additional evidence developed
on remand and consider its effect, if any, on whether the agency has met its
burden to prove that it afforded the appellant a reasonable opportunity to improve
her performance. If the argument or evidence raised on remand affects the
administrative judge’s analysis as to any other element of the underlying removal6
action, the administrative judge should make explicit findings regarding the same.
The administrative judge must then issue a new initial decision addressing each of
these issues. 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.7 | Paulus_Myra_L_PH-0432-19-0432-I-2 Remand Order.pdf | 2024-04-10 | MYRA PAULUS v. DEPARTMENT OF LABOR, MSPB Docket No. PH-0432-19-0432-I-2, April 10, 2024 | PH-0432-19-0432-I-2 | NP |
1,826 | https://www.mspb.gov/decisions/nonprecedential/McElhaney_Michael_DC-1221-21-0439-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL MCELHANEY,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-21-0439-W-1
DATE: April 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Marc Pasekoff , Esquire, Washington, D.C., for the appellant.
Justin Sacks , Esquire, Falls Church, Virginia, for the agency.
Anette Veldhuyzen , Esquire, Fort Belvoir, 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 his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision , and REMAND the appeal to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is employed as a GS-6 Psychiatric Nursing Assistant with the
agency in the Department of Behavioral Health at the Fort Belvoir Community
Hospital in Fort Belvoir, Virginia. Initial Appeal File (IAF), Tab 1 at 10, Tab 5
at 4. According to the appellant, in September 2014,2 his coworker and fellow
union shop steward wrote a statement to management and/or the agency’s Office
of Inspector General (OIG) about contractors falsifying time sheets, sleeping on
duty, and playing inappropriate videos on Government computers. IAF, Tab 4
at 7, 12, Tab 6 at 7-8. A copy of this statement is not in the record.
In August 2015, an anonymous source sent a letter to management
disclosing, inter alia, that contractors were falsifying time sheets, sleeping on the
job, and playing inappropriate videos on Government computers. IAF, Tab 4
at 7-8. The appellant alleges that agency management believed he was
responsible for this disclosure. Id. at 8. In August 2015, the appellant “followed
the anonymous letter” with a list of questions posed to management in
anticipation of a Town Hall meeting. IAF, Tab 4 at 7, Tab 5 at 9.
In November 2015, the appellant’s coworker sent management an email
from her official Government email account alleging that a contractor was acting
unprofessionally by playing video games and sleeping at work and listed the
appellant as a witness. IAF, Tab 4 at 7, Tab 5 at 10-12. She also sent a picture
purporting to show the contractor asleep at his desk and alleged that he was
“looking at movies, cheating on his time sheets, [and] crossing the line with
female patients.” IAF, Tab 5 at 12.
2 At times the appellant refers to this communication as having occurred in
October 2014, rather than September 2014. IAF, Tab 4 at 12, Tab 6 at 8; Petition for
Review File, Tab 1 at 10. However, we agree with the administrative judge that the
appellant appears to be referring to the same communication. IAF, Tab 13, Initial
Decision at 5 n.2. 2
In December 2015, the appellant claims that he represented or assisted his
coworker with a union grievance by sending management an email asserting that
she was invoking her Weingarten rights. IAF, Tab 4 at 7, Tab 6 at 4-5. Later that
month, the appellant filed his first whistleblower reprisal complaint with the
Office of Special Counsel (OSC) (MA-16-1231) over the aforementioned alleged
perceived or actual disclosures and activity.3 IAF, Tab 8 at 29, 32-33.
Around January 2016, the appellant also allegedly disclosed to his
supervisor that he was working in a stressful and hostile environment because his
supervisor was acting aggressively towards him.4 IAF, Tab 1 at 13. In
February 2017, he again disclosed to his supervisor that his work environment
was hostile. Id. In October 2019, he contacted the agency’s OIG about not
receiving the appropriate appraisal award and experiencing bullying and
intimidation. IAF, Tab 6 at 17.
According to the appellant, as a result of the communications in
September 2014; August, November, and December 2015; and January 2016, he
was subjected to retaliation, to include the following: an October 2014 denial of
a position upgrade and performance bonus, a December 2015 decreased
performance evaluation, performance counseling, reassignment to a receptionist
position, a May 2016 performance counseling letter, a July 2016 lowered
performance evaluation, a January 2019 change in his work location and hours, an
undated improper midterm review, a lowered time-off award, a 2020 lowered
3 The appellant filed an appeal regarding his first OSC complaint (MA-16-1231), which
was dismissed for lack of jurisdiction because he failed to exhaust his administrative
remedies with OSC that he was perceived as making the September 2014 and August
and November 2015 disclosures and failed to exhaust his claim that he made a
disclosure in August 2015, when he submitted the list of Town Hall questions.
McElhaney v. Department of Defense , MSPB Docket No. DC-1221-18-0237-W-1, Initial
Decision at 1, 11-13, 17 (Apr. 11, 2018). That decision became final when neither
party filed a petition for review. Id. at 17.
4 The appellant’s OSC complaint states this communication occurred in January 2017,
not 2016. IAF, Tab 1 at 13. However, because he states elsewhere in the record that it
occurred in 2016, this appears to be a typographical error. IAF, Tab 4 at 4, 8, 12;
Petition for Review File, Tab 1 at 6, 9. 3
performance evaluation, the denial of training time, insufficient staffing at his
clinic, being ordered to report to work in-person while other staff were allowed to
telework because of the pandemic, and being subjected to a hostile work
environment. IAF, Tab 1 at 12-13, Tab 5 at 5, Tab 6 at 14, 16-18.
The appellant filed the underlying whistleblower reprisal complaint
(MA-18-3780) with OSC in May 2018. IAF, Tab 1 at 7-16. OSC issued him a
final determination letter in March 2021, closing out its investigation into his
complaint. Id. at 17. The appellant filed this IRA appeal with the Board.
Id. at 1, 4. 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
disclosures and activities at issue. IAF, Tab 4 at 4-17. The agency responded to
the appellant’s submission, and he replied. IAF, Tab 8 at 6-16, Tab 9.
The administrative judge issued an initial decision, dismissing the appeal
for lack of jurisdiction. IAF, Tab 13, Initial Decision (ID) at 1, 10-11. She found
that the appellant exhausted his administrative remedies before OSC concerning
his disclosures and activities as well as his alleged personnel actions. ID at 4.
Nevertheless, with respect to the September 2014; August, November, and
December 2015; and January 2016 disclosures and activities, she found that the
appellant failed to make a nonfrivolous allegation that he made or was perceived
to have made protected disclosures, or that he engaged or was perceived to have
engaged in protected activity. ID at 4-10. Consequently, the administrative judge
did not address whether the alleged disclosures or activities contributed to the
personnel actions raised in the appeal. ID at 10.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not responded. 4
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence 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.
The appellant exhausted his administrative remedies regarding some of his
protected disclosures and activities.
As discussed above, the appellant raised before OSC his December 2015
OSC complaint, February 2017 complaint to his supervisor of a hostile work
environment, the underlying May 2018 OSC complaint, and his October 2019
OIG complaint as protected activities and disclosures. IAF, Tab 1 at 13, Tab 6
at 17, Tab 8 at 29-35. The administrative judge did not address these alleged
activities and disclosures in the initial decision. However, the appellant, who has
been represented by counsel throughout this appeal, did not raise them before the
administrative judge, with one possible exception. IAF, Tab 1 at 3. Specifically,
in his jurisdictional reply, he appears to have raised a claim that he was
suspended in March 2021, in retaliation for his May 2018 OSC complaint.
IAF, Tab 8 at 69-76, 163-64, Tab 9 at 6. However, there is no evidence
he exhausted this personnel action with OSC. IAF, Tab 1 at 12-13, 17.
The appellant does not re-raise his claim of retaliation for filing his May 2018
OSC complaint on review or otherwise allege his OSC or OIG complaints or his
February 2017 complaint of a hostile work environment led to retaliatory acts by
the agency. Therefore, we decline to address these activities and disclosures5
further. See 5 C.F.R. § 1201.115 (reflecting that the Board normally will
consider only issues raised in a petition or cross petition for review).
As to the alleged September 2014; August, November, and December 2015;
and January 2016 disclosures and activities, the parties do not dispute the
administrative judge’s findings that the appellant exhausted them, as well as the
remaining alleged personnel actions. We discern no basis to disturb those
findings here. ID at 4.
The appellant nonfrivolously alleged that he was associated with his coworker’s
November 2015 disclosure. 5
The appellant failed to nonfrivolously allege that any disclosure was
made in September 2014.
The administrative judge observed that, in connection with his coworker’s
September 2014 disclosure, the appellant alleged that he was retaliated against
based on his support of the disclosure. ID at 5-7. The appellant restates on
review that he was “perceived by the [a]gency to have participated” in this
disclosure. PFR File, Tab 1 at 6-7. In making her findings, the administrative
judge did not address the fundamental question of whether the appellant
nonfrivolously alleged that his coworker made a disclosure in September 2014.
We find that he did not. Therefore, we do not reach the issue of whether the
agency perceived the appellant to have participated in the disclosure.
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);
see 5 C.F.R. § 1201.4(s) (defining a nonfrivolous allegation as an assertion that,
if proven, could establish the matter at issue). The Board has held that
an appellant’s statements regarding his alleged protected disclosures can be so
deficient on their face that the Board will find that they fail to constitute a
5 On review, the appellant indicates that he is no longer pursuing a claim that his
December 2015 assertions of his coworker’s Weingarten rights is protected activity, and
therefore we have not addressed it here. PFR File, Tab 1 at 6 n.1. 6
nonfrivolous allegation of a reasonable belief, and thus require dismissal for lack
of jurisdiction. Huffman v. Office of Personnel Management , 92 M.S.P.R. 429,
¶ 10 (2002). For example, an appellant does not satisfy the reasonable belief
requirement if he is merely reporting unsubstantiated rumors. Id.
Although the issue here is whether the appellant nonfrivolously alleged any
disclosure was made, as opposed to whether he met the reasonable belief test,
we find the situation analogous. Here, the appellant provides no specific
information from which we can infer that his coworker actually made, or was
believed to have made, the alleged statement. He does not explain the basis for
his belief that such a statement was made. IAF, Tab 4 at 1, Tab 6 at 7-8;
PFR File, Tab 1 at 6. He describes the statement as a letter, but there is no copy
in the record. IAF, Tab 6 at 8. At times, the appellant alleges that his coworker
sent the statement to “management,” IAF, Tab 1 at 11-12, Tab 4 at 7; PFR File,
Tab 1 at 6-7, while at other times he alleges that she sent it to OIG, IAF, Tab 4
at 12, Tab 6 at 7-8. He also asserts in some places that the statement was made in
September 2014, and in others that it was made the following month. IAF, Tab 1
at 12, Tab 4 at 7, Tab 6 at 7-8; PFR File, Tab 1 at 6. Further, he both indicates
that his coworker made the statement and that it was anonymous. IAF, Tab 6
at 6; PFR File, Tab 1 at 6-7. While he submitted a statement from his coworker
in support of his appeal, she does not refer to the September 2014 disclosure.
IAF, Tab 6 at 4-5. In sum, the appellant has provided no specifics that, if true,
would establish that his coworker made a statement regarding contractor
misconduct to agency management or OIG. Therefore, we find that he has not
made a nonfrivolous allegation that she made such a disclosure.
The appellant failed to nonfrivolously allege that the agency
perceived him as making a protected disclosure regarding the
anonymous August 2015 communication.
The appellant appears to argue that management mistakenly believed that
he made the anonymous August 2015 alleged disclosure. IAF, Tab 4 at 7, Tab 67
at 8; PFR File, Tab 1 at 6. Regarding this disclosure, we agree with the
administrative judge that the appellant failed to nonfrivolously allege that he was
perceived to have made it. ID at 5-6. As indicated above, 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 the alleged protected
disclosure. Id. To establish Board jurisdiction, the appellant must nonfrivolously
allege that the agency officials who took the alleged personnel actions believed
that he made or intended to make disclosures that evidenced the type of
wrongdoing listed under 5 U.S.C. § 2302(b)(8). Id., ¶ 8. The appellant falls short
of this threshold.
A variety of fact patterns can support a finding that an individual was
perceived as a whistleblower. Id., ¶ 7. Among those fact patterns is the
“mistaken identity” theory, in which the relevant agency official thought the
appellant made protected disclosures, but the appellant did not actually do so.
Rumsey v. Department of Justice , 120 M.S.P.R. 259, ¶ 7 (2013); see Special
Counsel v. Department of the Navy , 46 M.S.P.R. 274, 276, 280-81 (1990)
(granting a stay extension request based on a claim that the relator may have been
perceived as a whistleblower because his supervisors mistakenly believed that
he made an anonymous disclosure to a hotline). In finding jurisdiction over
perceived whistleblower disclosures under the mistaken identity theory, the Board
has relied on allegations that agency officials made statements or received
information linking the appellant to the alleged disclosure. E.g., McCarthy v.
International Boundary and Water Commission , 116 M.S.P.R. 594, ¶ 33 (2011)
(finding that testimony from an agency official that he knew an appellant had
previously filed whistleblower disclosures, coupled with an email from the
appellant to the agency official that he was asserting his rights as a whistleblower
who had reported fraud, waste, and abuse, was sufficient evidence that the agency8
perceived him as a whistleblower), aff’d, 497 F. App’x 4 (Fed. Cir. 2012); Juffer
v. U.S. Information Agency , 80 M.S.P.R. 81, ¶¶ 2, 16-17 (1998) (finding
an appellant nonfrivolously alleged that an agency official perceived her as a
whistleblower based on her sworn statement that the official accused her of
sharing data, expressed that he was embarrassed by her insistence on the
correctness of her analysis of the data, and prohibited her from using the data
until it was “properly analyzed”).
The anonymous August 2015 statement alleged, among other things, that
named contractors were falsifying time sheets by taking longer lunches and
leaving the clinic without recording their absence on their timesheets, accepting
monetary gratuity from patients, not performing their job duties, sleeping in the
office “before operation hours,” and engaging in inappropriate behavior with
female patients. IAF, Tab 5 at 8. It further alleged that management was aware
of the misconduct and failed to address it. Id. The appellant has not claimed that
anyone advised management that he made the statement or that management
accused him of doing so. Instead, he appears to re -argue on review that
management believed he made or participated in the anonymous August 2015
alleged disclosure because it is “plausible” that Town Hall questions that he
posed to management that same month “could refer” to the anonymous August
2015 statement. IAF, Tab 4 at 8; PFR File, Tab 1 at 7-8. As the administrative
judge determined, this argument is unpersuasive. ID at 7.
While the focus of the anonymous August 2015 statement was alleged
contractor misconduct, IAF, Tab 5 at 8, the focus of the appellant’s Town Hall
questions primarily was how leadership planned to address poor management of
GS employees, id. at 9. For instance, the appellant questioned what was being
done to address management retaliating against GS employees, employees
receiving a “decent bonus or raise,” letting “untrained, inexperienced
management run all of [the] good workers away,” and concerns about GS workers
feeling threatened and bullied by management. Id. 9
Of the 12 Town Hall questions the appellant posed, only 1 related to
contractors. Specifically, his seventh question was as follows: “How do you
handle a situation when management forms clicks with contractors and hold gs
employees to a different standard.” Id. (capitalization and grammar as in
original). While the topic of misconduct by contractors and the agency’s
response to it are shared in both documents, and the documents are both dated
August 2015, there is nothing else to connect them. For example, while the
anonymous letter names specific contractors and points to particular types of
misconduct, the appellant’s Town Hall questions generally expresses concerns
about “clicks” between managers and contractors with no additional details;
the font of the two documents differ; one is in the form of a letter and the other is
an email; the anonymous letter is signed by a “dedicated service member” while
the appellant identified himself as nonpreference eligible on his appeal form; and
the disclosures in the anonymous letter were framed as assertions while the
appellant’s Town Hall submission was in the form of questions. IAF, Tab 1 at 1,
Tab 5 at 8-9. In short, we do not believe that the appellant has nonfrivolously
alleged any similarity between the two communications that would cause the
agency to identify them as coming from the same author.
Lastly, as the administrative judge observed, when OSC asked the appellant
if he thought the agency believed that he had sent the anonymous August 2015
statement, he responded in the negative. ID at 5-6; IAF, Tab 6 at 8. On review,
the appellant disagrees that his admission to OSC is relevant to determining the
agency’s perception that he made the statement. PFR File, Tab 1 at 9. Instead,
he argues that the agency’s perception that he is a whistleblower can be inferred
from the fact that the agency took personnel actions against him following the
statement. Id. We reject this approach, which essentially would infer knowledge
of a disclosure (or, in this case, perception that the appellant made a disclosure)
from timing. This inquiry may be relevant to the appellant’s burden to
nonfrivolously allege contributing factor, but it is not relevant to the inquiry here10
of whether the agency perceived that he made a disclosure. See Pridgen v. Office
of Management and Budget , 2022 MSPB 31, ¶ 63 (discussing proof of the
contributing factor criterion in a whistleblower reprisal claim using the
knowledge/timing test). For the reasons discussed above, we agree with the
administrative judge that the appellant failed to nonfrivolously allege that
management perceived him to have made the anonymous August 2015 statement.
The appellant failed to nonfrivolously allege that his August 2015
Town Hall questions and his January 2016 complaint of a hostile
work environment were protected disclosures.
As to his August 2015 Town Hall questions, the appellant reargues on
review that certain agency officials believed, based on those questions, that he
had made or intended to make disclosures evidencing the type of wrongdoing set
forth under 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 7-8. The administrative
judge found that his questions were vague allegations of wrongdoing over
imprecise matters and that the appellant failed to nonfrivolously allege that he
either made or was perceived to have made a protected disclosure. ID at 7-8.
Disclosures must be specific and detailed, not vague allegations of wrongdoing
regarding broad or imprecise matters. Mc Corcle v. Department of Agriculture ,
98 M.S.P.R. 363, ¶¶ 18, 21 (2005). We agree with the administrative judge.
As we previously touched on above, in the email containing his Town Hall
questions, the appellant asked how the agency would address poor management,
management retaliating against GS employees, employees receiving a “decent
bonus or raise,” management forming “clicks” with contractors but holding GS
employees to a different standard, letting “untrained, inexperienced management
run all of [the] good workers away,” and concerns about GS workers feeling
threatened and bullied by management. IAF, Tab 5 at 9. He argues that his
questions amount to allegations that management was utilizing threats to secure
employee compliance and allowing contractors to engage in fraud. PFR File,11
Tab 1 at 7-8. However, the appellant did not state any specific facts that could
evidence such wrongdoing.
On review, the appellant reargues that the hospital Director’s response to
his Town Hall questions, “acknowledging that [his] questions are areas which
would create risk for the organization and . . . are downright against many federal
labor laws,” was sufficient evidence that he made or at least was perceived to
have made a protected disclosure. PFR File, Tab 1 at 8. On the alleged facts
here, we disagree that the Director’s response to the appellant’s questions
demonstrates that she perceived him to be making a protected disclosure.
Specifically, she invited the appellant to meet with her and stated as follows:
“There are a few comments below which would require more information as they
certainly are areas which would create risk for the organization and some are
downright against many federal labor rules.” IAF, Tab 5 at 13. When the
appellant declined to provide more information for fear of retaliation, the Director
explained as follows: “I cannot assist or answer your questions without
understanding the issues.” Id. at 14. She then “encourage[d]” him to contact the
agency’s OIG as an “anonymous complainant.”6 Id. The appellant does not
argue, nor does he present evidence, that he followed up with OIG or that the
Director believed he did so. Further, the agency denies that his coworker or an
6 Prior to December 12, 2017, the whistleblower protection statutory scheme provided
that “cooperating with or disclosing information to the Inspector General of an agency,
or the Special Counsel, in accordance with applicable provisions of law,” is protected.
Edwards v. Department of Labor , 2022 MSPB 9, ¶ 29, aff’d, No. 2022-1967, 2023 WL
4398002 (Fed. Cir. July 7, 2023); see 5 U.S.C. § 2302(b)(9)(C). Section 1097(c)(1) of
the National Defense Authorization Act of 2018 (NDAA), Pub. L. No. 115-91, 131 Stat.
1283 (2017), amended section 2302(b)(9)(C) to provide that, in addition to the
Inspector General of an agency or the Special Counsel, a disclosure to “any other
component responsible for internal investigation or review” is also protected. In
Edwards, the Board found that this amendment is not retroactive. Edwards,
2022 MSPB 9, ¶¶ 29-30. Thus, because the appellant’s August 2015 communications
with the Director occurred prior to the 2018 NDAA’s enactment, the Board need not
consider whether it could constitute protected activity under 5 U.S.C. § 2302(b)(9)(C). 12
anonymous source filed a complaint with OIG from 2014 to July 2017, “regarding
contractor behavior” in the appellant’s department. IAF, Tab 8 at 10-11.
The appellant also challenges the administrative judge’s finding that his
January 2016 disclosure to his supervisor that he was “working in a stressful and
hostile environment” because his supervisor was acting aggressively towards him
was vague and conclusory. IAF, Tab 1 at 13; ID at 9-10; PFR File, Tab 1 at 9-10.
He argues that the administrative judge erroneously considered only his
January 2016 disclosure and not his examples of harassment when assessing
whether he nonfrivolously alleged a protected disclosure. PFR File, Tab 1
at 9-10. We are not persuaded.
Protected whistleblowing takes place when an appellant made disclosures
that he reasonably believed 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. King v. Department of Veterans
Affairs, 105 M.S.P.R. 21, ¶ 13 (2007). An appellant’s broad and imprecise
assertions that he is being harassed and subjected to a stressful work environment
fail to set forth allegations of wrongdoing under 5 U.S.C. § 2302(b)(8). See Carr
v. Department of Defense , 61 M.S.P.R. 172, 181 (1994). According to the
appellant, he disclosed to agency “management that his supervisor was fostering a
hostile work environment.” IAF, Tab 4 at 8, Tab 5 at 4. He repeats this
description of his disclosure on review. PFR File, Tab 1 at 6. He argues that his
allegations to OSC of personnel actions occurring before and after this alleged
disclosure provide the specific examples of harassment that were missing from
the disclosure itself. Id. at 10-11 (citing IAF, Tab 1 at 12-13, Tab 6 at 14-18).
We agree with the administrative judge that the appellant failed to
nonfrivolously allege that he made a disclosure to his supervisor that he
reasonably believed evidenced wrongdoing under 5 U.S.C. § 2302(b)(8). As the
appellant argues, he provided OSC with a timeline of the events preceding and
following his January 2016 statement to his supervisor. IAF, Tab 1 at 12-13.13
He also amended his OSC complaint to add a number of personnel actions,
most of which occurred on unspecified dates, or in 2019 and 2020. IAF, Tab 6
at 14-18. Assuming the appellant’s supervisor was involved in the alleged
incidents preceding January 2016, for example, denying the appellant an upgrade
in October 2014, and attempting “to induce” him to attend a meeting as his
coworker’s sole union representative, the appellant has not explained why a
reasonable person in his position would believe that his supervisor should have
connected these events to the appellant’s January 2016 statement. See King,
105 M.S.P.R. 21, ¶ 14 (concluding that an appellant’s bare allegations of patient
neglect and abuse and making false statements to the OIG were insufficient to
determine whether she made a nonfrivolous allegation that her disclosures were
protected). Thus, we discern no basis to disturb the administrative judge’s
finding.7
The appellant nonfrivolously alleged that the agency associated him
with his coworker’s November 2015 protected disclosure.
On November 24, 2015, the appellant’s coworker sent an agency Service
Chief for Contract Support an email from her official Government email account
alleging that a named contractor was acting unprofessionally by playing video
games and sleeping at work. IAF, Tab 4 at 7, Tab 5 at 10-12. In the email, a
copy of which is in the record, the appellant’s coworker indicated that “civilian
employees have informed management several times of [the contractor’s]
unprofessionalism.” IAF, Tab 5 at 10. She further stated that the Chief of Fort
Belvoir Community Hospital’s Department of Co-Occurring Partial
Hospitalization (COOPH) “sits across the hall from the office that the contractors
7 There is some indication in the record that the appellant believed that his hostile work
environment claim was due to discrimination or reprisal for equal employment
opportunity (EEO) activity. IAF, Tab 6 at 17, Tab 8 at 166-67. If so, the appellant’s
disclosure of a hostile work environment generally would not be within the scope of the
Board’s IRA jurisdiction unless he also sought to remedy reprisal for whistleblowing.
See Edwards, 2022 MSPB 9, ¶¶ 10, 20, 22, 24-25. The appellant did not expand on the
potential connection to an EEO claim, other than to state that he “met with EEO.” IAF,
Tab 6 at 17. 14
work out of and you can walk down the hall and here [sic] them playing videos on
their computers with provocative and profane language on it.” Id. She identified
the appellant as a witness “to this behavior.” IAF, Tab 5 at 10, Tab 6 at 7.
She included with her email a picture purporting to show the contractor asleep at
his desk and alleged that he was “looking at movies, cheating on his time sheets,
[and] crossing the line with female patients.” IAF, Tab 5 at 12.
The administrative judge did not make a finding as to whether, if the
underlying facts of the November 2015 disclosure were true, a reasonable person
would believe they evidenced wrongdoing under 5 U.S.C. § 2302(b)(8). We find
that the appellant nonfrivolously alleged that a reasonable person in his position
or that of his coworker could reasonably believe that the agency was tolerating
the named contractor’s behavior of playing video games and sleeping on duty.
Further, if true, these allegations would evidence Government wrongdoing. See
Grubb v. Department of the Interior , 96 M.S.P.R. 377, ¶ 26 (2004) (concluding
that time and attendance abuse is a violation of law, rule, or regulation); see also
Johnson v. Department of Health and Human Services , 93 M.S.P.R. 38, ¶ 11
(2002) (determining that an appellant’s disclosures of his reasonable belief that
agency officials ignored contract violations and irregularities that cost the
Government thousands of dollars, and also ignored a contractor’s hiring of
undocumented aliens, were protected disclosures of wrongdoing that implicated
the Government’s interests and reputation). Therefore, we find that the appellant
has nonfrivolously alleged that his coworker made a protected disclosure in
November 2015.
The appellant alleged below, and reasserts on review, that the agency
perceived him as assisting a coworker in making this disclosure. IAF, Tab 4 at 7;
PFR File, Tab 1 at 6, 8-9. The administrative judge below found that the
appellant’s association as a “supporter” of his coworker was not a basis for Board
jurisdiction. ID at 6. We disagree. 15
The whistleblower reprisal statutory scheme prohibits an agency from
taking a personnel action against one person because of his relationship with
another employee who has made a protected disclosure. Burrowes v. Department
of the Interior, 54 M.S.P.R. 547, 550-51 (1992); see Duda v. Department of
Veterans Affairs , 51 M.S.P.R. 444, 446-47 (1991) (finding the Whistleblower
Protection Act prohibits agencies from taking personnel actions against an
employee because of his or her relationship with another employee who made a
protected disclosure). An appellant may establish IRA jurisdiction on the basis
that he is closely associated with someone who made a disclosure protected under
5 U.S.C. § 2302(b)(8). See Mercer v. Department of Health and Human Services ,
82 M.S.P.R. 211, ¶ 9 (1999). Therefore, the administrative judge’s determination
that the appellant could not establish jurisdiction on this basis was in error.
Further, we find that the appellant has nonfrivolously alleged the agency
closely associates him with his coworker. The appellant is named as a witness to
the contractor’s misconduct in his coworker’s email. IAF, Tab 5 at 10. Further,
his coworker identified herself in the disclosure as a union steward, a position the
appellant also held. IAF, Tab 5 at 10, Tab 6 at 10. Additionally, the appellant
indicated he had represented his coworker in his capacity as a steward in
September 2015, just 2 months prior to her disclosure. IAF, Tab 6 at 4-5, 10 -11.
In Duda, 51 M.S.P.R. at 445-47, the Board found that an appellant established
jurisdiction over his fiancée’s disclosures regarding the appellant’s supervisor,
which he alleged resulted in his termination. We conclude that the appellant’s
shared role as a union steward, his representation of his coworker, and the fact
that he was named in the disclosure are sufficient to establish jurisdiction over
the November 2015 disclosure.
The appellant nonfrivolously alleged that his coworker’s November 2015
disclosure was a contributing factor in his December 2015 reassignment.
The administrative judge did not make findings as to whether the appellant
nonfrivolously alleged that the November 2015 disclosure was a contributing16
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. Pridgen, 2022 MSPB 31, ¶ 63.
The Board has held that a personnel action taken within approximately 1 to
2 years of an appellant’s disclosures satisfies the timing portion of the
knowledge/timing test. Id. The appellant alleges that the November 2015 email
caused the agency to reassign him to a receptionist position in December 2015,
and decrease his performance evaluations thereafter. PFR File, Tab 1 at 9; IAF,
Tab 4 at 12, 16, Tab 5 at 5. The agency agrees that the appellant was reassigned
following his coworker’s disclosure. IAF, Tab 8 at 13. A reassignment is a
personnel action. 5 U.S.C. § 2302(a)(2)(A). 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 reassignment.
We also conclude that the appellant nonfrivolously alleged that one of the
individuals involved in the decision to reassign him had knowledge of his
coworker’s disclosure. The Contract Support Service Chief responded to his
coworker’s November 2015 email the following day, stating that she had referred
the matter to the “COR,” who would in turn “address the issue with the
department chief.” IAF, Tab 5 at 10. Based on the context, it appears that the
“department chief” was the COOPH Chief, who the appellant’s coworker alleged
tolerated the contractor’s behavior. Id. Although the appellant did not
specifically allege who the COOPH Chief was, we find that the email reflecting
the intent of Contract Support Service Chief to ensure that the COOPH Chief was17
aware of the disclosure is sufficient to constitute a nonfrivolous allegation that
the COOPH Chief learned of the disclosure shortly after it was made. See
Duggan v. Department of Defense , 484 F. App’x 533, 540 (Fed. Cir. 2012)
(stating that an agency’s official’s knowledge of a protected disclosure “may be
inferred from the facts of the case”);8 see also Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶ 6 (observing that any doubt or ambiguity as to whether
the appellant made nonfrivolous jurisdictional allegations should be resolved in
favor of finding jurisdiction).
In cases such as this one, when the appellant has alleged multiple personnel
actions, 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. On remand, the
administrative judge should make findings as to whether the appellant has met his
burden to nonfrivolously allege that the November 2015 disclosure was a
contributing factor in any other exhausted personnel actions and, if so, adjudicate
those matters on the merits as well.
8 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court’s reasoning persuasive, as we find here regarding the
Duggin decision. See Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513, ¶ 12 (2011 ).18
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 | McElhaney_Michael_DC-1221-21-0439-W-1__Remand_Order.pdf | 2024-04-10 | MICHAEL MCELHANEY v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-21-0439-W-1, April 10, 2024 | DC-1221-21-0439-W-1 | NP |
1,827 | https://www.mspb.gov/decisions/nonprecedential/Lynn-Pryor_KelleySF-0752-18-0639-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KELLEY LYNN-PRYOR,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-18-0639-I-1
DATE: April 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Mount Pleasant, South Carolina, for the appellant.
Douglas W. Frison , Esquire, APO, APO/FPO Pacific, 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 removal. For the reasons set forth below, the appellant’s petition for
review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant filed the instant appeal challenging her removal, effective
June 14, 2018, from her position as a teacher at an elementary school in the
Department of Defense Education Activity, Pacific South District. Initial Appeal
File (IAF), Tab 1 at 8-37, Tab 5 at 19, 42-45. The appellant raised several
affirmative defenses. IAF, Tab 24 at 8-9. After a hearing, the administrative
issued an initial decision that sustained all of the charges, found that the appellant
did not prove any of her affirmative defenses, and affirmed the removal. Hearing
Compact Diskettes; IAF, Tab 29, Initial Decision (ID). The initial decision
contained a notice that the decision would become final on December 4, 2018,
unless a petition for review was filed by that date. ID at 27.
The appellant requested a 30-day extension of time to file a petition for
review, which the Office of the Clerk of the Board granted. Petition for Review
(PFR) File, Tabs 1-2. The new deadline for filing the petition for review was
January 3, 2019. PFR File, Tab 2 at 1. Due to the partial shutdown of the
Federal government, the Board ceased operations from December 22, 2018,
through January 25, 2019. PFR File, Tab 4 at 1. Pursuant to the Board’s
December 21, 2018 press release, the deadline to file a petition for review was
extended by the number of calendar days of the shutdown. Id. Thus, the
appellant’s deadline for filing her petition for review was extended an additional
35 days, to February 7, 2019.
However, the appellant did not file a petition for review until February 27,
2019. PFR File, Tab 3. The Clerk’s Office informed the appellant that her
petition for review appeared to be untimely filed and afforded her 15 days to file
a motion to accept the petition as timely or to waive the time limit for good cause.
PFR File, Tab 4 at 1. The appellant has not filed any such motion. The agency
has requested that the petition for review be dismissed as untimely filed. PFR
File, Tab 5. 2
DISCUSSION OF ARGUMENTS ON REVIEW
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. Palermo v. Department of
the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). As the appellant
and her representative are registered e-filers, IAF, Tabs 8, 16, they are deemed to
have received the initial decision on the date of the electronic submission, here,
October 30, 2018, IAF, Tab 30; 5 C.F.R. § 1201.14(m)(2) (2018). Even
considering the appellant’s request for an extension that was granted by the
Clerk’s Office and the extension that resulted from the partial shutdown of the
Federal government, the appellant was required to file her petition for review on
or before February 7, 2019. Thus, her February 27, 2019 petition for review was
20 days late.
The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4;
5 C.F.R. §§ 1201.113(d), 1201.114(f). The party who submits an untimely
petition for review has the burden of establishing good cause for the untimely
filing by showing that she exercised due diligence or ordinary prudence under the
particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To
determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of her excuse and the party’s 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. Id.
Applying these factors, we find that the appellant has not shown good
cause for the delay in filing her petition for review. The appellant was3
represented on review and the 20-day delay in this case was significant. See
Reaves v. Department of Veterans Affairs , 92 M.S.P.R. 352, ¶ 8 (2002) (finding
that an 18-day delay in filing a petition for review was significant). Although the
Clerk’s Office afforded the appellant an opportunity to show good cause for the
untimely filing, PFR File, Tab 4 at 1, she has not articulated any reason for the
delay in filing her petition for review, and she failed to respond to notice on the
untimeliness of her petition for review from the Clerk’s Office. See Bell v.
Department of Homeland Security , 112 M.S.P.R. 33, ¶ 8 (2009) (dismissing a
petition for review as untimely filed without a showing of good cause for the
delay when the pro se appellant failed to respond to the Clerk’s Office’s notice or
otherwise demonstrate good cause for the delay). Moreover, the appellant’s
petition for review, which challenges the administrative judge’s findings and
conclusions in the initial decision, does not establish good cause for her untimely
filing. PFR File, Tab 3; see Wright v. Department of the Treasury , 113 M.S.P.R.
124, ¶ 7 (2010) (finding that the appellant’s assertions regarding the merits of a
case do not establish good cause for an untimely filed petition for review). Thus,
the appellant has failed to show that she exercised due diligence or ordinary
prudence in this case that would warrant a finding of good cause for the delay in
filing her petition for review.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the removal appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Lynn-Pryor_KelleySF-0752-18-0639-I-1__Final_Order.pdf | 2024-04-10 | null | SF-0752-18-0639-I-1 | NP |
1,828 | https://www.mspb.gov/decisions/nonprecedential/Ikossi_KikiDC-0752-17-0357-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIKI IKOSSI,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-17-0357-I-2
DATE: April 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John J. Rigby , Esquire, Arlington, Virginia, 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 initial decision, which
affirmed her removal for misconduct. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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).
2
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 correct typographical errors in the initial decision, to clarify the
analysis of the appellant’s retaliation claim, to consider additional mitigating
factors in the penalty analysis, and to address the appellant’s additional
arguments on review, we AFFIRM the initial decision.
BACKGROUND
The appellant was a Physical Scientist for the agency. Ikossi v. Department
of Defense, MSPB Docket No. DC-0752-17-0357-I-1, Initial Appeal File (IAF),
Tab 1 at 15. Effective February 6, 2017, the agency removed her after 18 years
of Government service based on 2 charges: (1) conduct unbecoming a Federal
employee; and (2) failure to follow instructions. Id. at 11-12; IAF, Tab 4
at 16-17. The conduct unbecoming charge was supported by six specifications
based on the appellant’s alleged rude, uncooperative, and unprofessional behavior
when her supervisor and agency staff attempted to assist her with the following
matters: reducing the size of her electronic mailbox; syncing her new computer;
and her requests for reasonable accommodation and for leave under the Family
and Medical Leave Act of 1993 (FMLA). IAF, Tab 1 at 11-12. The failure to
follow instructions charge was supported by one specification alleging that the
appellant failed to follow her supervisor’s instruction directing her to sync her
computer and turn in her old computer by May 13, 2016. Id. at 12.
3
The appellant filed an appeal with the Board challenging her removal and
alleging retaliation for her equal employment opportunity (EEO) activity. IAF,
Tab 1 at 4, 6. The appeal was dismissed without prejudice and timely refiled.
IAF, Tab 25; Ikossi v. Department of Defense , MSPB Docket No. DC-0752-17-
0357-I-2, Refiled Appeal File (RAF), Tab 1. After holding a 2-day hearing, the
administrative judge issued an initial decision affirming the removal action.
RAF, Tab 17, Initial Decision (ID). The administrative judge found that the
agency proved both charges and all of the specifications. ID at 24-25. He also
found that the appellant failed to prove that her EEO activity was a motivating
factor in the agency’s removal decision. ID at 30. The administrative judge
further found that the removal penalty was reasonable under the circumstances
and promoted the efficiency of the service. ID at 30-34.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has filed a response in opposition to the petition for
review, and the appellant has filed a reply to the agency’s response. PFR File,
Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge should have
merged charge 2 with charge 1, specification 6. PFR File, Tab 3 at 5. She also
argues that the administrative judge made several factual errors in the initial
decision and that his penalty analysis was flawed. Id. at 6-22. For the reasons
stated below, we find that the appellant’s arguments on review present no basis
for reversing the initial decision.
The agency proved its charges.
An agency must prove its charges in a chapter 75 adverse action appeal by
preponderant evidence, i.e., 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. See 5 U.S.C. § 7701(c)(1)
4
(B); 5 C.F.R. § 1201.4(q). On review, the appellant does not dispute that she
committed the acts specified in charge 1. For the reasons stated in the initial
decision, we therefore find that the administrative judge correctly sustained all
six specifications of the conduct unbecoming charge. ID at 2-24.
On review, the appellant argues that the administrative judge should have
merged charge 2 with specification 6 of charge 1 because the underlying facts are
the same and the specifications are almost identical. PFR File, Tab 3 at 5. The
Board will merge charges if they are based on the same conduct and proof of one
charge automatically constitutes proof of the other charge. Shiflett v. Department
of Justice, 98 M.S.P.R. 289, ¶ 5, review dismissed , 139 F. App’x 261 (Fed. Cir.
2005). In specification 6 of charge 1, the agency stated that the appellant
engaged in conduct unbecoming a Federal employee when she refused her
supervisor’s May 11, 2016 request to schedule a time with the information
resources department to sync her new computer and return her old computer, and
directed her supervisor to put his request in writing. IAF, Tab 1 at 12. In charge
2, the agency specified that the appellant failed to follow her supervisor’s May
11, 2016 instruction to sync her new computer and turn in her old computer by
May 13, 2016. Id. Even assuming that merger was appropriate in this case, we
find that the appellant’s argument provides no basis for reversing the
administrative judge’s decision to sustain the charge because the appellant does
not dispute that she failed to follow instructions as specified in the charge. ID
at 25; see Shiflett, 98 M.S.P.R. 289, ¶ 12 (observing that the merger of 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). We further
find that merger would not affect the penalty because, inter alia, in selecting the
penalty of removal, the agency’s deciding official did not separately consider the
second charge to enhance the penalty. See Childs v. U.S. Postal Service ,
67 M.S.P.R. 348, 356 (1995).
5
On review, the appellant also argues that the initial decision is “a work of
fiction” because the administrative judge made a number of factual errors.
PFR File, Tab 3 at 9. For example, she argues that the administrative judge
incorrectly referred to the deciding official as “she” even though he is male. Id.
She also argues that the administrative judge relied on made-up testimony on
page 28 of the initial decision because he referred to the testimony of her former
supervisor, Dr. Hannan, who did not testify at the hearing. Id. at 7. The
appellant further asserts that, on page 27 of the initial decision, the administrative
judge referred to the testimony of “Richard Hann” but that name is not on the
approved witness list. Id. at 8; RAF, Tab 12 at 7. The appellant acknowledges
that Dr. Ronald Hann testified at the hearing, but she rejects the possibility that
the administrative judge was actually referring to his testimony on the
above-referenced pages in the initial decision. PFR File, Tab 3 at 8-9. We
disagree.
Based on our review of the recorded hearing testimony of Dr. Ronald Hann,
we find that the administrative judge incorrectly referred to Dr. Hann as
“Hannan” and as “Richard Hann” on pages 27-28 of the initial decision, although
he accurately summarized the substance of Dr. Hann’s testimony. RAF, Tab 16
(testimony of Dr. Hann). The administrative judge incorrectly referred to
Hannan’s testimony about “Hann’s decision” on page 28 of the initial decision
when, in fact, he was summarizing Dr. Hann’s testimony about a decision made
by the proposing official, Dr. Richard Schoske.2 ID at 28; RAF, Tab 16
(testimony of Dr. Hann). The administrative judge also incorrectly used feminine
pronouns in reference to the male deciding official in the initial decision. ID
at 32-33. We nonetheless find that the typographical errors identified by the
appellant on review are not substantive and do not warrant reversing the initial
decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
2 The proposing official was the appellant’s supervisor at the time of the charged
misconduct. IAF, Tab 1 at 9-14.
6
(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).
The appellant failed to prove her affirmative defense of retaliation for EEO
activity.
The appellant claimed that the agency’s removal action was taken in
retaliation for her protected EEO activity. IAF, Tab 1 at 6; RAF, Tab 12 at 2-3,
6-7. The administrative judge found that the appellant failed to prove by
preponderant evidence that her EEO activity was a motivating factor in her
removal. ID at 30. The record shows that some of her underlying EEO activity
involved claims of discrimination based on national origin, sex, and age. IAF,
Tab 4 at 10, Tab 15 at 20. To prove an affirmative defense of retaliation for such
Title VII EEO activity, the appellant must show that retaliation was a motivating
factor in the agency’s decision.3 Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 19-21, 30. An appellant may prove her claim by an
combination of direct or indirect evidence, including suspicious timing,
statements, or actions by agency officials from which an inference of
discrimination might be drawn, evidence concerning the agency’s treatment of
similarly situated individuals outside the appellant’s protected class, and evidence
that the agency’s stated reasons for the action were pretextual, Id. ¶ 24. In his
initial decision, the administrative judge set forth the evidentiary framework for
both a claim of EEO retaliation and a claim of retaliation for non-EEO, non-
3 Some of the appellant’s EEO activity may have involved her requests for reasonable
accommodation and her claims of disability discrimination. IAF, Tab 5 at 16. Such
claims arise under the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355,
which incorporates the standards for determining whether there has been a violation of
the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat.
327, as amended by the ADA Amendments Act of 2008 (ADAAA), Pub. L. No.
110-325, 122 Stat. 3553. See 29 U.S.C. § 791(f); 29 C.F.R. § 1614.203(b). A more
stringent but-for causation standard applies to claims of retaliation for engaging in
activity protected by the Rehabilitation Act. See Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 46-47. Because the appellant has failed to meet the less
stringent motivating factor standard, she would necessarily fail to meet the but-for
standard.
7
whistleblowing activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii). ID
at 25-26; see Pridgen, 2022 MSPB 31, ¶ 32. It is therefore unclear which
evidentiary framework the administrative judge applied. We modify the initial
decision to clarify that, when considered under the standard and framework set
forth in Pridgen, the appellant did not prove her claim of retaliation. Pridgen,
2022 MSPB 31, ¶ 32.
As part of his analysis of the retaliation claim, the administrative judge
made an explained finding that the appellant failed to prove that her EEO activity
was a motivating factor in the agency’s removal decision. ID at 30. In particular,
the administrative judge credited the testimony of the proposing and deciding
officials concerning their knowledge of the appellant’s EEO complaints and the
nondiscriminatory factors they considered in the removal action. ID at 26-30.
The administrative judge also considered the evidence as a whole and credited the
testimony of numerous witnesses with no motive to fabricate in finding that the
agency’s stated reasons for the appellant’s removal were not pretext.4 Id. We
have considered the appellant’s general claim of “disparate treatment” and her
references to her EEO case in her petition for review. E.g., PFR File, Tab 3
at 18-21, Tab 6 at 11-12, 17-18. The appellant identifies nothing on review that
would cause us to revisit the administrative judge’s conclusions on this issue.5
See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002)
(holding that the Board must defer to an administrative judge’s credibility
4 Although the administrative judge referenced the distinction between direct and
circumstantial evidence, ID at 25-26, there is no indication that he improperly
disregarded or discounted any evidence because it was indirect or circumstantial, ID
at 26-30, and we find that he properly considered the evidence as a whole in finding
that the appellant failed to show that her EEO activity was a motivating factor in her
removal, see Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647, ¶¶ 28-31
(2016), clarified by Pridgen , 2022 MSPB 31, ¶¶ 23-24.
5 We find that the initial decision gave the appellant sufficient notice of the core issue
to allow her to contest the administrative judge’s material findings on petition for
review had she so desired. See Sabio v. Department of Veterans Affairs , 124 M.S.P.R.
161, ¶ 6 n.2 (2017).
8
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so) . We
therefore affirm the administrative judge’s conclusion that the appellant failed to
prove her affirmative defense of EEO retaliation.
The agency’s choice of penalty is reasonable. 6
When the Board sustains an agency’s charges, it will defer to the agency’s
penalty determination unless the penalty exceeds the range of allowable
punishment specified by statute or regulation, or unless the penalty is so harsh
and unconscionably disproportionate to the offense that it amounts to an abuse of
discretion. Saiz v. Department of the Navy , 122 M.S.P.R. 521, ¶ 5 (2015).
Mitigation of an agency-imposed penalty is appropriate only when the agency
failed to weigh the relevant factors or the agency’s judgment clearly exceeded the
limits of reasonableness. Id. The Board will independently weigh the relevant
factors only if the deciding official failed to demonstrate that he considered any
specific, relevant mitigating factors before deciding on a penalty. Id.
The administrative judge found that the deciding official properly
considered the relevant factors set forth in Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305-06 (1981), and the removal penalty was reasonable.
ID at 33. On review, the appellant argues that the deciding official should have
considered her Major Depressive Disorder and constant pain as mitigating factors
and mitigated the removal penalty to a suspension. PFR File, Tab 3 at 10-12,
16-22. We agree that the deciding official should have given the appellant’s
medical conditions more consideration as mitigating factors, and therefore we
6 The appellant has not challenged, and we find no reason to disturb, the administrative
judge’s explained finding that the agency proved nexus between the charged misconduct
and the efficiency of the service because the appellant’s failure to follow instructions
and her disruptive interactions with her supervisor, coworkers, and Information
Technology service personnel directly related to her ability to accomplish her duties.
ID at 30-31.
9
modify the initial decision to independently reweigh the mitigating factors in the
penalty determination.
Although the deciding official is not required to show that he considered all
the mitigating factors, evidence that an employee’s medical condition or mental
impairment played a part in the charged misconduct can be entitled to
considerable weight as a mitigating factor. See Saiz, 122 M.S.P.R. 521, ¶ 5;
Woebcke v. Department of Homeland Security , 114 M.S.P.R. 100, ¶ 15 (2010),
overruled on other grounds by Singh v. U.S. Postal Service , 2022 MSPB 15,
¶¶ 9-18. The deciding official testified that he took into account the appellant’s
responses to the proposed removal, which referred to her medical conditions and
mental impairments, but he considered her years of Federal service as the only
mitigating factor in the penalty analysis. RAF, Tab 15 (testimony of R.W.); IAF,
Tab 4 at 16, 21.
The appellant’s Major Depressive Disorder and constant pain is undisputed.
She asserts that she has been in constant pain since late 2014 and submitted a
physician’s letter stating that her chronic pain condition may result in perceived
irritability and impatience. PFR File, Tab 3 at 11; RAF, Tab 11 at 56. She also
submitted evidence and argument that her Major Depressive Disorder was related
to and exacerbated by workplace stress. PFR File, Tab 3 at 11; RAF, Tab 11
at 44. We find that her medical or mental conditions may have intensified her
emotional reactions in meetings and interactions with agency employees and are
entitled to some weight as mitigating factors. However, 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. Woebcke, 114 M.S.P.R. 100, ¶ 15.
Here, the record does not contain evidence that the appellant’s medical condition
or mental impairment has been remedied or controlled, and this was her third
disciplinary action for similar misconduct. ID at 33; RAF, Tab 15 (testimony of
10
the deciding official). We therefore find that the weight of this mitigating factor
is not significant and does not warrant reversing the agency’s removal decision.
We have also considered the appellant’s argument that the deciding official
incorrectly weighed as neutral the evidence she submitted under Douglas factor
11, which includes evidence of “unusual job tensions, personality problems,
mental impairment, harassment, or . . . provocation on the part of others involved
in the matter.” PFR File, Tab 3 at 16-17. For example, the appellant argues that
the deciding official should have considered, as additional mitigating factors,
alleged abuse and harassment by management’s alleged attempts to terminate her
while she pursued a prior EEO case. PFR File, Tab 6 at 9-11. The appellant also
refers to an incident involving a former supervisor who told her to shut up during
a meeting in 2014, which was 3 years before the instant removal action.
PFR File, Tab 3 at 18; IAF, Tab 5 at 14. The appellant raised these issues in her
responses to the proposed removal action, and the deciding official considered
them. IAF, Tab 4 at 16-17, Tab 6 at 16-19, Tab 7 at 10-11. However, there is no
indication that any of the agency officials involved in the alleged abuse and
harassment were involved in the incidents underlying the charged misconduct in
this case or had any input into the agency’s removal action. We find that the
appellant’s arguments on review present no basis to disturb the initial decision.
We have also considered the appellant’s disparate penalty argument on
review. During the pendency of the petition for review, the Board clarified that,
when analyzing disparate penalty claims, the universe of potential comparators
should be limited to those employees whose misconduct and/or other
circumstances closely resemble those of the appellant. Singh, 2022 MSPB 15,
¶ 13. The Board held that disparate penalty analysis should not extend beyond
the same or similar offenses, and that the Board should not weigh the relative
seriousness of various offenses to determine if employees who committed
different acts of misconduct were treated differently. Id., ¶ 17. Instead, the
11
relevant inquiry is whether the agency knowingly and unjustifiably treated
employees who engaged in the same or similar offenses differently. Id., ¶ 14.
As proof of disparate penalty, the appellant argues that the agency failed to
discipline management officials who discriminated and retaliated against her.
PFR File, Tab 6 at 18. Specifically, she asserts that her supervisor told her “to
‘shut up’ in a meeting about her reasonable accommodation request when she
accused him of discrimination.” Id. We agree with the administrative judge’s
determination that the statement attributed to the appellant’s supervisor is not
comparable to the charges against the appellant. RAF, Tab 7 at 1 (referencing
RAF, Tab 5 at 8-9); ID at 15-16. The administrative judge noted that the
supervisor was counseled about his statement, ID at 15, and we find that, given
the lack in similarity in the conduct, the lack of further disciplinary action against
the supervisor does not warrant mitigation of the appellant’s removal based on a
disparate penalty theory. The appellant also asserts that two agency employees
with no prior discipline received lesser penalties for serious conduct unbecoming
a Federal employee based on sexual harassment and drunk and disorderly
conduct. PFR File, Tab 3 at 13. We find that the appellant has not shown that
there is enough similarity between both the nature of the misconduct and other
relevant factors to lead a reasonable person to conclude that the agency treated
similarly situated employees differently. See Singh, 2022 MSPB 15 , ¶¶ 14, 17.
Moreover, the deciding official testified that he reviewed the agency’s
Table of Penalties, which provided that the removal penalty was within the range
of penalties for a third offense of conduct unbecoming a Federal employee. RAF,
Tab 15 (testimony of the deciding official). The appellant, through her attorney
representative, did not question the deciding official about cases involving
alleged comparators.7 ID at 33 n.6. We therefore find that the appellant has not
7 The administrative judge noted that the appellant called the Acting Head of the Human
Resources department as a witness to advance her claim that the penalty imposed was
unfair. But the witness testified that she had no personal knowledge of the prior cases
the appellant asked about. ID at 33 n.6.
12
shown that the agency knowingly and unjustifiably treated employees who
engaged in the same or similar offenses differently. See Singh, 2022 MSPB 15,
¶ 14.
The appellant argues that the agency’s failure to retain employee discipline
records prior to 2013 prevented her from proving her claim of disparate penalty,
and that the administrative judge was required to make an adverse inference
against the agency for allegedly destroying documents relating to the discipline of
employees prior to 2013. PFR File, Tab 3 at 14, Tab 6 at 15-16. We disagree.
The administrative judge noted that the Acting Head of the Human Resources
Department testified that the agency has a records retention policy of 4 to 7 years.
ID at 33 n.6. Thus, the appellant has not shown that the agency violated its
records retention policy, even assuming that it did not retain employee
disciplinary records for more than 4 years before her removal in 2017. PFR File,
Tab 6 at 14-15. In support of her argument that the agency was required to retain
5 years of employee discipline documentation, the appellant cites a
nonprecedential decision about a discovery dispute. PFR File, Tab 6 at 14 (citing
Marquand v. Department of Defense , 123 M.S.P.R. 490 (2016) (Table)).
However, the Board is not bound by nonprecedential decisions, and the Marquand
decision does not stand for the proposition asserted by the appellant.
Based on our independent review of the record and the relevant Douglas
factors, we find that the mitigating factors are outweighed by the seriousness of
the appellant’s repeated misconduct. Among the pertinent Douglas factors are the
nature and seriousness of the offense, the appellant’s past disciplinary and work
record, the consistency of the penalty imposed with those imposed upon other
employees for the same or similar misconduct, her potential for rehabilitation,
mitigating circumstances, and the adequacy and effectiveness of alternative
sanctions to deter such conduct in the future by the appellant and others.
See Douglas, 5 M.S.P.R. at 305-06. The deciding official considered as
aggravating factors the appellant’s prior suspensions in 2014 and 2015 for
13
discourtesy toward her supervisor and for failure to follow instructions. IAF,
Tab 1 at 12-20. The deciding official also considered that the appellant received
a Letter of Counseling about proper professionalism in 2016, but her behavior
continued to decline. IAF, Tab 1 at 12, 16; RAF, Tab 15 (testimony of the
deciding official). We agree with the deciding official that the appellant’s
potential for rehabilitation is poor and an alternate sanction is unlikely to deter
similar misconduct in the future. RAF, Tab 15 (testimony of the deciding
official). We therefore find that the appellant’s psychological impairment and
medical conditions, coupled with more than 18 years of service, do not outweigh
the significant aggravating factors in this case. We also find that the removal
penalty is consistent with prior Board decisions, which have upheld removal as a
reasonable penalty for the offenses of conduct unbecoming a Federal employee
and failure to follow instructions.8 We therefore conclude that removal is a
reasonable penalty for the sustained charges.
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
8 See Beaudoin v. Department of Veterans Affairs , 99 M.S.P.R. 489, ¶ 19 (finding that
disrespectful or insolent conduct toward a supervisor is a serious offense in affirming
the removal of employee with prior recent discipline for similar misconduct), aff’d as
modified on recons. , 100 M.S.P.R. 507 (2005), aff’d, 202 F. App’x 460 (Fed. Cir.
2006); Gaines v. Department of the Air Force , 94 M.S.P.R. 527, ¶¶ 2-3, 9, 11-12 (2003)
(affirming the removal of an employee with 28 years of service for loud, belligerent,
and inappropriate behavior toward a supervisor); Kirkland-Zuck v. Department of
Housing & Urban Development , 90 M.S.P.R. 12, ¶ 19 (2001) (finding, in pertinent part,
that repeated insolent behavior toward supervisors seriously undermines the capacity of
management to maintain employee efficiency and discipline), aff’d, 48 F. App’x 749
(Fed. Cir. 2002); Howarth v. U.S. Postal Service , 77 M.S.P.R. 1, 7-8 (1997) (sustaining
the removal of an employee for refusal to follow instructions).
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.
14
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.
15
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
16
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 of
17
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.
18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Ikossi_KikiDC-0752-17-0357-I-2__Final_Order.pdf | 2024-04-10 | KIKI IKOSSI v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-17-0357-I-2, April 10, 2024 | DC-0752-17-0357-I-2 | NP |
1,829 | https://www.mspb.gov/decisions/nonprecedential/Carnahan_Thomas_J_DE-0752-18-0159-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS J. CARNAHAN,1
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DE-0752-18-0159-I-1
DATE: April 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
Gerald Cunningham , Esquire, Pensacola, Florida, for the appellant.
Marcus Mitchell , Albuquerque, New Mexico, 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 pursuant to 5 U.S.C. chapter 75 for unauthorized use of a
1 On February 12, 2019, following the appellant’s death, the Board granted the
appellant’s representative’s motion to substitute the appellant’s widow, Priscilla
Carnahan, as a proper party in this matter pursuant to 5 C.F.R. § 1201.35. Petition for
Review File, Tabs 2-3. Both Thomas J. Carnahan and Ms. Carnahan will herein be
referred to as “the appellant.”
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Government-leased vehicle, failure to follow supervisory instruction, and conduct
unbecoming a Federal employee. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant alleges that the agency violated his
due process rights by engaging in prohibited ex parte communications, contends
that the administrative judge made erroneous discovery rulings regarding his
affirmative defenses, and suggests that his removal constituted an excessive
penalty. Petition for Review (PFR) File, Tab 6 at 5-12, Tab 9 at 4-10. We find
that the administrative judge applied the proper legal standard for the appellant’s
due process claim and reasonably concluded, based on credibility determinations,
that the subject ex parte communication introduced cumulative evidence unlikely
to result in undue pressure on the deciding official. Initial Appeal File (IAF),
Tab 96, Initial Decision (ID) at 19-21; see Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999). The Board must give
deference to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it2
has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) .
We agree with the administrative judge that the Board does not employ a
separate discovery process for affirmative defenses and discern no basis to disrupt
any of his reasoned discovery rulings.3 IAF, Tab 37 at 1, Tab 47 at 3; see
5 C.F.R. § 1201.72(b) (explaining that discovery covers any nonprivileged matter
relevant to the issues involved in the appeal). Last, 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 under the
circumstances. ID at 14-17. We discern no basis to disrupt his reasoned findings.
See Garcia v. Department of the Air Force , 34 M.S.P.R. 539, 541-42 (1987)
(finding appropriate the appellant’s removal for unauthorized use of a
Government vehicle).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
3 On review, the appellant erroneously contends that the Board employs two separate
discovery processes, i.e., “removal action discovery” and “affirmative defense
discovery.” PFR File, Tab 9 at 5-6. To this end, he avers that he timely filed initial
discovery requests “devoted to the removal action” and suggests that he was
subsequently entitled to additional “affirmative defense discovery” after the
administrative judge “determined whether or not [his affirmative defenses were]
frivolous.” Id.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)
(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Carnahan_Thomas_J_DE-0752-18-0159-I-1__Final_Order.pdf | 2024-04-10 | null | DE-0752-18-0159-I-1 | NP |
1,830 | https://www.mspb.gov/decisions/nonprecedential/Woods_Cody_G_AT-0752-22-0305-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CODY GERARD WOODS,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
AT-0752-22-0305-I-1
DATE: April 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cody Gerard Woods , Lakeland, Florida, pro se.
Ashley R. Geisendorfer , 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 involuntary resignation/constructive removal appeal for lack of
jurisdiction. On petition for review, the appellant reasserts that his proposed
removal could not be substantiated and that he made nonfrivolous allegations that
his resignation was compelled by the agency’s wrongdoing. 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.2 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 The administrative judge stated that he considered all the record evidence before
concluding that the appellant failed to raise nonfrivolous allegations that his decision to
resign was the result of any improper agency action. Initial Appeal File, Tab 19, Initial
Decision (ID) at 8. In determining whether the appellant has made a nonfrivolous
allegation of jurisdiction entitling him to a hearing, an administrative judge may
consider the agency’s documentary submissions but may not weigh evidence or resolve
conflicting assertions of the parties. See Ferdon v. U.S. Postal Service , 60 M.S.P.R.
325, 329 (1994). To the extent that the administrative judge’s statement suggests that
he weighed the evidence, as opposed to merely considering it, we find that he did not.
ID at 7-9.
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Woods_Cody_G_AT-0752-22-0305-I-1__Final_Order.pdf | 2024-04-10 | CODY GERARD WOODS v. DEPARTMENT OF COMMERCE, MSPB Docket No. AT-0752-22-0305-I-1, April 10, 2024 | AT-0752-22-0305-I-1 | NP |
1,831 | https://www.mspb.gov/decisions/nonprecedential/Perez_BerniceNY-0752-22-0091-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BERNICE PEREZ,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
NY-0752-22-0091-I-1
DATE: April 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Bernice Perez , Mayaguez, Puerto Rico, pro se.
Latriece D. Jones , Mobile, Alabama, 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 adverse action 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 New York 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
On February 15, 2022, the agency issued a final decision removing the
appellant from her Farm Service Agency District Director position based on
13 specifications of inappropriate conduct. Initial Appeal File (IAF), Tab 1 at 2,
Tab 7 at 20, 22-25. The decision letter informed the appellant that she would be
removed effective February 20, 2022. IAF, Tab 7 at 23. On February 19, 2022,
the appellant retired, and the agency documented the retirement as being in lieu
of involuntary action (“Retirement -ILIA”) on a Standard Form 50 (SF-50). Id.
at 20.
Thereafter, the appellant filed an appeal with the Board, contesting the
merits of the removal action and alleging that the removal pressured her to retire
involuntarily. IAF, Tab 1 at 4-5. She raised the affirmative defenses of
discrimination based on age, race, ethnicity, national origin, and sex. Id.
The administrative judge issued an order notifying the appellant that the Board
may not have jurisdiction over her appeal because “retirements are presumed to
be voluntary, and voluntary actions are not appealable to the Board.” IAF, Tab 4
at 2. The order advised the appellant that her appeal would be dismissed unless
she made a nonfrivolous allegation that she had retired “because of duress,
coercion, or misrepresentation by the agency,” and that her requested hearing
would be held only if she submitted evidence of the same. Id. The appellant did
not respond to the jurisdiction order. Without holding a hearing, the
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to nonfrivolously allege that her decision to retire was the result
of coercion. IAF, Tab 33, Initial Decision at 6-9 (citations omitted).
The appellant has filed a petition for review reiterating her arguments
below, and the agency has filed a response. Petition for Review (PFR) File,
Tabs 1-2, 5. 2
DISCUSSION OF ARGUMENTS ON REVIEW
Title 5 United States Code, section 7701(j) provides that “[i]n determining
the appealability under [section 7701] of any case involving a removal from the
service . . . neither an individual’s status under any retirement system established
by or under Federal statute nor any election made by such individual under any
such system may be taken into account.” The Board and the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) have consistently interpreted
this section to provide that an employee does not lose the right to appeal an
agency’s removal decision simply because she retires on or before the date the
removal was to become effective. Mays v. Department of Transportation , 27 F.3d
1577, 1579-81 (Fed. Cir. 1994); Williams v. Department of Health & Human
Services, 112 M.S.P.R. 628, ¶ 7 (2009). For example, in Mays, on December 1,
1992, the agency issued a final decision to remove the employee, effective
December 4, 1992. 27 F.3d at 1578. After receiving the decision letter, the
employee retired on December 4, 1992, the same day her removal was to become
effective. Id. The Federal Circuit construed 5 U.S.C. § 7701(j) to find that the
agency’s final decision was an appealable adverse action, and thus the petitioner
could appeal her removal to the Board.2 Id. at 1579-81.
2 This appeal can be distinguished from the Federal Circuit’s decision in Jenkins v.
Merit Systems Protection Board , 911 F. 3d 1370 (Fed. Cir. 2019), which also involved
an employee’s retirement proximate to an agency removal action and the possible
application of 5 U.S.C. § 7701(j). In that case, the court found that the Board lacks
jurisdiction over a removal appeal if the agency completely cancels or rescinds the
removal action before the appeal is filed with the Board, such that an appeal from that
action has become moot “because the agency . . . removed ‘all references to [the
removal action] from [the petitioner’s] official personnel file,’ thereby ‘eliminat[ing] all
consequences of that action.’” Id. at 1374-75 (quoting Cooper v. Department of the
Navy, 108 F.3d 324, 326 (Fed. Cir. 1997)). In the instant case, there is no evidence that
the agency canceled or rescinded its decision to remove the appellant. In fact, as noted,
the appellant’s removal is documented on her retirement SF-50. IAF, Tab 7 at 20.
Therefore, as in Mays, the appellant cannot “escape the final agency decision to remove
her.” 27 F.3d at 1580; see Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 22
(2014) (finding that when an agency processes the retirement request and not the
removal action, and when such retirement documentation explicitly references the
removal action, the Board retains jurisdiction over that action).3
As set forth previously, the appellant here received written notice on
February 15, 2022, of the agency’s final decision to remove her effective
February 20, 2022. IAF, Tab 7 at 22-25. She retired on February 19, 2022, the
day before her removal became effective, id. at 20; and even though the agency
ultimately processed the appellant’s retirement and not the removal, it issued an
SF-50 documenting her separation as “Retirement-ILIA,” which specifies that the
appellant “retired after receiving written notice on February 15, 2022, of decision
to separate [her] for inappropriate conduct,” id. Thus, this is a case involving a
removal, and we find that the Board has jurisdiction over the appellant’s adverse
action appeal.
Because we find that the administrative judge erred in dismissing the
adverse action appeal for lack of jurisdiction, we also find that she erred in
adjudicating the appellant’s involuntary retirement claim. The Board has held
that it is an error to adjudicate an appellant’s involuntary retirement claim as a
matter distinct from a removal action. Fox v. Department of the Army ,
120 M.S.P.R. 529, ¶ 23 (2014); see Williams, 112 M.S.P.R. 628, ¶¶ 7-8 (2009).
Rather, it will examine the merits of the adverse action, and if the agency is
unable to support its removal decision, then the appellant is entitled to all the
relief she could receive if she could show that her retirement was coerced; her
involuntary retirement claim would thereby be mooted. Scalese v. Department of
the Air Force, 68 M.S.P.R. 247, 249 (1995). Conversely, if the agency is able to
show that it properly decided to remove the appellant, then she could not show
her retirement was involuntary based on the threat of the removal action.
Id.; Williams, 112 M.S.P.R. 628, ¶ 7. Accordingly, we vacate the initial decision
and remand this case for adjudication of the adverse action appeal.
On remand, the administrative judge shall hold the appellant’s requested
hearing and adjudicate the appellant’s removal. She shall also adjudicate the
appellant’s affirmative defenses. The administrative judge shall then issue a new
initial decision addressing the merits of the appellant’s removal without regard to4
involuntary retirement or resignation doctrine. However, if the agency meets its
burden with respect to the removal, but evidence or argument on remand raises
the issue of involuntary retirement based on circumstances other than the threat of
removal, the administrative judge should address whether that evidence or
argument establishes that the appellant’s retirement was involuntary.3
See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980)
(explaining that an initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests).
ORDER
For the reasons discussed above, we vacate the initial decision and 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.
3 On review, the appellant submits numerous additional documents, such as medical
records, performance appraisals, and SF-50s. PFR File, Tabs 1-2. Under 5 C.F.R.
§ 1201.115, 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. Avansino
v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980 ). Because we are remanding this
matter, the administrative judge should consider these documents to the extent they are
relevant to the issues on remand.5 | Perez_BerniceNY-0752-22-0091-I-1__Remand_Order.pdf | 2024-04-10 | BERNICE PEREZ v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. NY-0752-22-0091-I-1, April 10, 2024 | NY-0752-22-0091-I-1 | NP |
1,832 | https://www.mspb.gov/decisions/nonprecedential/Oelberg_David_PH-0432-18-0114-C-1 and PH-531D-17-0196-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID OELBERG,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBERS
PH-0432-18-0114-C-1
PH-531D-17-0196-C-1
DATE: April 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Oelberg , Selinsgrove, Pennsylvania, pro se.
Dora Malykin , Washington, D.C., for the agency.
Sandy S. Francois , Kenner, 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 compliance initial
decision, which denied his petition for enforcement, finding that he failed to meet
his burden of proving a breach of the settlement agreement. Generally, we grant
petitions such as this one only in the following circumstances: the 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).
decision contains erroneous findings of material fact; the compliance 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 compliance initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the agency’s characterization of
the lump sum payment, we AFFIRM the compliance initial decision, which is
now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On June 28, 2019, the appellant and the Department of Agriculture entered
into a settlement agreement. Oelberg v. Department of Agriculture ,
PH-0432-18-0114-C-1, Compliance File (CF), Tab 1 at 7-13.2 Thereafter, the
appellant filed the instant petition for enforcement, alleging that the agency
breached the settlement agreement. Id. at 3. He alleged that, although the agency
paid him a $20,000 lump sum pursuant to the settlement agreement, it incorrectly
characterized the payment as “other income” in a tax form filed with the Internal
Revenue Service (IRS), as opposed to characterizing it as “Gross proceeds paid to
an attorney.” Id. at 3, 15. According to the appellant, this characterization will
2 The settlement agreement here resolved two underlying appeals, MSPB Docket
No. PH-0432-18-0114-I-1 and PH-531D-17-0196-I-1. Upon the filing of the appellant’s
petition for enforcement, the two appeals were joined, resulting in one compliance
initial decision and one petition for review. All of the record citations in this decision
are from the appeal docketed as PH-0432-18-0114-C-1.2
result in a higher tax burden on him. Id. at 3. The appellant further alleged that,
although he is banned from employment in the agency’s Animal Care Division
under the agreement, the agency breached the settlement agreement by preventing
him from receiving employment in other divisions of the Department of
Agriculture and other Federal agencies. Id.
The administrative judge advised the appellant of his burden of establishing
that the agency breached the agreement. CF, Tab 5 at 2-3. Following the
appellant’s response, the administrative judge issued an initial decision denying
the petition for enforcement. CF, Tab 6, Tab 9, Compliance Initial Decision
(CID) at 1-2. The administrative judge found that the agency’s reporting of the
$20,000 as “other income” did not violate the settlement agreement. CID at 7-9.
He further found that the appellant failed to meet his burden of proving by
preponderant evidence that the agency banned him from Federal employment in
violation of the settlement agreement. CID at 9-12.
The appellant filed a petition for review, and the agency responded.
Petition for Review (PFR) File, Tabs 1, 3. The appellant additionally filed a
motion for sanctions against the agency, alleging that its response to his petition
for review was untimely.3 PFR File, Tab 4. The agency responded to the
appellant’s request for sanctions, asserting that it was not untimely in its original
response. PFR File, Tab 5. Finally, the appellant has replied to the agency’s
original response to his petition for review. PFR File, Tab 7.
3 Contrary to the appellant’s assertion, the agency’s response to his petition for review
was not untimely. In an acknowledgment order, the Clerk of the Board informed the
parties that the agency may file a response on or before July 28, 2019. PFR File, Tab 2
at 1. Because the deadline to file a response fell on a Sunday, the filing period included
the first workday after that date. 5 C.F.R. § 1201.23. Thus, the agency’s response filed
on Monday, July 29, 2019, was timely filed, and we deny the appellant’s motion for
sanctions. 3
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the appellant failed to prove that the
agency breached the settlement agreement.
As the party asserting noncompliance, the appellant bears the burden of
proving by preponderant evidence that the agency breached the settlement
agreement; however, following the appellant’s filing of a petition for
enforcement, the agency must produce relevant, material, and credible evidence
of its compliance with the agreement. Perkins v. Department of Veterans Affairs ,
105 M.S.P.R. 289, ¶ 7 (2007). Further, the appellant must show not only that the
agency acting in a manner that is inconsistent with a term of the settlement
agreement, but that there was material noncompliance with a settlement term.
Lutz v. U.S. Postal Service , 485 F.3d 1377, 1381 (Fed. Cir. 2007). “A breach is
material when it relates to a matter of vital important, or goes to the essence of
the contract.” Thomas v. Department of Housing and Urban Development ,
124 F.3d 1439, 1142 (Fed. Cir. 1997).
We modify the administrative judge’s analysis of the agency’s
characterization of the lump sum payment, but still conclude that he
properly found that the agency’s characterization was not a breach
of the settlement agreement.
On review, the appellant challenges the finding that the agency’s
characterization of the lump sum as “other income,” as opposed to “Gross income
paid to an attorney,” was not a breach of the settlement. PFR File, Tab 1 at 3.
Specifically, he argues that the administrative judge erred in relying on
Commissioner of Internal Revenue v. Banks , 543 U.S. 426 (2005), in finding that
the agency’s characterization of the lump sum payment did not breach the
settlement agreement. Id. He alleges that Commissioner is distinguishable from
the instant appeal because it involved the payment of attorneys’ fees, whereas this
appeal involves the reimbursement for attorneys’ fees already paid by the
appellant. PFR File, Tab 1 at 3. The administrative judge held that, under the
Supreme Court’s precedent in Commissioner, the agency was required to report4
the lump sum payment as income to the plaintiff, even if it paid the attorney’s
fees directly to the appellant’s attorney. CID at 8. The appellant cites no
authority in support of his distinction between payments for attorneys’ fees and
reimbursements for attorneys’ fees already paid, but rather, merely disagrees with
the administrative judge’s conclusions, which we see no reason to disturb. See
Yang v. U.S. Postal Service , 115 M.S.P.R. 112, ¶ 12 (2010) (finding mere
disagreement with the administrative judge’s findings is insufficient to disturb the
initial decision). However, even assuming arguendo that the Supreme Court’s
holding in Commissioner does not apply, the appellant has nonetheless failed to
meet his burden of proving that the agency breached the settlement by
characterizing the lump sum as “other income.”
The administrative judge found that, regardless of the holding in
Commissioner, the lump sum payment here was paid to the appellant, not to his
attorney, and thus the labeling of such a payment as “Gross proceeds paid to an
attorney” would be incorrect. CID at 7-8. We agree, and modify his findings to
supplement the analysis regarding the agency’s characterization of the lump sum
payment under the actual terms of the agreement.
The Board interprets settlement agreements by applying the law of
contracts. Felch v. Department of the Navy , 112 M.S.P.R. 145, ¶ 8 (2009). In
construing the terms of a written settlement agreement, the words of the
agreement itself are of paramount importance. Id. Moreover, in construing a
settlement agreement, the Board examines the four corners of the agreement to
determine the parties’ intent. Id. The agreement here states that the agency
“makes no representations regarding any [F]ederal, state, or local tax liability
which may be incurred by Appellant as a result of this payment.” CF, Tab 1 at 8.
It further states that the agency “will report the payment amount to the [IRS],”
and that “[a]ny disputes over taxes are between the IRS and Appellant, and not
the Agency.” Id. The agreement makes no distinction as to how the agency will
characterize the payment for tax purposes, and thus, the agreement does not5
require the agency to characterize the payment in any particular way. Rather,
pursuant to the settlement agreement, any dispute over the taxes is between the
appellant and the IRS, not the agency. CF, Tab 1 at 8. Accordingly, we agree
with the administrative judge that the appellant failed to meet his burden of
proving that the agency’s characterization of the lump sum payment breached the
settlement agreement.4
The administrative judge properly found that the appellant failed to
prove that the agency banned him from employment in violation of
the settlement agreement.
The appellant further challenges the administrative judge’s holding that,
outside of the Animal Care Division, the agreement was silent as to what the
agency could and could not do concerning the appellant’s efforts to obtain
Federal employment. PFR File, Tab 1 at 3-4. He takes umbrage with the
administrative judge’s assertion that the agency’s interference with his job
applications, if proven, would nonetheless not constitute a breach of the
settlement agreement. Id. He additionally challenges the finding that actions
taken by agency officials prior to the signing of the settlement agreement could
not evidence a breach of the agreement. Id. at 4.
The administrative judge found that the agreement in no way barred the
agency from giving the appellant negative reviews for future applications for
employment. CID at 9-10. He further noted that actions taken by an agency
employee prior to the settlement agreement “cannot be considered as evidence
that a breach occurred.” CID at 6 n.3. The appellant cites no authority casting
doubt on the administrative judge’s findings. Mere disagreement with the
administrative judge’s findings is insufficient to disturb the initial decision.
4 The appellant further argues that the agency failed to submit evidence of its
compliance with the settlement agreement, as required, and that the administrative
judge erred by issuing a decision without such evidence. PFR File, Tab 1 at 3.
However, he is not alleging that the agency failed to pay him the $20,000. CF, Tab 1
at 3, 15. His own submission, which demonstrates that the agency did in fact pay him
the $20,000, demonstrates that the agency met its burden of showing compliance. 6
Yang, 115 M.S.P.R. 112, ¶ 12. Accordingly, we see no reason to disturb the
administrative judge’s finding that the appellant provided no evidence of the
agency interfering with his applications. CID at 10.
The appellant also argues that the agency failed to submit evidence of its
compliance with the settlement agreement regarding his alleged ban from
employment. PFR File, Tab 1 at 3. However, the agency submitted sworn
statements from various agency personnel asserting that they have not had
communications with prospective employers concerning the appellant and that
they were not interfering with his applications for employment in any way.
CF, Tab 7 at 19-25. The sworn statements additionally explain why, with regards
to the appellant’s applications within the agency, the appellant was not referred.5
Id. at 19-23. We therefore find the appellant’s argument that the agency failed to
submit evidence of compliance unavailing.
We find unpersuasive the appellant’s assertion that the administrative judge
engaged in ex parte communications with the agency.
On review, the appellant alleges that the agency and the administrative
judge engaged in prohibited ex parte communications. PFR File, Tab 1 at 3. He
alleges that the initial decision contains statements attributed to the agency that
are not in the record. Id. As an example, he notes that the initial decision
attributes the agency with pointing out that three of the five positions the
appellant was not selected for were not with the agency. Id. We find the
appellant’s assertion unavailing.
The Board’s regulations describe prohibited ex parte communications as
those communications made between a decision-making official of the Board and
an interested party to a proceeding when the communication is made without
giving the other parties to the appeal a chance to participate and where the
communication involves the merits of the case. 5 C.F.R. § 1201.101; see
5 One of the applications was for current agency employees only, which the appellant
was not. CF, Tab 7 at 20. The other required graduate-level education or experience
which the appellant did not have. Id. at 23. 7
Gubino v. Department of Transportation , 80 M.S.P.R. 442, 444 (1998). The
appellant’s original submission includes a screenshot of his USA Jobs profile,
which shows three unsuccessful applications for employment with agencies other
than the Department of Agriculture. CF, Tab 1 at 16-17. Moreover, in both of its
submissions below, the agency stated that the appellant’s applications were to
multiple Federal agencies, not just the Department of Agriculture. CF, Tab 4
at 5, Tab 7 at 7. The appellant provides no other evidence or argument in support
of his allegation that the agency engaged in prohibited ex parte communications
with the administrative judge. Based on the foregoing, we find that there is no
evidence to support a finding of prohibited ex parte communications.
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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
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 obtain9
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 10
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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Oelberg_David_PH-0432-18-0114-C-1 and PH-531D-17-0196-C-1__Final_Order.pdf | 2024-04-10 | null | null | NP |
1,833 | https://www.mspb.gov/decisions/nonprecedential/Hart_Sophia_X_SF-0752-22-0558-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOPHIA X. HART,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-22-0558-I-1
DATE: April 9, 2024
THIS ORDER IS NONPRECEDENTIAL1
Sophia X. Hart , Arrowsmith, Illinois, pro se.
Julie Nelson , Golden, 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 her termination 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).
2
DISCUSSION OF ARGUMENTS ON REVIEW
Effective December 6, 2020, the appellant was appointed to a GS-5 Support
Services Specialist position in the excepted service, pursuant to the Schedule A
hiring authority set forth in 5 C.F.R. § 213.3102(u). Initial Appeal File (IAF),
Tab 8 at 8. It is undisputed that the appellant had no prior Federal service and is
not preference eligible. IAF, Tab 1 at 1, Tab 8 at 8. On July 8, 2022, 1 year and
7 months into her employment, the agency notified the appellant that it was
terminating her appointment during her 2-year trial period. IAF, Tab 1 at 8. The
letter notified her that, as a trial period employee, she had no right to appeal her
termination to the Board. Id. Nonetheless, the appellant filed a Board appeal
challenging her termination on August 23, 2022. Id.
The administrative judge issued a timeliness order and two jurisdictional
orders. IAF, Tabs 3-4, 10. In relevant part, the jurisdictional order explained that
the appellant must make a nonfrivolous allegation that she meets the definition of
an employee with Board appeal rights, as set forth in 5 U.S.C. § 7511(a)(1)(C).
IAF, Tab 10 at 1-3. Both parties submitted numerous responses to the
administrative judge’s orders. IAF, Tabs 5, 7-9, 11, 13-16. Without holding a
hearing, the administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID). He found that the
appellant did not nonfrivolously allege that she was an employee pursuant to
5 U.S.C. § 7511(a)(1)(C) because she was not serving under an initial
appointment pending conversion to the competitive service and she had not
completed 2 years of current continuous service in the same or similar position
other than a temporary appointment. ID at 7-8. He found that, even if the
appellant was in a position pending conversion to the competitive service,
she failed to nonfrivolously allege that she was not serving a probationary or trial
period. ID at 7-8 n.5. The appellant has filed a petition for review, the agency
has filed a response, and the appellant has filed a reply. Petition for Review
3
(PFR) File, Tabs 1, 3-4. The appellant has also filed a motion for leave to file
additional documents. PFR File, Tab 7.
An employee in the excepted service, who is not preference eligible, has
chapter 75 rights only if she qualifies as an employee under 5 U.S.C. § 7511(a)(1)
(C). We agree with the administrative judge’s conclusion that the appellant has
not established jurisdiction under 5 U.S.C. § 7511(a)(1)(C)(ii) because she has
not alleged that she completed 2 years of current continuous service in the same
or similar positions. ID at 7. The appellant may establish jurisdiction under
5 U.S.C. § 7511(a)(1)(C)(i) if she nonfrivolously alleges that she was “not
serving a probationary or trial period under an initial appointment pending
conversion to the competitive service.” We disagree with the administrative
judge’s finding that the appellant failed to nonfrivolously allege that she was
serving in an initial appointment pending conversion to the competitive service.
Id.
However, the U.S. Court of Appeals for the Federal Circuit in Van Wersch
v. Department of Health & Human Services , 197 F.3d 1144 (Fed. Cir. 1999), held
that an appointment under 5 C.F.R. § 213.3102(u), the same regulation under
which the appellant was appointed, was an appointment pending conversion to the
competitive service.2 We also disagree with the administrative judge’s alternative
finding that the appellant failed to allege that she was not serving a probationary
or trial period. ID at 7-8 n.5. Neither the appellant’s SF -50 nor her offer letter
references a probationary or trial period. IAF, Tab 8 at 8, Tab 9 at 19-20.
2 The administrative judge found that the agency’s offer letter, which informed the
appellant that there was no right of conversion to the competitive service, was evidence
that the appointment was not pending conversion to the competitive service. ID at 7.
However, that language merely mirrors 5 C.F.R. § 213.3102, which states that an
agency may noncompetitively convert an employee to the competitive service after a
period of satisfactory performance. 5 C.F.R. § 213.3102(u)(6) (emphasis added). We
are unpersuaded that the language in the offer letter requires a different result. See,
e.g., Ferguson v. Department of the Interior , 59 M.S.P.R. 305, 307-08 (1993) (noting
language in the appellant’s SF-50, which stated, “may noncompetitively convert [her] to
a career or career conditional appointment,” and concluding that the appointment was
pending conversion to the competitive service for purposes of jurisdiction).
4
Although, at times, the appellant asserted that she was serving a 2 -year
probationary period, e.g., IAF, Tab 1 at 5, she asserted, at other times, that she
was serving a 1-year probationary period, which she states she completed. E.g.,
IAF, Tab 7 at 4. In support thereof, she filed a copy of the job announcement to
which she applied, that noted a 1-year probationary period, IAF, Tab 9 at 27, and
a message from her supervisor, which is ambiguous and could be read to support
a finding that the trial period was either 1 or 2 years, IAF, Tab 7 at 13. Although
the agency has disputed this evidence, the Board may not weigh evidence at the
jurisdictional stage.3 See Baldwin v. Department of Veterans Affairs,
109 M.S.P.R. 392, ¶ 11 (2008). Thus, we find that the appellant made a
nonfrivolous allegation of jurisdiction, which entitles her to a jurisdictional
hearing.
3 To the extent the agency argues that a 2-year trial period is mandated by 5 C.F.R.
§ 213.3102(u), we disagree. IAF, Tab 15 at 4. In Nelson v. Department of Health &
Human Services, 119 M.S.P.R. 276, ¶¶ 10-13 (2013), the Board overruled cases holding
that the entire period of a special appointment, such as an appointment under Schedule
A, was a probationary or trial period and held that the Board must determine whether
the agency required an employee serving under a special appointment to serve a trial
period.
5
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.4,5 On remand, the
administrative judge shall afford the parties an opportunity to submit evidence
and argument on whether the appellant was an employee as defined by 5 U.S.C.
§ 7511(a)(1)(C)(i) and shall hold a jurisdictional hearing if requested.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 We deny the appellant’s motion for leave to file additional documents, which she
described as relating to the merits of her termination, because they are not related to the
issue of jurisdiction over this appeal. PFR File, Tab 7; 5 C.F.R. § 1201.114(a)(5).
5 The administrative judge did not make findings as to the timeliness of this appeal, and
we do not do so in the first instance. If the appellant establishes jurisdiction over her
appeal on remand, the administrative judge shall make findings as to the timeliness of
this appeal. | Hart_Sophia_X_SF-0752-22-0558-I-1__Remand_Order.pdf | 2024-04-09 | SOPHIA X. HART v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-22-0558-I-1, April 9, 2024 | SF-0752-22-0558-I-1 | NP |
1,834 | https://www.mspb.gov/decisions/nonprecedential/Williams_EricDC-3330-22-0113-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC WILLIAMS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-3330-22-0113-I-1
DATE: April 9, 2024
THIS ORDER IS NONPRECEDENTIAL1
Eric Williams , North Charleston, South Carolina, pro se.
Sally R. Bacon , Esquire, Fort Belvoir, 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) . 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 is a preference eligible veteran with a service-connected
disability rating of 30% or more. Initial Appeal File (IAF), Tab 9 at 37, 56. He
submitted an application for a Professor of Life Cycle Logistics Management
position with the agency’s Defense Acquisition University (DAU) pursuant to
vacancy announcement DAU-10954360-STH202010007F. Id. at 36-46. The
agency posted this announcement on November 18, 2020, and it closed 96 days
later, on February 22, 2021. Id. at 69-77. A five-member panel reviewed the
résumés and scored the applicants based on the five criteria identified in the
vacancy announcement. IAF, Tab 9 at 72-73, Tab 18 at 4-6. Based on this
review, a select number of candidates were offered an interview. IAF, Tab 18 at
4-6. The appellant was not among them. Id. at 6. On October 19, 2021, the
agency notified the appellant that he was not selected for three of the four
positions to which he applied.2 Id. at 16.
The appellant timely filed a VEOA complaint with the Department of
Labor (DOL) regarding his nonselection, and DOL notified him that it did not
find evidence that the agency violated his rights. IAF, Tab 1 at 7-9. The
appellant subsequently filed the instant Board appeal challenging his nonselection
for the vacancy and requested a hearing. IAF, Tab 1 at 2. On his appeal form, the
appellant alleged that the agency violated his veterans’ preference rights under
VEOA and committed a prohibited personnel practice by violating Office of
Personnel Management (OPM) regulations in connection with his nonselection for
the position. Id. at 5. The appellant identified 5 U.S.C. §§ 3317(a)-(b), 3318(b),
2 On his application, the appellant requested that he be considered for positions in the
following locations: Huntsville, Alabama; Fort Belvoir, Virginia; Norfolk, Virginia; and
Richmond, Virginia. IAF, Tab 9 at 37-38. The email notifying the appellant of his
nonselection identified that his application had been referred to the hiring manager for
all four locations and that he had not been selected for all but the Richmond, VA
positions. Id. at 16. It is unclear from the record why the nonselection notice did not
identify the status of the appellant’s application for the Richmond, VA location.
However, neither party has raised an issue regarding the status of the appellant’s
application for that location on review, so we have not addressed the issue.
and 3319 as the specific statutes he believed the agency violated in connection
with his nonselection.
The administrative judge issued a jurisdictional order stating that the
appellant appeared to be raising a claim under VEOA and apprising the appellant
of the applicable law and burden of proof requirements for a VEOA appeal.
IAF, Tab 3. The order further instructed the appellant to file evidence or
argument establishing Board jurisdiction over his VEOA appeal. Id. at 6-7. After
both parties responded, IAF, Tabs 7-9, 18, and the appellant filed a number of
additional pleadings, IAF, Tabs 10-17, 19-21, the administrative judge issued
an initial decision based on the written record without holding the appellant’s
requested hearing, denying his request for corrective action under VEOA,
IAF, Tab 22, Initial Decision (ID) at 1-2, 14.3 The administrative judge found
that the appellant established that the Board has jurisdiction over his VEOA
appeal. ID at 7-8. Nevertheless, the administrative judge determined that the
appellant did not establish a genuine dispute of material fact regarding whether
the agency violated his veterans’ preference rights; therefore, he denied the
appellant’s request for corrective action based on the written record. ID at 11-14.
Specifically, the administrative judge determined that it was undisputed
that the Professor positions at issue in this appeal were filled under Schedule A of
the excepted service, and so the agency was not required to strictly comply with
the excepted-service veterans’ preference hiring requirements under title 5 and
instead could fill the vacancy according to the agency’s Civilian Faculty Plan
(CFP). ID at 9. Based on his review of the record evidence, the administrative
judge determined that the agency filled the vacancy in accordance with the CFP,
including by considering veteran status as a “positive factor,” and so the agency’s
selection procedures complied with the controlling legal authority relating to
3 Although the appellant’s jurisdictional response was untimely, it appears that the
administrative judge considered it, along with the appellant’s other submissions.
ID at 4, 14.
veterans’ preference. ID at 9-14. Consequently, the administrative judge denied
the appellant’s request for corrective action.
The appellant has filed a petition for review, to which the agency has
responded. Petition for Review (PFR) File, Tabs 1, 3. The appellant has replied
to the agency’s response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant restates his argument that the agency was required
to seek passover authority from OPM in order bypass him because of his
service-connected disability of 30% or more. PFR File, Tab 1 at 4-5, 9-11.
Additionally, he reasserts that the agency violated other statutes, regulations, and
rules related to veterans’ preference. Id. at 5-9.
As the administrative judge correctly observed, when, as here, an appellant
alleges an agency violated his veterans’ preference rights under VEOA, he may
establish jurisdiction by (1) showing that he exhausted his remedy with DOL; and
(2) making nonfrivolous allegations that: (a) he is a preference eligible within the
meaning of VEOA, and (b) the agency violated his rights under a statute or
regulation relating to veterans’ preference. 5 U.S.C. § 3330a(a)(1)(A), (d)(1);
Jarrard v. Social Security Administration , 115 M.S.P.R. 397, ¶ 7 (2010), aff’d
sub nom., Jarrard v. Department of Justice , 669 F.3d 1320 (Fed. Cir. 2012);
see Davis v. Department of Defense , 2022 MSPB 20, ¶ 5 n.1 (determining that
an accurate exposition of the VEOA jurisdictional elements may omit reference to
the requirement that an appellant nonfrivolously allege that the action at issue
took place on or after the October 30, 1998 enactment date of VEOA). A statute
or regulation “relating to veterans’ preference” under VEOA is one that stands in
some relation to, has a bearing on, concerns, and has a connection with veterans’
preference rights. Dean v. Department of Agriculture , 99 M.S.P.R. 533, ¶ 17
(2005), aff’d on recons. , 104 M.S.P.R. 1 (2006). Once an appellant establishes
Board jurisdiction under VEOA, the Board may address the merits of the appeal.
Jarrard, 115 M.S.P.R. 397, ¶ 8.
The parties have not challenged the administrative judge’s findings that the
appellant exhausted his administrative remedy with DOL and made nonfrivolous
allegations that he was a preference eligible and the agency violated a statute or
regulation relating to veterans’ preference. ID at 8. Accordingly, we affirm
those findings and agree with the administrative judge that the appellant
established jurisdiction over his VEOA appeal. The sole contested issue in this
appeal concerns whether the appellant proved, by preponderant evidence, that the
agency violated one or more statutory or regulatory provisions relating to
veterans’ preference in its selection process. Boston v. Department of the Army ,
122 M.S.P.R. 577, ¶ 6 (2015).
The appellant is entitled to a hearing on the merits.
The Board may decide the merits of an appeal alleging the violation of
rights under VEOA without holding a hearing when there is no genuine dispute of
material fact and one party must prevail as a matter of law. Montgomery v.
Department of Health and Human Services , 123 M.S.P.R. 216, ¶ 13 (2016).
If an administrative judge finds jurisdiction but declines to hold a hearing, he is
responsible for notifying the parties that there will be no hearing, setting a date
on which the record will close, and affording the parties the opportunity to submit
evidence regarding the merits of the appeal before that date. Id. In this case,
the administrative judge found that the Board has jurisdiction under VEOA and
declined to hold a hearing as he indicated he would in the acknowledgment order,
IAF, Tab 2 at 2, Tab 3 at 7, without giving the parties the required notice. This
error was prejudicial to the appellant because, as discussed below, there remain
genuine disputes of material facts that cannot be resolved on the current record.
Therefore, we remand this appeal for a hearing on the merits and a new initial
decision.
There remain genuine disputes of material fact regarding whether
the agency used its Schedule A hiring authority.
On review, the appellant identifies a number of statutes relating to
veterans’ preference that he believes the agency violated, including 5 U.S.C.
§§ 3309, 3317, 3318, 3319, and 3320. PFR File, Tab 1 at 5, 8-9. Regarding
5 U.S.C. § 3319, the administrative judge found that the category ranking
procedures set forth in 5 U.S.C. § 3319, including the requirement that preference
eligibles must be listed ahead of non-preference eligible applicants within each
quality category, are not applicable here. ID at 11-12. The appellant continues to
assert that the vacancy at issue in this appeal was “[p]art of the competitive
examining process.” PFR File, Tab 1 at 6. We agree with the administrative
judge that the appellant failed to establish a genuine dispute that the agency used
anything other than an excepted-service hiring authority. ID at 10-11.
A factual dispute is “material” if, in light of the governing law, its
resolution could affect the outcome. Oram v. Department of the Navy ,
2022 MSPB 30, ¶ 9 n.5. A factual dispute is “genuine” when there is sufficient
evidence favoring the party seeking an evidentiary hearing for the administrative
judge to rule in favor of that party if the judge credits that party’s evidence. Id.
The administrative judge concluded that the vacancy was announced within the
excepted service. IAF, Tab 9 at 58, 63, 70, 78; PFR File, Tab 1 at 6; ID at 10-11.
The record supports this finding and contains no evidence to the contrary;
therefore, we discern no error in his finding.
The category ranking requirements in section 3319 apply to
competitive-service positions and not to the excepted-service positions at issue in
this case. See 5 U.S.C. § 3319(a) (stating that an agency with delegated
examining authority “may establish category rating systems for evaluating
applications for positions in the competitive service . . . based on merit consistent
with regulations prescribed by [OPM]” (emphasis added)); Dean v. Office of
Personnel Management , 115 M.S.P.R. 157, ¶ 18 n.6 (2010) (explaining that
ranking procedures may be applied, if certain requirements are met, to
competitive-service examinations). Accordingly, we agree with the
administrative judge’s finding that the agency did not violate the appellant’s
veterans’ preference rights under 5 U.S.C. § 3319.4
However, OPM has adopted regulations for excepted-service appointments
that provide for similar rating and ranking of candidates. 5 C.F.R. § 302.302;
see Patterson v. Department of the Interior , 424 F.3d 1151, 1156 (Fed. Cir. 2005)
(recognizing that “OPM has issued regulations [at 5 C.F.R. part 302] setting forth
procedures for applying veterans’ preference rights to the excepted service”).
Pursuant to OPM’s regulations, an agency may assign qualitative numerical
scores on a scale of 100, or may make an initial determination of eligibility
without such scores. 5 C.F.R. § 302.302(a). If the agency refers eligible
candidates without qualitative scores, preference-eligible candidates are
considered ahead of non-preference eligibles. 5 C.F.R.
§§ 302.201(b), .302(a), .304(b)(5). If it uses scoring, the agency must score all
qualified applicants at 70 or more and, as applicable here, add 10 points to such
candidates’ scores. 5 C.F.R. §§ 302.201(a), .302(b).
OPM mandates that all agencies follow its excepted-service selection
procedures. 5 C.F.R. § 302.104. However, it exempts certain positions
including, as relevant here, positions that an agency, with OPM agreement,
4 Additionally, although the appellant appears to argue on review that the agency also
violated his veterans’ preference rights by failing to apply 5 U.S.C. § 3309 in
connection with his nonselection, he did not raise this argument before the
administrative judge. PFR File, Tab 1 at 8, 10; see Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016) (noting 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); Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (same);
5 C.F.R. § 1201.115(d). The appellant also has not provided any evidence that
he exhausted this claim before DOL. See Graves v. Department of Veterans Affairs ,
117 M.S.P.R. 491, ¶ 11 (2012) (explaining that the exhaustion requirement is mandated
by statute and evidence as to exhaustion is not liberally construed). Accordingly,
we have not considered it here.
“included in Schedule A.” 5 C.F.R. § 302.101(c)(6). OPM has issued regulations
authorizing the agency to appoint DAU Professors using a Schedule A hiring
authority. 5 C.F.R. § 213.3101 (stating that, if authorized by OPM, agencies may
make appointments under Schedule A “to positions which are not of a
confidential or policy-determining character . . . [and] for which it is not
practicable to examine”); Office of Personnel Management, Excepted Service;
Consolidated Listings of Schedules A, B, and C Exceptions, 85 Fed. Reg. 13,282,
13,283-84 (Mar. 6, 2020) (authorizing the agency to appoint DAU Professors
using Schedule A). For such Schedule A positions, the agency must consider
veterans’ preferences as a “‘positive factor’ in reviewing applications.”
Patterson, 424 F.3d at 1156-57, 1159-60.
DAU’s CFP identifies alternatives for hiring faculty, including the
agency’s direct hiring authorities and Schedule A. IAF, Tab 9 at 63. Further, its
guidance embraces the use of “[n]on-traditional rating and ranking” to determine
which candidates are “best qualified,” followed by providing a single unscored
list to the requesting official “with preference eligibility annotated,” from which
the selecting official makes his selection, treating “preference eligibility . . . as a
positive factor before the final selection.” Id.
The record reflects that as applications were received by the agency for the
Professor vacancy, they were placed on certificates in three batches,
at approximately the 30-, 60-, and 90-day marks, regardless of whether they met
the minimum qualifications for the position. IAF, Tab 18 at 4. The résumés from
each applicant batch were then provided to a résumé review panel, and each
member of the panel assessed them based on a set of 5 factors and gave them a
total “score” of up to 125 based on a personalized assessment. Id. at 4-6.
The panel then totaled the panel members’ scores to assign a cumulative score.
Id. at 6. If an applicant had a cumulative score at or above 91, he was placed in
the “Best Meets Mission Requirements” (“Best Qualified”) category or, if not so
identified, received no further consideration. Id. at 6. Only candidates identified
as Best Qualified were offered an interview. Id.
The appellant’s application was in the third batch, which included 106
applicants. Id. According to the agency, because his total “score” of 47 was
below the cutoff score for placement on the Best Qualified list, he was not
interviewed or selected for the position. Id. However, in conducting its
investigation, DOL represented that the agency had stated it used a title 10
excepted-service hiring authority, that the appellant was in the Best Qualified
category, and he was referred to the hiring official. IAF, Tab 1 at 8.
Neither party has provided any evidence from which to determine the type
of hiring authority used, such as sworn statements from those involved in the
hiring process or a Standard Form 50 for the successful candidate or candidates
referencing the appointment authority. Further, the use of scoring criteria does
not appear to comport with Schedule A hiring, generally. See 5 C.F.R. §§ 6.2
(stating that Schedule A positions are “[p]ositions other than those of a
confidential or policy-determining character for which it is not practicable to
examine”), 302.101(c)(6). Finally, after conducting an investigation into his
complaint, DOL advised the appellant that the agency used a title 10 hiring
authority, rather than Schedule A. IAF, Tab 1 at 8. Therefore, we do not agree
with the administrative judge that “the unrefuted facts in this case prove” that the
agency used a Schedule A hiring authority. ID at 9 -11.
If the agency did not hire using Schedule A or another authority that
excepted it from OPM’s excepted-service hiring requirements in 5 C.F.R.
part 302, then the record is lacking evidence regarding whether it complied with
those requirements. For example, the agency has not stated whether the appellant
was qualified, and thus entitled to a minimal score of 70 out of 100, whether it
referred candidates past the résumé review panel without their numerical ratings,
as required by its CFP, or how it accounted for preference eligibility in its
ultimate hiring decision. Even if the candidates were referred without scoring,
the lead for the résumé review panel was also on the interview panel, and thus
aware of the assigned scores. IAF, Tab 18 at 4. However, he did not
state whether or how those scores factored into the interview panel’s decision.
Id. at 4-6. Therefore, we find that the administrative judge erred in determining
that “the agency complied with the controlling legal authority relating to
veterans’ preference.” ID at 10. Instead, the record in this instance is
ambiguous, and there remain genuine issues of material fact as to whether the
agency observed preference eligibility requirements in its hiring.
The administrative judge alternatively found that, even if 5 U.S.C. § 3319
were applicable to the excepted-service vacancy announcement at issue in this
appeal, the appellant would not be entitled to corrective action because he was
not placed among the “Best Qualified” candidates from whom the agency
ultimately made its selection. ID at 12-13. Although, as mentioned
above, section 3319 did not apply to this excepted-service selection, OPM’s
excepted-service hiring regulations applied unless the agency used its Schedule A
or other exempted hiring authority. We recognize that the appellant was not
placed in the Best Qualified category and, on that basis, was not referred for
further consideration. Therefore, we have considered whether the written record
could support a finding that he was not entitled to corrective action. See Jones v.
Department of Health and Human Services , 119 M.S.P.R. 355, ¶¶ 15-16 (2013)
(concluding that even if the agency had accorded the appellant veterans’
preference under 5 U.S.C. § 3319(b), he would not have been entitled to
corrective action on his VEOA claim because he was rated “Well Qualified” and
the only candidates whose names appeared on the certificate of eligible were
rated “Best Qualified,” and so the appellant’s placement at the top of the “Well
Qualified” list would not have resulted in his selection), aff’d per curiam ,
544F. App’x 976 (Fed. Cir. 2013). However, we believe it is inappropriate to
reach this conclusion without first determining what hiring authority the agency
used and whether it complied with the appropriate laws and regulations
concerning that authority.
There remain genuine disputes of material fact regarding whether
the agency was required to seek passover approval from OPM.
We now turn to the appellant’s argument that the agency violated the
passover requirement set forth in 5 U.S.C. § 3318. PFR File, Tab 1 at 8-10.
Under 5 U.S.C. § 3318, when an agency intends “to pass over a preference
eligible on a certificate” in favor of a non-preference eligible, the agency must
file written reasons for its intended passover with OPM and OPM must determine
whether the agency has provided a sufficient basis to warrant the intended
passover. 5 U.S.C. § 3318(c)(1); Jarrard, 115 M.S.P.R. 397, ¶ 9. Ordinarily,
if the preference eligible is a veteran with a compensable service-connected
disability of 30% or more, like the appellant, he will have the opportunity to
respond to the agency’s stated reasons for the intended passover, and OPM must
consider his response in rendering its decision. 5 U.S.C. § 3318(c)(1)-(2);
Jarrard, 115 M.S.P.R. 397, ¶ 9.
In the initial decision, the administrative judge noted that, although the
procedures outlined in 5 U.S.C. §§ 3308-3318 explicitly apply to the competitive
service, they also generally apply to the excepted service through 5 U.S.C.
§ 3320. ID at 11; see Jarrard, 115 M.S.P.R. 397, ¶¶ 10, 15 (reaching this
conclusion regarding the application of 5 U.S.C. § 3309 to excepted-service
hirings). Nevertheless, he determined that when an agency uses Schedule A to
make an appointment, as he found was the case here, it is exempt from the
passover requirements set forth in 5 U.S.C. § 3318(c). ID at 10-11. We are not
persuaded.
OPM has exempted Schedule A positions from its regulation stating that
the passover provision applies to excepted service appointments. 5 C.F.R.
§§ 302.101(c)(6), .401(b). Instead, in making a Schedule A appointment, “each
agency shall follow the principle of veteran preference as far as administratively
feasible and, on the request of a qualified and available preference eligible, shall
furnish him/her with the reasons for his/her nonselection.” 5 C.F.R. § 302.101(c).
The Federal Circuit invalidated an OPM regulation that contained similar
language concerning the passover provision on the basis that the regulation
provided less protection than the statutory protection at 5 U.S.C. § 3318. Gingery
v. Department of Defense , 550 F.3d 1347, 1349-50, 1353-54 (2008) (invalidating
5 C.F.R. § 302.401(b) (2008)). However, it later agreed with OPM that attorney
hiring was excepted from the passover provision because Congress has prohibited
the rating of attorney candidates. Jarrard, 669 F.3d at 1324-26. It reasoned that
an agency appointing an attorney would be unable to generate a list of ranked
applicants, a requirement for the passover process under 5 U.S.C. § 3318.
Id. at 1325-26.
We decline to resolve here whether the passover provision applies to the
non-attorney Schedule A excepted-service appointments of DAU professors.
First, as noted above, we are unable to determine whether the agency used its
Schedule A hiring authority. Further, the agency did, at one point in the process,
assign scores to the applicants, suggesting that it would be feasible to rank the
candidates. IAF, Tab 18 at 4-6. The parties have not directly addressed the
applicability of rating and ranking to the hiring of DAU Professors. Thus,
we cannot conclude that hiring professors is inconsistent with the passover
provision at 5 U.S.C. § 3318. Again, we recognize that the appellant was not
among the Best Qualified candidates, and thus the passover requirements may not
be implicated. However, we decline to make this finding based on this
incomplete record without affording the appellant his requested hearing on the
merits of his VEOA appeal.
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. | Williams_EricDC-3330-22-0113-I-1__Remand_Order.pdf | 2024-04-09 | ERIC WILLIAMS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3330-22-0113-I-1, April 9, 2024 | DC-3330-22-0113-I-1 | NP |
1,835 | https://www.mspb.gov/decisions/nonprecedential/Clark_Christopher_A_DC-0752-19-0601-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER A. CLARK,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-0752-19-0601-I-1
DATE: April 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher A. Clark , Waldorf, Maryland, pro se.
T. Brooks Anderson , 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 appeal of a 30-day suspension 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 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, an employee of the Federal Bureau of
Investigation (FBI), acknowledges that he is not a preference-eligible veteran.
Petition for Review (PFR) File, Tab 3 at 2. An FBI employee may file a Board
appeal of an adverse action under chapter 75 of title 5 of the U.S. Code only if he
is covered by the definition of “employee” set forth in 5 U.S.C. § 7511(a)(1)(B).
5 U.S.C. § 7511(b)(8). To meet this requirement, the FBI employee must (1) be a
preference eligible in the excepted service and (2) have completed 1 year of
current continuous service in the same or a similar position. 5 U.S.C. § 7511(a)
(1)(B), (b)(8); see Patterson v. Department of Justice , 52 M.S.P.R. 651, 653
(1992); see also Parkinson v. Department of Justice , 874 F.3d 710, 713 (Fed. Cir.
2017) (en banc) (recognizing that, except for certain preference eligibles, FBI
employees are not covered by chapter 75), cert. denied, 138 S. Ct. 2650 (2018).
Here, because the appellant concedes that he does not meet the first criterion, we
discern no basis to disturb the administrative judge’s reasoned conclusion that the2
Board lacks jurisdiction over the matter. PFR File, Tab 3 at 2; Initial Appeal
File, Tab 8, Initial Decision at 2-3.2
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS
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 With his petition for review, the appellant provides, for the first time, copies of three
letters related to his suspension. PFR File, Tab 3 at 7-10. However, he presents no
evidence or argument to suggest these letters were unavailable prior to close of the
record, as required. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980);
5 C.F.R. § 1201.115(d). Moreover, the letters that he provides are immaterial to the
threshold issue of Board jurisdiction. See Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) (explaining that the Board generally will not grant a petition for review
based on new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision).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 you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction.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
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
for Merit Systems Protection Board appellants before the 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 | Clark_Christopher_A_DC-0752-19-0601-I-1__Final_Order.pdf | 2024-04-09 | CHRISTOPHER A. CLARK v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-0752-19-0601-I-1, April 9, 2024 | DC-0752-19-0601-I-1 | NP |
1,836 | https://www.mspb.gov/decisions/nonprecedential/Wilson_AngelaAT-0752-22-0515-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA WILSON,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
AT-0752-22-0515-I-1
DATE: April 9, 2024
THIS ORDER IS NONPRECEDENTIAL1
Tabitha Lyles , Jacksonville, Florida, for the appellant.
Melanie Stratton , Esquire, and Monica Moukalif , Esquire, Atlanta,
Georgia, 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
dismissed the appellant’s 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
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 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 agency’s petition for review.
However, for the reasons discussed below, we VACATE the initial decision and
REMAND the case to the Atlanta Regional Office for further adjudication in
accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
On April 8, 2022, the agency issued a notice of proposed removal to the
appellant, a GS-12 Workers’ Compensation Claims Examiner, based on a charge
of excessive absence. Wilson v. Department of Labor , MSPB Docket
No. AT-0752-22-0515-I-1, Initial Appeal File (0515 IAF), Tab 6 at 216-24. After
the proposal notice was issued, the appellant filed an appeal with the Board,
which the administrative judge dismissed for lack of jurisdiction, finding that the
appellant had prematurely filed her appeal because the agency had not yet issued
a decision on the proposal notice. Wilson v. Department of Labor , MSPB Docket
No. AT-0752-22-0350-I-1, Initial Appeal File (0350 IAF), Tab 18.
After the appellant’s first appeal was dismissed, the agency issued a
decision removing the appellant from Federal service effective July 5, 2022.
0515 IAF, Tab 7 at 77-82. The appellant then filed this instant appeal, attaching
a copy of the proposed removal, as well as the first page of the agency’s removal
decision. 0515 IAF, Tab 1 at 9-18. The administrative judge issued an
acknowledgment order, 0515 IAF, Tab 2, and the agency filed its response to the2
appeal, confirming that it had issued a decision removing the appellant from
Federal service, 0515 IAF, Tab 5 at 4, 12. The agency also included a complete
copy of the agency’s decision letter in its agency file. 0515 IAF, Tab 7 at 77-82.
However, in the agency file, the agency also included a copy of its response to the
appellant’s previous appeal, MSPB Docket No. AT-0752-22-0350-I-1, which
asserted that the agency had not yet issued a final decision on the proposed
removal. 0515 IAF, Tab 6 at 12-26.
The administrative judge issued a show cause order, explaining that it
appeared that the agency “may not yet have removed the appellant,” setting forth
the applicable legal standard for establishing jurisdiction, and ordering the
appellant to show cause as to why the appeal should not be dismissed for lack of
jurisdiction. 0515 IAF, Tab 8. Neither party responded to the show cause order,
and the administrative judge dismissed the appeal, finding that the agency had not
yet issued a decision on the proposed removal, and therefore, the Board lacked
jurisdiction over the appeal. 0515 IAF, Tab 9, Initial Decision (ID) at 1-2.
The agency has filed a petition for review, explaining that, while it agrees
with the administrative judge’s decision to dismiss the appeal, his rationale was
incorrect because it was based on the appellant’s previous appeal, MSPB Docket
No. AT-0752-22-0350-I-1. Wilson v. Department of Labor , MSPB Docket
No. AT-0752-22-0515-I-1, Petition for Review (PFR) File, Tab 1 at 4. Therefore,
the agency requests that the Board “amend” the initial decision to reflect that the
agency issued a decision removing the appellant from Federal service and dismiss
the appeal pursuant to the reasons the agency previously set forth.2 Id. at 4-6.
The appellant has not filed a response to the agency’s petition for review.
An initial decision must identify all material issues of fact and law,
summarize the evidence, resolve issues of credibility, and include the
2 The agency has argued, among other things, that the appeal should be dismissed
because removal was justified, it was not the result of discrimination, and, because the
appellant had voluntarily initiated the process for disability retirement, the Board
lacked jurisdiction over her “pending voluntary retirement.” PFR File, Tab 1 at 5.3
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests. Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980). Here, it is undisputed that the agency
issued a final decision removing the appellant from Federal service effective
July 5, 2022. 0515 IAF, Tab 8; PFR File, Tab 1 at 5. Thus, the administrative
judge erred in finding that the Board lacked jurisdiction because the agency had
not yet issued a decision on its proposal notice. ID at 1-2. Accordingly, we
vacate the initial decision and remand this matter for further adjudication.
On review, the agency asserts that the appellant “voluntarily initiated the
process for disability retirement” and the Board lacks jurisdiction over her
“pending voluntary retirement.” PFR File, Tab 1 at 5. However, as stated above,
there is documentation in the record establishing that the agency issued a decision
removing the appellant from Federal service effective July 5, 2022. 0515 IAF,
Tab 7 at 77-82. Accordingly, on remand, the administrative judge should clarify
whether the appellant was removed from Federal service, or whether she retired
or resigned from Federal service. If the appellant retired or resigned, then the
administrative judge should provide her with notice of the applicable
jurisdictional standard and an opportunity to present evidence and argument
establishing Board jurisdiction over her retirement or resignation.3
3 If the appellant has retired, the administrative judge should be cognizant that, under
5 U.S.C. § 7701(j), an individual’s right to appeal her removal to the Board is not
impacted by her decision to retire on or before the effective date of the removal action.
Mays v. Department of Transportation , 27 F.3d 1577, 1579-81 (Fed. Cir. 1994); cf.
Jenkins v. Merit Systems Protection Board , 911 F.3d 1370, 1373-75 (Fed. Cir. 2019)
(holding that an appeal in which a removal has been cancelled and its consequences
eliminated does not implicate 5 U.S.C. § 7701(j) because the case no longer involves a
removal).4
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.5 | Wilson_AngelaAT-0752-22-0515-I-1__Remand_Order.pdf | 2024-04-09 | ANGELA WILSON v. DEPARTMENT OF LABOR, MSPB Docket No. AT-0752-22-0515-I-1, April 9, 2024 | AT-0752-22-0515-I-1 | NP |
1,837 | https://www.mspb.gov/decisions/nonprecedential/Garcia_Crystal_D_DA-0752-18-0370-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRYSTAL D. GARCIA,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-18-0370-I-1
DATE: April 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eloise R. Stripling , Cibolo, Texas, for the appellant.
Randy Ramirez , Esquire, San Antonio, 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. On petition for review, the appellant challenges the
administrative judge’s findings regarding the merits of the charges and her
affirmative defenses. 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 and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
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 The appellant does not argue on review, as she did below, that the two charges at issue
in this case should have been merged, a claim the administrative judge rejected. To the
extent the administrative judge erred in this regard, any such error did not prejudice the
appellant’s substantive rights because the record supports removal based on the merged
charge and contains no evidence that the agency would have imposed a lesser penalty
based only on a single charge. Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984). Moreover, the agency’s Table of Penalties provides for a penalty up to
removal for a first offense of Failure to Follow Procedures where, as here, the violation
concerned an action that endangered the safety of persons or property. Initial Appeal
File, Tab 5 at 49.
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. 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 | Garcia_Crystal_D_DA-0752-18-0370-I-1__Final_Order.pdf | 2024-04-09 | CRYSTAL D. GARCIA v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-18-0370-I-1, April 9, 2024 | DA-0752-18-0370-I-1 | NP |
1,838 | https://www.mspb.gov/decisions/nonprecedential/Duzenski_Michael_E_CH-0752-22-0043-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL E. DUZENSKI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-22-0043-I-1
DATE: April 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Colleen M. McLaughlin , Esquire, Wheaton, Illinois, for the appellant.
Nicholas Peluso , Esquire, Westchester, 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 removal appeal as settled. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed by 15 months
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant filed an appeal challenging his removal from Federal service
in November 2021. Initial Appeal File (IAF), Tab 1. Shortly thereafter, the
agency filed a document entitled “Confidential Settlement Agreement and
Release,” which provided “full and final resolution and settlement before the
MSPB.” IAF, Tab 5 at 4-7. The administrative judge issued an initial decision
dismissing the appeal as settled and entered the agreement into the record for
enforcement purposes. IAF, Tab 6, Initial Decision (ID) at 2-3. The initial
decision became final on January 18, 2022, when neither party filed a petition for
review. ID at 3.
On April 20, 2023, the appellant filed a petition for review and a motion to
waive the time limit for filing a petition for review. Petition for Review (PFR)
File, Tabs 2-3. In his petition for review, the appellant asked the Board to vacate
the settlement agreement, alleging that (1) it was invalid because it lacked
consideration and (2) the agency failed to notify the appellant of the proper
procedures for filing a mixed case appeal and/or misled him about mixed case
filing procedures. PFR File, Tab 2 at 28-36. He also alleged that, if the
agreement was valid, the agency was in breach. Id. at 20-27.
In support of his motion to waive the time limit, the appellant’s counsel
filed a declaration asserting that the appellant retained her in June 2022 for a
separate matter and she learned in November 2022, after reviewing the
appellant’s files, that the settlement agreement resolving this Board appeal lacked
consideration. Id. at 38-39. She stated that, in November 2022, she requested
information and documentation related to the settlement agreement and conducted
research. Id. On December 5, 2022, counsel for the appellant emailed the agency
and alleged that it was in breach of the settlement agreement and that the
agreement was “illusory.” Id. at 40-41. In early December 2022, counsel for the
appellant became ill, which required her to work part-time until February 2023.
Id. at 39-40. During this time, she continued to conduct legal research related to2
the settlement agreement and encountered difficulties in doing so. Id. at 39-43.
She also emailed the agency on several occasions between December 2022 and
March 2023 to discuss her concerns about the settlement agreement before filing
a petition for review on April 20, 2023. Id. The agency has not filed a response
to the appellant’s filing.
DISCUSSION OF ARGUMENTS ON REVIEW
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 he received the initial decision. 5 C.F.R.
§ 1201.114(e). 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(g). To establish good
cause for an untimely filing, the appellant must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
See Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201, ¶ 5 (2014). To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his excuse and showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune that
similarly shows a causal relationship to his inability to timely file his petition for
review. See 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 appellant’s petition for review was filed 15 months after the initial
decision became final. ID at 3. Assuming, without deciding, that the appellant
obtained new and material evidence shedding light on the validity of the
settlement agreement in November 2022, we find that he did not act promptly by
filing his petition for review approximately 5 months later. See Graves v.3
Department of Veterans Affairs , 82 M.S.P.R. 38, ¶ 12 (1999) (finding that the
appellant failed to show good cause for his untimely petition for review because
he waited over 1 month after discovering the alleged new evidence of fraud in a
settlement agreement before filing a pleading with the Board). Although we are
sympathetic to the illness of the appellant’s counsel, we do not find that it
excuses the 5-month delay in filing the petition for review after she learned of the
settlement agreement’s purported invalidity in light of the fact that she performed
other work during the same time period. PFR File, Tab 2 at 38-41.
We therefore dismiss the petition for review as untimely filed. This is the
final decision of the Merit Systems Protection Board regarding the timeliness of
the petition for review. The initial decision remains the final decision of the
Board regarding the removal appeal. We forward the appellant’s petition for
review to the Central Regional Office for adjudication as a petition for
enforcement. See 5 C.F.R. § 1201.182(a). Our findings as to the timeliness of
the instant petition for review do not speak to the timeliness of the appellant’s
petition for enforcement. See Davis v. Department of the Navy , 55 M.S.P.R. 109,
112 n.1 (1992).
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
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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Duzenski_Michael_E_CH-0752-22-0043-I-1__Final_Order.pdf | 2024-04-09 | MICHAEL E. DUZENSKI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-22-0043-I-1, April 9, 2024 | CH-0752-22-0043-I-1 | NP |
1,839 | https://www.mspb.gov/decisions/nonprecedential/Marable_KatrinaAT-0752-19-0037-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATRINA MARABLE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-19-0037-I-1
DATE: April 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Katrina Marable , Lake Placid, Florida, pro se.
Tanya Burton , Bay Pines, 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
dismissed for lack of jurisdiction her appeal of her termination from her position
in the excepted service during her probationary/trial period. On petition for
review, the appellant challenges the merits of the agency action but does not
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).
proffer any evidence or argument relevant to jurisdiction.2 Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the 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
2 The appellant’s petition for review was untimely filed on March 8, 2019, one day after
the filing deadline. Petition for Review File, Tab 1 at 2. We do not reach the issue of
the timeliness of the appellant’s petition for review, however, because the appellant’s
petition does not meet the Board’s criteria for review.
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
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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)
(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Marable_KatrinaAT-0752-19-0037-I-1__Final_Order.pdf | 2024-04-09 | KATRINA MARABLE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-19-0037-I-1, April 9, 2024 | AT-0752-19-0037-I-1 | NP |
1,840 | https://www.mspb.gov/decisions/nonprecedential/Brookins_KarlCB-1205-18-0021-U-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARL BROOKINS,
Petitioner,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
CB-1205-18-0021-U-1
DATE: April 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Karl Brookins , Honolulu, Hawaii, pro se.
Katherine Brewer , Esquire, Washington, D.C., for the Office of Personnel
Management.
Deborah E. Yim , Esquire, Lakewood, Colorado, for the Department of the
Interior.
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).
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The petitioner filed a petition for review of an initial decision that
dismissed for lack of jurisdiction his appeal from the decision of the Department
of Interior (DOI) to place him on a performance improvement plan (PIP). In his
petition, the petitioner alleged that he was not only challenging the initial
decision as erroneous but also seeking review of DOI’s implementation of Office
of Personnel Management (OPM) regulations relating to performance appraisals
and “[r]equirements associated with the opportunity to demonstrate acceptable
performance.” Request File (RF), Tab 1 at 4. We consider these allegations
separately pursuant to our original jurisdiction under 5 U.S.C. § 1204(f), which
authorizes the Board to review whether an OPM regulation, either on its face or
as implemented, would require an employee to commit a prohibited personnel
practice (PPP). For the reasons set forth below, we DENY the petitioner’s
request for regulation review.
BACKGROUND
The petitioner was a Marine Fish Biologist with the National Park Service,
a DOI subagency, stationed in Fort Collins, Colorado. Brookins v. Department of
the Interior, MSPB Docket No. DE-3443-18-0140-I-1, Initial Appeal File
(0140 IAF), Tab 1 at 1. By memorandum dated January 11, 2018, DOI informed
him that he was being placed on a PIP. Id. at 8-11. On January 29, 2018, the
petitioner filed an appeal with the Board. Id. at 1-5. He alleged that, by issuing
the PIP, DOI committed PPPs because the PIP “a) significantly increased [his]
duties, responsibilities or working conditions; b) concerns education or training
expected to lead to performance evaluation; c) concerns pay and benefits; and2
d) likely qualifies as a corrective action.” Id. at 5. He further alleged that the
PIP violated various statutes, as well as OPM regulations governing performance
management and performance-based actions. Id.
In an acknowledgement order, the administrative judge advised the
petitioner that the Board generally does not have jurisdiction over the placement
of an employee on a PIP. 0140 IAF, Tab 2 at 3. The administrative judge
directed the petitioner to file evidence and argument in support of the Board’s
jurisdiction. Id. at 4. In response, the petitioner alleged that the Board had
jurisdiction over the alleged PPPs under its appellate jurisdiction, original
jurisdiction, “or both.” 0140 IAF, Tab 5 at 3. He suggested that the Board had
original jurisdiction over his allegations that the agency committed PPPs and
violated sections of OPM regulations. Id.
On March 7, 2018, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. 0140 IAF, Tab 9, Initial Decision
(0140 ID) at 1. The administrative judge noted that the Board lacks jurisdiction
over PIPs when they are not associated with a loss of grade or pay. 0140 ID at 3.
He found that the petitioner had not alleged facts falling within any of the
exceptions to this general rule. Id. The administrative judge further stated that
the petitioner’s allegations that DOI committed PPPs did not constitute an
independent source of Board jurisdiction. 0140 ID at 4. Finally, the
administrative judge addressed the petitioner’s references to various statutes and
regulations, finding that either they only apply to an employee who has been
removed or reduced in grade, which had not happened to the petitioner, or that
they did not confer Board jurisdiction independently. Id. Therefore, the
administrative judge concluded that the petitioner failed to make nonfrivolous
allegations of jurisdiction and dismissed the appeal without a hearing. 0140 ID
at 4-5. The administrative judge did not address whether the petitioner’s
allegations were sufficient to invoke the Board’s original jurisdiction to review
the implementation of OPM regulations.3
On April 10, 2018, the petitioner filed a petition for review of the initial
decision asserting that the administrative judge erred in dismissing his appeal for
lack of jurisdiction. We addressed those arguments in a separate final decision in
Brookins v. Department of the Interior , MSPB Docket No. DE-3443-18-0140-I-1,
Final Order (Jan. 18, 2023). Here, we focus solely on the petitioner’s allegations
invoking our original jurisdiction under 5 U.S.C. § 1204(f). Specifically, the
petitioner states that he wishes to challenge DOI’s implementation of OPM
regulations through “[r]equirements associated with the opportunity to
demonstrate acceptable performance.” RF, Tab 1 at 4. He states that the OPM
regulations at issue are 5 C.F.R. parts 430 and 432. Id. at 4. He further “alleges
that the Requirements imposed by the Agency were the result of violating
Performance Appraisal System and Program regulations and laws; these are
violations that are also a prohibited personnel practice.” Id. at 9.
In its response, OPM states that the petitioner’s discussion of OPM
regulations “is almost indecipherable.” RF, Tab 4 at 5. OPM states that, at most,
the petitioner is challenging the regulation as applied by DOI rather than the
regulation itself. Id. at 7. OPM notes that the petitioner has not identified the
PPP at issue and therefore asserts that the Board should deny the petitioner’s
request for regulation review. Id. at 7-8. In its response, DOI states only that it
concurs with OPM. RF, Tab 5 at 4. The petitioner filed a reply in which he
agrees that he is seeking to raise an “as applied” challenge, but he does not
address the specific PPP at issue. RF, Tab 6 at 5.
ANALYSIS
The Board has original jurisdiction to review rules and regulations
promulgated by OPM. 5 U.S.C. § 1204(f). In exercising its jurisdiction, the
Board is authorized to declare an OPM rule or regulation invalid on its face if the
Board determines that such provision would, if implemented by any agency, on
its face, require any employee to commit a PPP as defined by 5 U.S.C. § 2302(b).4
5 U.S.C. § 1204(f)(2)(A). Similarly, the Board has the authority to determine that
an OPM regulation has been invalidly implemented by an agency if the Board
determines that such provision, as it has been implemented by the agency through
any personnel action taken by the agency or through any policy adopted by the
agency in conformity with such provision, has required any employee to commit a
PPP. 5 U.S.C. § 1204(f)(2)(B); see Prewitt v. Merit Systems Protection Board ,
133 F.3d 885, 887 (Fed. Cir. 1998).
The Board’s regulations direct the individual requesting review to provide
the following information: the requester’s name, address, and signature; a
citation identifying the regulation being challenged; a statement (along with any
relevant documents) describing in detail the reasons why the regulation would
require an employee to commit a PPP, or the reasons why the implementation of
the regulation requires an employee to commit a PPP; specific identification of
the PPP at issue; and a description of the action the requester would like the
Board to take. 5 C.F.R. § 1203.11(b); see Di Jorio v. Office of Personnel
Management, 54 M.S.P.R. 498, 500 (1992).
Here, the petitioner states he is challenging DOI’s implementation of OPM
regulations, and he identifies 5 C.F.R. parts 430 and 432 as the OPM regulations
at issue. RF, Tab 1 at 4. However, the only provision that the petitioner
specifically mentions is 5 C.F.R. § 430.203. RF, Tab 1 at 6, 8. He states that
DOI “misuse[d]” the “§ 430.203 critical element term.” RF, Tab 1 at 8.
Section 430.203 defines “critical element” as “a work assignment or
responsibility of such importance that unacceptable performance on the element
would result in a determination that an employee’s overall performance is
unacceptable.” He also generally asserts that DOI misapplied OPM regulations
related to performance appraisals and “[r]equirements associated with the
opportunity to demonstrate acceptable performance.” RF, Tab 1 at 4.
The petitioner, however, has failed to provide reasons explaining why
DOI’s purportedly incorrect application of 5 C.F.R. parts 430 and 432 requires an5
employee to commit a PPP. Moreover, the petitioner has not specifically
identified the PPP at issue. In the absence of such allegations, the petitioner has
not met his burden under 5 C.F.R. § 1203.11(b). See Garcia v. Office of
Personnel Management , 109 M.S.P.R. 266, ¶ 6 (2008) (where a petitioner fails to
explain how a regulation requires the commission of a PPP or fails to identify the
PPP at issue, the Board has denied the regulation review request).
ORDER
Accordingly, the petitioner’s request for regulation review is denied. This
is the final decision of the Merit Systems Protection Board in this proceeding.
Title 5 of the Code of Federal Regulations, section 1203.12(b) (5 C.F.R.
§ 1203.12(b)).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Brookins_KarlCB-1205-18-0021-U-1_Final_Order.pdf | 2024-04-09 | null | CB-1205-18-0021-U-1 | NP |
1,841 | https://www.mspb.gov/decisions/nonprecedential/Gilewicz_MichelleDE-1221-20-0070-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE GILEWICZ,
Appellant,
v.
OFFICE OF SPECIAL COUNSEL,
Agency.DOCKET NUMBER
DE-1221-20-0070-W-1
DATE: April 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michelle Gilewicz , Wichita, Kansas, pro se.
Amy Beckett , 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 her individual right of action (IRA) appeal against the Office of Special
Counsel (OSC) for lack of jurisdiction. On petition for review, the appellant
argues that OSC made errors of material fact in terminating its investigation but
she does not dispute the administrative judge’s determination that the Board lacks
jurisdiction over OSC’s actions. 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 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 | Gilewicz_MichelleDE-1221-20-0070-W-1_Final_Order.pdf | 2024-04-09 | MICHELLE GILEWICZ v. OFFICE OF SPECIAL COUNSEL, MSPB Docket No. DE-1221-20-0070-W-1, April 9, 2024 | DE-1221-20-0070-W-1 | NP |
1,842 | https://www.mspb.gov/decisions/nonprecedential/Mamaril_GenaroDC-0752-17-0034-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GENARO MAMARIL,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0752-17-0034-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Ashley Geisendorfer , 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 suspension 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).
BACKGROUND
The appellant filed the instant appeal, alleging that he was constructively
suspended for more than 14 days after the agency denied his request for
reasonable accommodation. Initial Appeal File (IAF), Tab 1 at 3, 11. On
December 4, 2017, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 26, Initial Decision (ID) at 1. The
initial decision stated it would become final on January 8, 2018, unless a petition
for review was filed by that date. ID at 4-5.
The appellant filed an untimely petition for review on February 26, 2019.
Petition for Review (PFR) File, Tab 1. The agency has filed a response urging, as
relevant here, that the petition for review be dismissed as untimely filed. PFR
File, Tab 3 at 5-7. The appellant has replied to the agency’s response. PFR File,
Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
To be timely, a petition for review must be filed within 35 days of the date
of the initial decision’s issuance 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 he received the initial decision. 5 C.F.R. § 1201.114(e). As the party filing
the petition for review, the appellant bears the burden of proof with
regard to timeliness, which he must establish by preponderant evidence.
Perry v. Office of Personnel Management, 111 M.S.P.R. 337, ¶ 5 (2009); see
5 C.F.R. § 1201.56(b)(2)(i)(B) (explaining that an appellant has the burden of
proving the timeliness of his appeal by preponderant evidence). The Board will
excuse the late filing of a petition for review only on a showing of good cause for
the delay. Perry, 111 M.S.P.R. 337, ¶ 6; 5 C.F.R. § 1201.114(g). To establish
good cause for an untimely filing, a party must show that he exercised
due diligence or ordinary prudence under the particular circumstances of the
case. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).2
To determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune which
similarly shows a causal relationship to his inability to timely file his petition.
Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d per
curiam, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Here, the administrative judge informed the appellant that the initial
decision had a January 8, 2018 finality date, unless either party filed a petition for
review by that date. ID at 4-5. Although the appellant claims that he did not
receive the initial decision, the decision contained a certificate of service
certifying that it had been mailed to both the appellant and his representative at
their addresses of record on December 4, 2017. IAF, Tab 1 at 2, 6, Tab 27. A
letter properly addressed, stamped, and mailed is presumed to have been duly
delivered to the addressee. Gross v. U.S. Postal Service, 103 M.S.P.R. 334, ¶ 7
(2006); Hall v. Defense Logistics Agency, 69 M.S.P.R. 17, 20 (1995), aff’d per
curiam, 106 F.3d 426 (Fed. Cir. 1997) (Table). Further, receipt by an appellant’s
duly designated representative constitutes constructive receipt by the appellant.
Darby v. U.S. Postal Service, 29 M.S.P.R. 582, 583 (1986). Thus, the initial
decision is presumed to have been delivered.
However, on December 15, 2018, the appellant’s representative sent a fax
to the regional office indicating, under penalty of perjury, that neither he nor the
appellant had received the initial decision, and he requested that they be served.
PFR File, Tab 1 at 7-9. Attached to that fax were March 13 and October 3, 2018
statements signed by the appellant, in which he similarly stated under penalty of
perjury that he had not yet received a copy of the initial decision. Id. at 10-11.
The appellant and his representative’s sworn statements are sufficient evidence
to rebut the presumption of delivery. PFR File, Tab 1 at 11; see, e.g.,3
Foust v. Department of the Treasury, 80 M.S.P.R. 477, ¶¶ 6, 8 (1998) (finding
that an appellant’s sworn statement on her initial appeal as to the date she
received the agency’s removal decision, and her subsequent unsworn statement
with her petition for review as to the same, were sufficient to rebut the
presumption of delivery of the decision). In response to the representative’s
December 15, 2018 letter, on December 17, 2018, the regional office faxed him a
copy of the initial decision. PFR File, Tab 4 at 3, 7-19. Thus, the Board
finds that the appellant constructively received the initial decision on
December 17, 2018.
Based on that receipt date, the appellant’s petition for review would have
been due on or before January 16, 2019, but the filing deadline was extended due
to the partial Government shutdown from December 22, 2018, through
January 25, 2019. Merit Systems Protection Board Press Release, Status of the
U.S. Merit Systems Protection Board During a Partial Government Shutdown
(Dec. 21, 2018),
https://www.mspb.gov/publicaffairs/press_releases/Status_of_the_MSPB_During
_a_Partial_Government_Shutdown_1580906.pdf (last visited Apr. 8, 2024).
Thus, the deadline to file the petition for review was extended to February 19,
2019. The appellant, through his attorney, filed his petition for review on
February 26, 2019, 7 days past the deadline.2 PFR File, Tab 1. Thus, his petition
for review was untimely filed. See Belcher v. U.S. Postal Service, 101 M.S.P.R.
58, ¶ 7 (2006) (declining to excuse a 6-day filing delay when the appellant failed
to show due diligence, even though he was proceeding pro se and the filing delay
was not particularly lengthy); Lockhart v. Office of Personnel Management,
2 On review, the appellant argues that 5 days were added to his deadline to respond
under 5 C.F.R. § 1201.23. PFR File, Tab 1 at 2. However, the controlling regulation is
5 C.F.R. § 1201.114(e), which concerns the deadline for filing a petition for review.
Under that regulation, because the appellant has shown the initial decision was received
more than 5 days after issuance, his 30-day deadline began to run on the date he
constructively received the initial decision, which was when it was received by his
representative via fax on December 17, 2018. PFR File, Tab 4 at 3, 7-19. 4
94 M.S.P.R. 396, ¶¶ 7-8 (2003) (declining to excuse a 5-day delay in filing a
petition for review when the pro se appellant failed to show good cause for the
delay).
The appellant has offered no explanation for this delay in filing his petition
for review after his receipt of the initial decision. His arguments regarding the
merits of the initial decision dismissing his appeal for lack of jurisdiction do not
establish good cause for his untimely filing. PFR File, Tab 1 at 3; see Wright v.
Department of the Treasury, 113 M.S.P.R. 124, ¶ 7 (2010) (finding that
arguments regarding the merits of a case do not establish good cause for an
untimely filed petition for review).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s constructive suspension appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Mamaril_GenaroDC-0752-17-0034-I-1__Final_Order.pdf | 2024-04-08 | GENARO MAMARIL v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-17-0034-I-1, April 8, 2024 | DC-0752-17-0034-I-1 | NP |
1,843 | https://www.mspb.gov/decisions/nonprecedential/Monnig_Allanda_F_DC-0752-21-0433-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALLANDA F. MONNIG,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-21-0433-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kristen Farr , Esquire, Washington, D.C., for the appellant.
Zlatko Jurisic , 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 initial decision, which
sustained the appellant’s 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
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 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 initial decision regarding the appellant’s disability
discrimination and retaliation claims on review, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
In April 2021, the agency removed the appellant from her Human
Resources Specialist (Injury Compensation) position based on the charge of
medical inability to perform the essential duties of her position. Initial Appeal
File (IAF), Tab 4 at 12, 40-46. In support of its action, the agency cited two
letters from the appellant’s treating physicians—one stating that the appellant was
totally disabled and unable to work since October 15, 2020, due to Postural
Orthostatic Tachycardic Syndrome, which the letter identified as a chronic
condition without known cure, and another stating that the appellant was totally
and permanently disabled due to other conditions as of October 15, 2020. Id.
at 37, 39-40, 44. The agency also cited the fact that the appellant had not
reported for duty since October 9, 2020, for medical reasons. Id. at 40.
In her appeal to the Board, the appellant argued, among other things, that
her removal constituted disability discrimination and retaliation for both her
reasonable accommodation request and an equal employment opportunity (EEO)
complaint in which she also alleged disability discrimination. IAF, Tab 10 at 8-9,
39. The appellant further alleged that the disparate treatment she received due to
her disability and the agency’s failure to provide her a timely reasonable
3
accommodation aggravated her medical condition, and that the agency subjected
her to a hostile work environment. Id. at 5, 9.
After holding the appellant’s requested hearing, the administrative judge
affirmed the appellant’s removal, finding that the agency proved the charge by
preponderant evidence, a nexus between its action and the efficiency of the
service, and the reasonableness of its penalty. IAF, Tab 19, Initial Decision (ID)
at 17-19, 25-26. In analyzing the charge, the administrative judge determined
that the appellant’s medical documentation and the testimony of witnesses—
including that of the appellant herself—made clear that the appellant was unable
to perform the duties of her position, and that the agency proved that the
appellant’s disability could not be reasonably accommodated. ID at 17-19. The
administrative judge also found that, because the appellant failed to show that she
could perform the essential functions of her position with a reasonable
accommodation, she failed to show that she was a “qualified individual with a
disability,” as required to prevail under either the disparate treatment or failure to
accommodate theories of her disability discrimination affirmative defense.
ID at 22. Finally, the administrative judge rejected the appellant’s affirmative
defense of retaliation for either her EEO complaint or her reasonable
accommodation request. ID at 23-24. As part of her analysis of the retaliation
affirmative defense, the administrative judge determined that the appellant failed
to establish the existence of a hostile work environment. Id.
On review, among other claims, the appellant repeats her arguments that
her removal constituted disability discrimination and retaliation for her EEO
activity, and that the agency’s failure to provide her with a reasonable
accommodation and creation of a hostile work environment exacerbated her
medical condition. Petition for Review (PFR) File, Tab 1 at 7-15. The agency
has filed a response. PFR File, Tab 3.
4
The appellant failed to prove her disability discrimination affirmative defense.
The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Pridgen v. Office of Management
& Budget, 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the
standards of the Americans with Disabilities Act, as amended by the Americans
with Disabilities Act Amendments Act of 2008. Id. Therefore, we apply those
standards to determine if there has been a Rehabilitation Act violation. Id.
A “qualified individual” is an individual who, with or without reasonable
accommodation, can perform the essential functions of her position. 42 U.S.C.
§ 12111(8). It is illegal for an employer to “discriminate against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). An employer is also
required to provide reasonable accommodations to an otherwise qualified
individual with a disability. 42 U.S.C. § 12112(b)(5). In Haas v. Department of
Homeland Security , 2022 MSPB 36, ¶ 29, we clarified that only an otherwise
qualified individual with a disability is entitled to relief under the Rehabilitation
Act for a claim of status-based discrimination or denial of reasonable
accommodation.
The administrative judge correctly found that the appellant failed to make
the threshold showing that she was a qualified individual with a disability. ID
at 22. It is undisputed that the appellant could not perform her essential duties
without a reasonable accommodation, and the administrative judge correctly
found that the appellant failed to show that she could perform the essential
functions of her position with a reasonable accommodation. Id. As the
administrative judge discussed, the agency implemented maximum telework in
March 2020, due to the COVID-19 pandemic, which allowed the appellant to
work within the conditions she sought in her February 2020 reasonable
accommodation request—full-time telework and the ability to control her
environment. Id.; IAF, Tab 16, Hearing Recording (HR) (testimony of the
5
appellant, the appellant’s supervisor, and the appellant’s second-line supervisor).
Nevertheless, by October 15, 2020, despite being allowed to work within her
desired conditions for approximately 7 months, the appellant’s medical condition
deteriorated to the point of totality and permanence. IAF, Tab 4 at 37, 39. It is
clear from the record—including from testimony offered by the appellant and her
physician—that from that point, there was no reasonable accommodation that
would have allowed her to perform the essential functions of her position. Id.;
HR (testimony of the deciding official, the appellant’s physician, and the
appellant). For all of these reasons, we affirm the administrative judge’s finding
that the appellant failed to establish her disability discrimination affirmative
defense.
The appellant failed to prove her retaliation affirmative defense.
In addressing the appellant’s claim of retaliation for protected activity,
namely her EEO complaint alleging disability discrimination and her reasonable
accommodation request, the administrative judge, citing Cloonan v. U.S. Postal
Service, 65 M.S.P.R. 1, 4 (1994), stated that the appellant was required to show
the following: (a) she engaged in protected activity; (b) the accused official knew
of the protected activity; (c) the adverse employment action under review could,
under the circumstances, have been retaliation; and (d) there was a genuine nexus
between the retaliation and the adverse employment action. ID at 23. The
administrative judge also stated that, if the appellant met this burden, the agency
must show that it would have taken the action even absent the protected activity.
Id.
After the initial decision was issued, we held in Pridgen that the
appropriate standard to apply to analyze an appellant’s retaliation claim under the
Rehabilitation Act, which prohibits discriminating against any individual
“because such individual” has engaged in protected activity, 42 U.S.C.
§ 12203(a), is the “but-for” standard, meaning that an appellant has the burden of
proving that her protected activity was “a but-for” cause of the agency’s action.
6
Pridgen, 2022 MSPB 31, ¶ 46. In doing so, we overruled the Board’s finding in
Southerland v. Department of Defense , 119 M.S.P.R. 566, ¶¶ 23-25 (2013), that
an agency can avoid liability by proving that it would have taken the same action
absent an improper motive, because if prior protected activity is a “but-for” cause
of retaliation, by definition, there is no other proper reason for that action.
Pridgen, 2022 MSPB 31, ¶ 47. Both requesting a reasonable accommodation and
opposing disability discrimination are activities protected by the Rehabilitation
Act. Id., ¶ 44.
Despite the administrative judge’s citation of now-obsolete standards, the
appellant has not established that the agency would not have removed her but for
her protected activity. The administrative judge correctly found that the agency
had a legitimate reason for not returning the appellant to her workplace and that
the record was devoid of any evidence that any agency official was motivated to
remove the appellant because of her protected activity. ID at 23. We therefore
affirm the administrative judge’s finding, as modified, to find that the appellant
did not prove that her protected activity was a but-for cause of her removal.
The administrative judge also correctly found in her analysis of the
appellant’s retaliation affirmative defense that there was insufficient evidence to
show that the appellant’s working conditions rose to the level of a hostile work
environment. ID at 24. Although the appellant repeats her version of the facts on
review, PFR File, Tab 1 at 4-7, she fails to identify any error in the administrative
judge’s findings. To the extent that the appellant attempts to raise new hostile
work environment claims on review, id. at 14-16, we find that any such claims are
not properly before the Board because the appellant did not clearly raise
an affirmative defense based on a hostile work environment in her prehearing
submission, IAF, Tab 10 at 8-9, the administrative judge did not identify hostile
work environment as an issue in the prehearing conference summary and order,
IAF, Tab 12, and the appellant was given the opportunity to object to the
summary but did not do so, id. at 9; see Yovan v. Department of the Treasury ,
7
86 M.S.P.R. 264, ¶ 7 (2000) (“[A]n appellant is deemed to have abandoned a
discrimination claim if it is not included in the list of issues in a prehearing
conference summary, or status conference summary, and the party was afforded
an opportunity to object to the conference summary.”).
Finally, the appellant argues on review that the agency’s failure to
accommodate her disability prior to her becoming medically unable to perform
her duties, along with her supervisor’s discriminatory treatment, exacerbated her
disability. PFR File, Tab 1 at 12, 15. However , as noted above, the agency
granted the appellant’s request for telework, which was the only reasonable
accommodation she identified. In any event, because the appellant has not shown
that she is a qualified disabled individual, she has not established that she is
entitled to relief on her disability discrimination claim.
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.
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.
8
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
9
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.
10
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.
11
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. | Monnig_Allanda_F_DC-0752-21-0433-I-1__Final_Order.pdf | 2024-04-08 | ALLANDA F. MONNIG v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-21-0433-I-1, April 8, 2024 | DC-0752-21-0433-I-1 | NP |
1,844 | https://www.mspb.gov/decisions/nonprecedential/Loverme_JoelSF-0752-18-0770-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOEL LOVERME,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-18-0770-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel Loverme , Cheney, Washington, pro se.
Sally R. Bacon , Esquire, Fort Belvoir, Virginia, for the agency.
Nicole Rapone , Esquire, Fort Gregg-Adams, 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
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
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 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 submits for the first time a copy of an
April 19, 2018 medical report as well as a February 12, 2018 letter from his union
president in reference to the appellant’s medical condition. Petition for Review
(PFR) File, Tab 1 at 7-22. According to the appellant, he was unable to locate the
medical report, which he contends should help “in the area of [d]iscrimination.”
Id. at 5. However, we decline to consider such evidence for the first time on
review because, even if the appellant was unable to locate these documents, the
information contained in them is not new to the extent the documents are dated
before the close of the record below. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980) (stating that the Board will not consider evidence or
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); 5 C.F.R. § 1201.115(d) (stating that to constitute new and material
evidence the information contained in the documents, not just the documents
themselves, must have been unavailable despite the appellant’s due diligence
when the record closed).
The appellant also submits for the first time on review a document relating
to commissary pricing policies. PFR File, Tab 1 at 23. This appears to relate to2
his affirmative defense of whistleblower reprisal; however, he has not explained
why he could not have submitted such information below. Accordingly, we
decline to consider it for the first time on review.
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 | Loverme_JoelSF-0752-18-0770-I-1__Final_Order.pdf | 2024-04-08 | JOEL LOVERME v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-18-0770-I-1, April 8, 2024 | SF-0752-18-0770-I-1 | NP |
1,845 | https://www.mspb.gov/decisions/nonprecedential/Grina_RonnyDE-0752-21-0174-I-1_DE-0752-20-0417-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONNY GRINA,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBERS
DE-0752-21-0174-I-1
DE-0752-20-0417-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
cRae Cleaveland , Esquire, and Ryan P. Aubrey , Esquire, and
R. Bobby Devadoss , Esquire, Dallas, Texas, for the appellant.
Beverly G. Schneider , Esquire, and Michael P. Talia , Fort Harrison,
Montana, 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 in Grina v.
Department of the Army , MSPB Docket No. DE-0752-20-0417-I-1 (0417 Appeal),
which reversed the appellant’s removal on constitutional due process grounds,
and the appellant has filed a petition for review of the initial decision in Grina v.
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).
Department of the Army , MSPB Docket No. DE-0752-21-0174-I-1 (0174 Appeal),
which sustained a second removal action based on the same charge. We JOIN
these appeals. 5 C.F.R. § 1201.36(a)(2). For the reasons discussed below, we
DENY the appellant’s petition for review in the 0174 Appeal. We further
GRANT the agency’s petition for review in the 0417 Appeal, REVERSE the
initial decision, which reversed the first agency removal action, and instead
AFFIRM the appellant’s removal based on the first removal action. In light of
our findings here, we DISMISS the appellant’s second removal appeal as moot.
BACKGROUND
The appellant was a GS-12 Safety and Occupational Health Manager for
the Department of the Air Force. 0417 Appeal, Initial Appeal File (0417 IAF),
Tab 13 at 19. Although this is not a dual status position, the appellant also served
as a Chief Master Sergeant in the Montana Air National Guard. 0417 IAF,
Tab 20 at 26. On March 8, 2020, she submitted to a routine drug test in
connection with her military service. 0417 IAF, Tab 13 at 187. The appellant’s
sample was processed on March 24, 2020, and it tested positive for amphetamine.
Id. at 187-88. On March 25, 2020, the Air Force interviewed the appellant about
the matter, and she stated that she was “unaware of ingesting any medication that
would knowingly cause [her] to test positive on a urinalysis screening.” Id.
at 183-84. On May 18, 2020, the appellant submitted a second statement,
explaining that, on the mornings of March 7 and 8, 2020, she had taken
Adderall XR that had been prescribed to a family member. Id. at 185-86. She
explained the circumstances surrounding her ingestion of a non-prescribed
controlled substance and stated that she had not recalled doing so at the time she
made her March 25 statement. Id.
The appellant’s commander recommended that she be discharged from
military service, 0417 IAF, Tab 20 at 15, and on July 28, 2020, the Department of
the Air Force proposed to remove her from her civil service position as well,2
based on a charge of using a controlled substance while off-duty without a
prescription, 0417 IAF, Tab 13 at 175-82. The appellant responded to the
proposal in writing, and on September 9, 2020, the deciding official issued a
decision removing her effective September 26, 2020. Id. at 19-52.
The appellant filed a Board appeal, contesting her removal chiefly on the
basis of the penalty. 0417 IAF, Tab 1 at 4, Tab 19 at 4, Tab 21 at 1. She did not
raise any affirmative defenses. After a hearing, the administrative judge issued
an initial decision reversing the removal on due process grounds. 0417 IAF,
Tab 29, Initial Decision (0417 ID). He found that the deciding official violated
the appellant’s due process rights by considering an aggravating penalty factor
without prior notice or an opportunity to respond. 0417 ID at 8-12. Specifically,
the deciding official disbelieved the appellant’s initial response to the positive
drug test result test, i.e., that she did not recall taking any medication that would
result in a positive test, and he considered this alleged untruthfulness as an
aggravating factor in his decision. 0417 IAF, Hearing Recording (HR), Track 1
at 50:00 (testimony of the deciding official). Having reversed the removal on due
process grounds, the administrative judge did not reach the merits of the appeal.
0417 ID at 2, 12. The administrative judge ordered the agency to provide interim
relief. 0417 ID at 13-14.
On February 19, 2021, the agency filed a petition for review, disputing the
administrative judge’s due process analysis. 0417 Petition for Review (0417
PFR) File, Tab 1. The appellant has responded to the petition for review. 0417
PFR File, Tab 5. The agency reinstated the appellant to her position and certified
its compliance with the interim relief order. Id. at 17.
On February 20, 2021, the agency proposed the appellant’s removal for a
second time based on the same underlying charge of off-duty use of a controlled
substance without a prescription. 0174 Appeal, Initial Appeal File (0174 IAF),
Tab 12 at 79-86. The appellant provided a written response to the proposal on
March 4, 2021, and on April 9, 2021, the deciding official issued a decision3
removing her effective April 11, 2021. Id. at 21-50. The appellant filed a Board
appeal challenging the second removal action. 0174 IAF, Tab 1 at 1-6. She did
not raise any affirmative defenses. 0174 IAF, Tab 11 at 4.
After the appellant withdrew her hearing request, 0174 IAF, Tab 21 at 1,
and the parties submitted their closing briefs, 0174 IAF, Tabs 22-25, the
administrative judge issued an initial decision sustaining the removal, 0174 IAF,
Tab 27, Initial Decision (0174 ID) at 2, 10. The administrative judge sustained
the charge based on the appellant’s admission that she used Adderall XR without
a prescription while off duty. 0174 ID at 4. He further found that the agency
established a nexus between the appellant’s misconduct and the efficiency of the
service, and that the removal penalty was reasonable. 0174 ID at 4-10.
The appellant has filed a petition for review of that decision. 0174 Appeal,
Petition for Review (0174 PFR) File, Tab 3. The agency has responded to the
petition for review, and the appellant has filed a reply to the agency’s response.
0174 PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
We join these two appeals.
Joinder of two or more appeals filed by the same appellant may be
appropriate when joinder would expedite processing of the appeals and not
adversely affect the interests of the parties. Boechler v. Department of the
Interior, 109 M.S.P.R. 542, ¶ 14 (2008), aff’d per curiam , 328 F. App’x 660 (Fed.
Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). We join these appeals on review
because the facts are interrelated and joinder will expedite processing without
adversely affecting the interests of the parties. See Seth-Morris v. Office of
Personnel Management , 94 M.S.P.R. 166, 166 n.1 (2003).4
First Removal Appeal, Appeal 0417.
The agency did not violate the appellant’s right to due process.
On petition for review in the first Board appeal, the agency argues that the
administrative judge should not have found a due process violation under Stone v.
Federal Deposit Insurance Corporation , 179 F.3d 1368, 1376 (Fed. Cir. 1999),
because the deciding official did not consider any penalty factors of which the
appellant was not specifically notified. 0417 PFR File, Tab 1 at 8-11. For the
reasons that follow, we agree.
The essential requirements of due process are notice and an opportunity to
respond. Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985).
In the context of an adverse action under 5 U.S.C. chapter 75, this entails advance
notice of the reasons for the proposed adverse action, an explanation of the
agency’s evidence, and a meaningful opportunity to present reasons why the
agency should not take the action. Massey v. Department of the Army ,
120 M.S.P.R. 226, ¶ 4 (2013). These requirements of notice and an opportunity
to respond apply equally to the charges against the employee and to the level of
penalty being imposed. Ward v. U.S. Postal Service , 634 F.3d 1274, 1279-80
(Fed. Cir. 2011). When an agency intends to rely on aggravating factors as the
basis for the imposition of a penalty, such factors should be included in the
advance notice of adverse action so that the employee will have a fair opportunity
to respond to those factors before the agency’s deciding official. Lopes v.
Department of the Navy , 116 M.S.P.R. 470, ¶ 5 (2011). In this case, the
administrative judge found no indication that the proposing official intended for
allegations of untruthfulness to factor into the removal action. 0417 ID at 8.
The administrative judge further found that there was no indication that the
appellant understood the proposal to be making any such allegation. Id. Thus, he
determined that the deciding official “privately concluded” that the appellant’s
statement was untruthful and factored this conclusion against her in his removal
decision without any prior notice to the appellant that this would be an issue.5
0417 ID at 9-10. Applying the factors set forth in Stone, 179 F.3d at 1377, the
administrative judge concluded that the deciding official’s consideration of this
matter was so substantial and so likely to cause prejudice that no employee could
fairly be required to be subjected to a deprivation of property under such
circumstances. 0417 ID at 11-12.
However, we disagree that the agency failed to inform the appellant that the
facial inconsistency between her March 25 and May 18, 2020 statements could be
an issue in its decision. 0174 ID at 8. The first page of the proposal notice states
four sets of facts, labeled “a” through “d” in support of the agency’s charge of
off-duty nonprescription use of a controlled substance. 0417 IAF, Tab 13 at 75.
Under “c,” the proposing official stated:
On or about 25 March 2020, you provided a sworn statement that you
were unaware of ingesting anything that would cause a positive
urinalysis test. On or about 18 May 2020, you provided a sworn
statement that you admitted to using Adderall XR on 7 and 8 March
2020; you admitted you did not have a prescription for Adderall XR.
Id.
Mention of the May 18 statement certainly goes to support the charge, but
that is not all. The agency also noted the March 25 statement in which the
appellant pled ignorance of the reason for the positive test results. It is difficult
to imagine any reason that the agency would have mentioned the March 25
statement in its proposal notice except to point out that it was inconsistent with
the appellant’s later admission of misconduct. The only alternative would be to
interpret the agency’s mention of the March 25 statement as entirely superfluous,
but such an interpretation would be both against the rules of construction and
common sense, especially considering its prominent placement in the notice of
proposed removal. See Gill v. Department of Defense , 92 M.S.P.R. 23, ¶ 19
(2002) (determining that when an agency stated, following its narrative of the
factual basis for the charge, that the appellant violated the Privacy Act and a
regulation, those alleged violations were part of the charge). We therefore find6
that the appellant was on notice that her inconsistent statements might be a factor
in the agency’s decision.
Although the appellant’s response to the notice of proposed removal does
not address the matter, her response to the parallel military discharge proceedings
does. 0417 IAF, Tab 20 at 15-18. During those proceedings, the appellant
explained the discrepancy between her two statements, indicating that she was
caught off-guard by the positive test results and did not recall until after she made
her initial statement that she had taken two nonprescription doses of Adderall XR
around the time in question. Id. at 15. We acknowledge that these parallel
proceedings were distinct from one another. However, the appellant’s May 22,
2020 response to the notice of proposed discharge shows that she must have been
aware of the significance of the apparently contradictory statements as they
appeared in the July 28, 2020 notice of proposed removal.
For the foregoing reasons, we conclude that the deciding official neither
considered information that was not included in the proposal notice nor drew any
conclusions that might represent a departure from the reasons stated in the
proposal itself, and so the agency did not commit a violation of due process. For
the same reason, we also find that the agency committed no procedural error. See
Ward, 634 F.3d at 1281-82.
Because the administrative judge reversed the removal on due process
grounds without reaching the merits of the appeal, a remand for further
adjudication would ordinarily be required. Stone, 179 F.3d at 1377-78; Ward,
634 F.3d at 1279-80. However, for the reasons discussed below, we find that the
principles of adjudicatory efficiency provide sufficient basis for the Board to
decide the merits of this appeal on petition for review.
Second Removal Action, Appeal 0174.
As previously noted, after the administrative judge reversed the first
removal action on constitutional due process grounds, the agency proposed the
appellant’s removal a second time. 0174 IAF, Tab 12 at 79-86. The second7
removal action contained the same single charge of off-duty use of a controlled
substance without a prescription, with the same single specification. Id. at 79;
see 0417 IAF, Tab 13 at 175. Additionally, the proposing and deciding officials
in the second removal action were the same as in the first removal. 0174 IAF,
Tab 12 at 25, 86; 0417 IAF, Tab 13 at 24, 181. Although the appellant initially
indicated that she would once again raise a due process affirmative defense in the
second appeal, she ultimately declined to do so and did not raise any other
affirmative defenses. 0174 IAF, Tab 11 at 4. Finally, a full hearing on the merits
was held in the first appeal with testimony from all of the relevant witnesses, and
because the second appeal was based on the written record pursuant to the
appellant’s request, there was no additional testimony in the second appeal.
0417 IAF, Tab 26; 0174 IAF, Tab 21 at 1.
Thus, the only substantive difference between the first and second removal
actions was that the second proposal notice was more explicit about the inference
that the proposing official drew from the inconsistent statements. 0174 IAF,
Tab 12 at 29-30, 33, 79-82, 95, 97-98; 0417 IAF, Tab 13 at 175, HR, Track 1
at 50:30 (testimony of the deciding official) (acknowledging that he believed the
appellant’s statement denying awareness of why she tested positive for
amphetamines was false); HR Track 3 at 29:30 (testimony of the proposing
official) (same).
As set forth in Ward and Stone, when an adverse action is reversed on due
process grounds, an agency may take a second adverse action based on the same
misconduct if it provides the appellant a new and “constitutionally correct
removal procedure.” Ward, 634 F.3d at 1280; Stone, 179 F.3d at 1377; see Litton
v. Department of Justice , 118 M.S.P.R. 626, ¶ 12 (2012) (noting that it is not
unusual or wrongful for an agency to begin anew an adverse action based on
charges that were previously brought when the initial action was invalidated on
procedural grounds) (citing Steele v. General Services Administration , 6 M.S.P.R.
368, 372 (1981)); Shamblen v. U.S. Postal Service , 45 M.S.P.R. 620, 624 (1990)8
(noting that when the adverse action in the earlier proceeding was invalidated on
procedural grounds and the administrative judge did not reach the merits of the
charge, the agency is not precluded from renewing the adverse action based on
the charges brought in the earlier proceeding).
Additionally, in Lopes v Department of the Navy , 119 M.S.P.R. 106, ¶¶ 2,
4-5, 8-111 (2012), the Board concluded that an administrative judge who held a
hearing on a prior removal based on the same charges may exercise his discretion
to incorporate any evidence from the record in the first appeal that he deems
appropriate into the record in the second appeal, while affording the parties with
the opportunity to further develop the record with relevant and nonduplicative
evidence. We find that situation analogous to the one here, in which we are
presented with virtually identical removal actions and must determine whether to
sustain them. Adjudicatory efficiency dictates that we determine whether we can
sustain the first removal before proceeding to consider the second. See Bean v.
U.S. Postal Service , 120 M.S.P.R. 447, ¶ 5 (2013) (finding that when an appellant
files an appeal that raises claims raised in an earlier appeal after the initial
decision in the earlier appeal has been issued, but before the full Board has acted
on the appellant’s petition for review, it is appropriate to dismiss the subsequent
appeal on the grounds of adjudicatory efficiency). Based on the specific
circumstances present in this case, including that the same administrative judge
considered both appeals, all of the relevant evidence and argument is
substantively identical, the record was fully developed in the first Board appeal,
the appellant did not request a hearing in the second appeal, and there is no
dispute of material fact implicating witness credibility, we find it appropriate to
decide the merits of the 0417 appeal based on the record in the 0174 appeal.9
We affirm the first removal action for the reasons discussed in the
0174 initial decision.
In the 0174 appeal, the administrative judge found that the agency proved
its charge and established nexus. 0174 ID at 4. The appellant does not contest
these findings, and for the reasons explained in the initial decision, we agree.
The administrative judge also found that the deciding official considered
the relevant penalty factors and that the removal penalty was within the tolerable
limits of reasonableness. 0174 ID at 4-10. On review, the appellant argues that
the administrative judge failed to address the cases that she cited in her initial and
closing briefs. 0174 PFR File, Tab 3 at 7-18. She also contests the deciding
official’s application of the agency’s table of penalties. Id. at 7-11.
When, as here, 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 management discretion within tolerable limits of
reasonableness. Adam v. U.S. Postal Service , 96 M.S.P.R. 492, ¶ 5 (2004), aff’d
per curiam, 137 F. App’x 352 (Fed. Cir. 2005). In making that 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 management judgment
has been properly exercised. See, e.g., Brown v. Department of the Treasury ,
91 M.S.P.R. 60, ¶ 7 (2002); Douglas v. Veterans Administration , 5 M.S.P.R. 280,
302 (1981). Thus, the Board will disturb the agency’s chosen penalty only if it
finds that the agency failed to weigh relevant factors or that the agency’s
judgment clearly exceeded the limits of reasonableness. Toth v. U.S. Postal
Service, 76 M.S.P.R. 36, 39 (1997).
In arriving at the removal penalty, the deciding official highlighted the
nature and seriousness of the appellant’s misconduct of using Adderall XR
without a prescription. He observed that, as a Safety and Occupational Health
Manager, the appellant’s drug use could have jeopardized the safety of the10
120 personnel in her work unit and damaged military equipment. 0417 IAF,
Tab 13 at 26. He also considered other factors, such as the impact that the
appellant’s misconduct had on her job duties, the consistency of the removal
penalty with the closest analogous offense on the agency’s table of penalties, the
fact that she was on clear notice that use of illicit drugs was prohibited by
Government and agency policy, her limited potential for rehabilitation, and the
agency’s loss of trust in her judgment. 0417 IAF, Tab 13 at 26-31.
The deciding official also considered mitigating factors, such as the
appellant’s lack of a disciplinary record, her lengthy service, her positive job
performance, and mitigating conditions related to recent illness and personal
stress, but he found that those factors did not overcome the severity of the
appellant’s offense.2 0417 IAF, Tab 13 at 30. After reviewing the deciding
official’s assessment of each Douglas factor, the administrative judge found that
the deciding official considered and properly weighed the Douglas factors and
2 In the 0174 appeal, the administrative judge stated that the deciding official
considered Douglas factor 11 as “aggravating,” and that the appellant agreed with the
deciding official’s assessment. 0174 ID at 9. However, the Douglas factor worksheet
identifies this factor as “mitigating,” and the appellant argued in her response to the
proposal that this factor was mitigating, so this appears to be a misstatement.
0174 IAF, Tab 12 at 33, 70-71.
Further, although the proposing and deciding officials considered this factor mitigating
in the second removal action, they considered it aggravating in the first removal action,
with the difference being that the appellant was not apologetic in her response.
Compare 0174 IAF, Tab 12 at 33, 98, with 0417 IAF, Tab 13 at 30, 193. Nevertheless,
even assessing the reasonableness of the removal penalty based on the deciding
official’s analysis of Douglas factor 11 in the first removal action, the result is the
same. It is apparent that the agency would have removed the appellant regardless of
whether this factor was viewed as mitigating or aggravating, and we agree that the
removal is justified based on the severity of the appellant’s misconduct. See Batara v.
Department of the Navy , 123 M.S.P.R. 278, ¶¶ 2, 8 (2016) (finding removal was the
appropriate penalty for a shipyard employee charged with admitted frequent marijuana
use); Cole v. Department of the Air Force , 120 M.S.P.R. 640, ¶ 15 (2014) (holding that
removal is a reasonable penalty for drug use when the employee performs work that, if
the employee were impaired, could result in substantial danger to life and property,
notwithstanding other mitigating factors).11
exercised his discretion within the tolerable limits of reasonableness. 0174 ID
at 6-9.
The appellant argues on review that the penalty of removal is unreasonable
because she engaged in her misconduct while off duty. 0174 PFR File, Tab 3
at 8-11; 0174 IAF, Tab 12 at 31. In support of her argument, the appellant cites
Culley v. Defense Logistics Agency , 60 M.S.P.R. 204 (1993). 0174 PFR File,
Tab 1 at 8-11. We have considered the appellant’s arguments, but we do not
agree.
In Culley, 60 M.S.P.R. at 214-15, the deciding official erred by basing her
penalty decision on the charge of theft, when the appellant was actually charged
with unauthorized possession of Government property. No such error occurred
here. Rather, the deciding official listed the charge of being under the influence
on-duty as the “most closely related charge [to the appellant’s charged
misconduct] in the table of penalties.” 0174 IAF, Tab 12 at 31. However, in
doing so, he explicitly recognized that appellant was charged with “off-duty
misconduct” and acknowledged that she had not reported to her civilian position
while under the influence.3 0174 IAF, Tab 12 at 31. The deciding official
ultimately concluded that the table of penalties was a “neutral” penalty factor, a
conclusion with which the administrative judge agreed. Id.; 0174 ID at 8.
The appellant also disputes the deciding official’s assessment of Douglas
factor 5, which concerns the effect of the offense upon her supervisors’
confidence in her ability to perform her assigned duties. 0174 PFR File, Tab 3
at 12-16. According to the appellant, the proposing official had not lost trust and
3 An agency may violate an employee’s right to due process if she is not provided with
the opportunity to respond to the agency’s consideration of the recommended penalty
for a charge other than the one set forth in the notice itself. Jenkins v. Environmental
Protection Agency , 118 M.S.P.R. 161, ¶ 12 (2012). However, as noted above, the
appellant elected not to pursue a due process claim. In any event, the agency notified
the appellant of how it viewed her offense under its table of penalties in both of its
proposed removals, and she specifically responded to this issue in the second removal
action. 0417 IAF, Tab 13 at 177, 192; 0174 IAF, Tab 12 at 31, 64, 68, 81. Therefore,
she had notice of, and an opportunity to respond to, this information.12
confidence in her ability to perform her job, and the deciding official’s loss of
confidence was based on her alleged lack of candor rather than on the underlying
offense. Therefore, she argues, these factors should not have weighed against
her. Id. at 13-16.
An agency’s claim that supervisors have lost trust and confidence in an
appellant must be supported by evidence and cannot be based solely on a mere
conclusory statement. Jefferson v. U.S. Postal Service , 73 M.S.P.R. 376, 384
(1997). In this case, the deciding official specifically explained that he lost
confidence in the appellant because the agency relies on the Safety and
Occupational Health Manager to use good judgment and decision-making ability
to ensure that safety standards are met, but the appellant demonstrated poor
judgment by using a controlled substance without a prescription. 0417 IAF,
Tab 13 at 28. We agree with the administrative judge that the record supports the
agency’s claim of lost trust and confidence, 0174 ID at 7.
Finally, the appellant argues that the Board’s decision in Kruger v.
Department of Justice, 32 M.S.P.R. 71 (1987), requires mitigation of the removal
penalty. 0174 PFR, Tab 3 at 16-18. The three appellants in Kruger each
immediately admitted to smoking marijuana while off duty when interviewed by
agency investigators. Kruger, 32 M.S.P.R. at 73. Based on this and other factors,
the Board mitigated their removals to 60-day suspensions. Id. at 76-77. In
contrast, the appellant here initially denied any knowledge concerning why she
tested positive for amphetamine, and only later made a second statement
acknowledging that the positive screen was due to her use of medication
prescribed to a family member for attention deficit hyperactivity disorder.
0417 IAF, Tab 13 at 183-88. Accordingly, she did not demonstrate the same
potential for rehabilitation as the appellants in Kruger.
Because we find that the agency afforded the appellant due process in
connection with the 0417 removal, we grant the agency’s petition for review and
reverse the 0417 initial decision. Because a hearing was held in that appeal and13
the record is complete, we sustain the appellant’s first removal, effective
September 26, 2020, on the merits without remanding to the administrative judge.
0417 IAF, Tab 13 at 19.
Because we affirm the appellant’s first removal, there is no effective relief
we can grant the parties regarding the appellant’s second removal, and it is now
moot. See Milner v. U.S. Postal Service , 118 M.S.P.R. 600, ¶ 4 (2012)
(explaining that an issue is moot when there is no effective relief that the Board
can provide); Najjum v. General Services Administration , 27 M.S.P.R. 87, 88-89
(1985) (determining that an appellant’s retirement retroactive to a date prior to
his removal rendered his removal appeal moot). Therefore, we dismiss the
0174 Appeal as moot.
NOTICE OF APPEAL RIGHTS4
The initial decisions, as supplemented by this Final Order, constitute the
Board’s final decisions on these matters. 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.
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.14
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 you15
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. 16
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
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.18 | Grina_RonnyDE-0752-21-0174-I-1_DE-0752-20-0417-I-1_Final_Order.pdf | 2024-04-08 | RONNY GRINA v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-20-0417-I-1, April 8, 2024 | DE-0752-20-0417-I-1 | NP |
1,846 | https://www.mspb.gov/decisions/nonprecedential/Finch_Gregory_L_SF-3443-23-0013-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY L. FINCH,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-3443-23-0013-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gregory L. Finch , Fort Walton Beach, Florida, pro se.
Charles Eiser , Esquire, Fort Wainwright, Alaska, 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. On petition for review, the appellant
questions the administrative judge’s conclusion regarding jurisdiction and
identifies several purported bases of Board jurisdiction over his appeal.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 provides additional documents with his petition for review, i.e., material
from the Equal Employment Opportunity Commission regarding workplace
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
discrimination. Petition for Review File, Tab 1 at 4-5. 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 jurisdictional
issue. 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).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Finch_Gregory_L_SF-3443-23-0013-I-1__Final_Order.pdf | 2024-04-08 | GREGORY L. FINCH v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-3443-23-0013-I-1, April 8, 2024 | SF-3443-23-0013-I-1 | NP |
1,847 | https://www.mspb.gov/decisions/nonprecedential/Rodriguez_Gilbert_R_AT-0714-18-0678-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GILBERT R. RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-18-0678-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gilbert R. Rodriguez , Pembroke Pines, Florida, pro se.
Karen L. Mulcahy , Esquire, Bay Pines, 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
dismissed his appeal of the agency’s removal action as barred by the doctrine of
res judicata. On petition for review, the appellant reargues the merits of his
removal for a medical inability to perform the essential functions of his position
and reasserts his claim that the agency failed to reasonably accommodate him.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS1
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
1 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. 2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Rodriguez_Gilbert_R_AT-0714-18-0678-I-1__Final_Order.pdf | 2024-04-08 | GILBERT R. RODRIGUEZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-18-0678-I-1, April 8, 2024 | AT-0714-18-0678-I-1 | NP |
1,848 | https://www.mspb.gov/decisions/nonprecedential/Le_Duc_V_CH-3443-19-0061-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DUC V. LE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-3443-19-0061-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lori Liddell , Tomah, Wisconsin, for the appellant.
Jack R. Jakubiak , 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 appeal for lack of jurisdiction. On petition for review, the appellant
argues that the agency improperly denied his reasonable accommodation requests
and violated its procedures in processing these requests.2 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 RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 For the first time on review, the appellant submits an agency Office of Inspector
General report dated April 14, 2014, and a 2013 agency handbook on procedures for
providing reasonable accommodations. Petition for Review File, Tab 1 at 8-72.
Because these documents are neither new nor material, we need not consider them. See
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980 ) (stating that the Board will
not consider evidence submitted for the first time with the petition for review absent a
showing that it was unavailable before the record was closed despite the party’s due
diligence); see also Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980 )
(finding 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 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Le_Duc_V_CH-3443-19-0061-I-1_Final_Order.pdf | 2024-04-08 | DUC V. LE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-3443-19-0061-I-1, April 8, 2024 | CH-3443-19-0061-I-1 | NP |
1,849 | https://www.mspb.gov/decisions/nonprecedential/James_MarcusAT-3443-21-0251-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARCUS AURELIUS JAMES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3443-21-0251-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
arcus Aurelius James , Miramar, Florida, pro se.
Caroline E. Johnson , Esquire, St. Petersburg, Florida, for the agency.
Kristin Ann Langwell , Hines, 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 for lack of jurisdiction his appeal alleging prohibited personnel
practices surrounding an alleged hostile work environment, a higher-level detail
assignment, and a non-selection for a permanent appointment. Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to address potential additional bases of jurisdiction raised
by the appellant’s pleadings below and on review, we AFFIRM the initial
decision.
BACKGROUND
The appellant is a veteran with a service-connected disability. Initial
Appeal File (IAF), Tab 7 at 81, 86. At the time he filed the instant appeal, he was
employed by the agency as an Assistant Human Resources Officer, GS -13, in the
Miami Veterans Affairs (VA) Healthcare System. IAF, Tab 1 at 1, 5, Tab 6 at 51,
Tab 7 at 73. From approximately October 2019 until February 2021, he was
detailed to a GS-14 Human Resources Officer (HRO) position at the same
location. IAF, Tab 1 at 5, Tab 7 at 73; Petition for Review (PFR) File, Tab 1 at 4.
According to the appellant, he was entitled to, but did not receive, higher -level
compensation during his detail. IAF, Tab 6 at 7-8.
While he was detailed to the HRO position, in November 2019, the agency
posted a vacancy announcement for the permanent GS-14 HRO position. IAF,
Tab 7 at 27. The appellant competed for the permanent position but was not2
selected. Id. at 27, 65-72, 90. The agency advised him of his non-selection on
February 20, 2020. Id. at 90. The appellant filed the instant appeal of the
agency’s decision not to promote him to the HRO position and alleged that the
agency engaged in several prohibited personnel practices while he performed the
detail. IAF, Tab 1 at 5.
The appellant argued below that the interview process for the HRO position
was not conducted fairly because one of three interviewers, specifically the
then-acting Associate Director (AAD) for the Miami VA Healthcare System, was
not qualified to sit on the interview panel. IAF, Tab 6 at 6-7, 46. He reasoned
that she was serving in an acting role, had been subjecting him to a hostile work
environment based on race and perhaps other unspecified factors, and improperly
scored him 9 out of 30 possible points, which deviated from the two other
interviewers, who scored him at 15 and 18 points, respectively. Id. at 4-7, 21-24.
He also suggested that the AAD’s treatment of him, and scoring of his
application, may have resulted from disclosures he made to her and others
regarding her behavior. Id. at 4-7. The appellant alleged that he did not receive
supplemental compensation for the period during which he was detailed to the
HRO position, even though he continued to perform his primary duties. IAF,
Tab 1 at 5, Tab 6 at 7.
The agency moved to dismiss the appeal for lack of jurisdiction. IAF,
Tab 7 at 10. Its motion explained that the Board generally lacks jurisdiction over
non-selection claims. Id. at 7. It identified exceptions for claims of
whistleblower reprisal, as well as those arising under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended
at 38 U.S.C. §§ 4301-4335) (USERRA) and the Veterans Employment
Opportunities Act of 1998 (VEOA). Id. at 7-8. It pointed to what the agency
viewed as deficiencies in the appellant’s allegations regarding these and other
potential claims. Id. at 8-9. The administrative judge then issued an Order to
Show Cause, which also explained to the appellant that the Board generally lacks3
jurisdiction over non -selection decisions and identified exceptions for claims of
whistleblower reprisal, as well as USERRA and VEOA claims. IAF, Tab 8
at 2-3. The administrative judge stated in her order that the Board lacks
jurisdiction over the appellant’s claim that he was entitled to higher-level pay
while detailed to the HRO position. Id. at 2. The appellant did not respond to
either the agency’s filing or the administrative judge’s order.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction without holding the appellant’s requested hearing. IAF,
Tab 1 at 2, Tab 9, Initial Decision (ID) at 1-3. She explained that, although the
Board has jurisdiction to review an “adverse action” under chapter 75, it
generally lacks jurisdiction to review a non-selection claim. ID at 3. She further
found that, because the appellant failed to nonfrivolously allege Board
jurisdiction over an otherwise appealable action, the Board did not have
jurisdiction to review any prohibited personnel practice claims or other
affirmative defenses raised by the appellant. Id.
The appellant has filed a petition for review, in which he reiterates his
hostile work environment claim and argues that his appeal did not concern his
non-selection, but rather what he asserts was the excessive length of his detail to
the HRO position and his hostile work environment claim. PFR File, Tab 1
at 4-5; IAF, Tab 1 at 5. He includes for the first time on appeal what appear to be4
his responses to an agency discovery request. PFR File, Tab 1 at 8-33.2 The
agency responded to the petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The Board generally lacks
jurisdiction over an employee’s non-selection for a position. Becker v.
Department of Veterans Affairs , 107 M.S.P.R. 327, ¶ 5 (2007). Similarly, a
reassignment or detail without a reduction in pay or grade is not an adverse action
appealable under chapter 75 . Dixon v. U.S. Postal Service , 64 M.S.P.R. 445,
450 n.3 (1994), aff’d sub nom. Scorcia v. U.S. Postal Service , 77 F.3d 503 (Fed.
Cir. 1996) (Table). Nor does the Board have independent jurisdiction over any
claim of discrimination or other prohibited personnel practice the appellant may
be attempting to raise in connection with his detail. Snow v. Department of the
Air Force, 39 M.S.P.R. 582, 584 (1989).
Despite the general lack of jurisdiction, however, an employee may be able
to appeal an alleged hostile work environment or a detail under VEOA or
USERRA, or through an individual right of action (IRA) appeal under
whistleblower protection statutes. See Becker, 107 M.S.P.R. 327, ¶ 5
(recognizing that, despite the general lack of Board jurisdiction over a
non-promotion, an appellant may appeal a non-promotion under VEOA or
2 Discovery requests and responses thereto generally are not to be filed in the first
instance with the Board unless, as relevant here, they are submitted as part of the
substantive evidence to be considered in the appeal. Boston v. Department of the Army ,
122 M.S.P.R. 577, ¶ 12 (2015); 5 C.F.R. § 1201.71. Therefore, we have reviewed the
appellant’s responses to the agency’s discovery requests to determine whether they
contain any information impacting the Board’s jurisdiction. See Pirkkala v. Department
of Justice, 123 M.S.P.R. 288, ¶ 5 (2016) (considering the new evidence submitted by
the appellant on review because it concerned the issue of Board jurisdiction, a matter
that may be raised at any time during the Board proceedings). The appellant also
includes numerous documents which are identical to those he filed below. PFR File,
Tab 1 at 36-65; IAF, Tab 6 at 26-55. We have cited to those documents, when
appropriate, at their location in the initial appeal file.5
USERRA or through an IRA appeal); see also, e.g., Skarada v. Department of
Veterans Affairs , 2022 MSPB 17, ¶¶ 13-16 (acknowledging that an alleged hostile
work environment might be actionable in an IRA appeal); Petersen v. Department
of the Interior, 71 M.S.P.R. 227, 235-39 (1996) (concluding that allegations of
harassment may be actionable under USERRA); White v. Department of the Air
Force, 63 M.S.P.R. 90, 94 (1994) (recognizing that a detail may be the subject of
an IRA appeal). Therefore, although not directly addressed in the initial decision,
we have considered the appellant’s claim, re-raised on review, that the AAD
subjected him to a hostile work environment and that the agency’s handling of his
detail was improper. See Ney v. Department of Commerce , 115 M.S.P.R. 204, ¶ 7
(2010) (explaining that the Board would resolve jurisdictional issues that the
administrative judge failed to address on petition for review because the issue of
the Board’s jurisdiction is always before the Board and can be raised by the
parties or sua sponte at any time).
We have also addressed the appellant’s non-selection claim. Normally, the
Board considers those issues raised by the parties on review. Special Counsel v.
Coffman, 124 M.S.P.R. 130, ¶ 18 n.6 (2017); 5 C.F.R. § 1201.115. However, the
Board reserves the authority to consider any issue in an appeal before it. 5 C.F.R.
§ 1201.115(e). Here, the appellant has asserted on review that he never intended
to raise his non-selection. PFR File, Tab 1 at 4-5. This statement is belied by his
submissions below. IAF, Tab 1 at 5, Tab 6 at 6, 19. In any event, we have
exercised our authority to consider this claim in order to supplement the
administrative judge’s reasoning as to why the Board lacks jurisdiction over this
claim, as discussed below.
We modify the initial decision to find that the appellant has failed to establish
jurisdiction over his claims as either an IRA or a VEOA appeal.
As indicated above, the appellant suggested during the proceedings before
the administrative judge that his non-selection was in reprisal for disclosures he
made to the AAD and others regarding her behavior. IAF, Tab 6 at 4-7. He also6
raised claims relating to his detail as HRO and an alleged hostile work
environment. IAF, Tab 1 at 5, Tab 6 at 4-7. He appears to re-raise these claims
on review. PFR File, Tab 1 at 5-6, 16-19, 24. The record contains evidence that
the appellant is preference eligible under 5 U.S.C. § 2108; therefore, we are also
considering any potential VEOA claim, though not addressed by the
administrative judge. IAF, Tab 7 at 86 -87.
To establish Board jurisdiction over a non-selection appeal brought under
the VEOA, an appellant must, in pertinent part, make nonfrivolous allegations
that in making its selection decision, the agency violated his rights under a statute
or regulation relating to veterans’ preference. Alegre v. Department of the Navy ,
118 M.S.P.R. 424, ¶¶ 12-13, 15 (2012). The Board has jurisdiction over an IRA
appeal if, as relevant here, the appellant exhausted his administrative remedies
before the Office of Special Counsel (OSC). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Although the administrative judge did
not provide notice of these jurisdictional requirements, the agency’s motion to
dismiss did so. IAF, Tab 7 at 8, Tab 8.3
The appellant did not allege below, and has not claimed on review, any
violations of veterans’ preference regulations or statutes in connection with his
non-selection. Indeed, the appellant did not even assert he was preference
eligible in his initial appeal. IAF, Tab 1 at 1. Further, as indicated above, he
avers on review that he is not contesting his non-selection. PFR File, Tab 1
at 4-5. Therefore, we find the Board lacks VEOA jurisdiction over the appeal.
3 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 ). However, an administrative judge’s failure to provide an
appellant with proper Burgess notice can be cured if the agency’s pleadings contain the
notice that was otherwise lacking. Harris v. U.S. Postal Service , 112 M.S.P.R. 186, ¶ 9
(2009). Here, the administrative judge’s Acknowledgment Order did not provide the
appellant with proper Burgess notice. However, the agency’s motion to dismiss the
appeal cured this error by identifying the possible claims related to a non-selection over
which the Board may have jurisdiction, as well as what the appellant needed to allege to
establish those claims. IAF, Tab 7 at 7-10.7
The appellant also failed to establish that he exhausted his OSC remedy as
to any potential IRA appeal. On his initial appeal form, he denied having filed a
whistleblowing complaint with OSC. IAF, Tab 1 at 4. The record briefly
indicates that the appellant spoke with OSC and that an OSC investigator was
apparently working on an initial determination of a complaint the appellant filed,
but there is no evidence or allegation identifying the substance of that complaint,
nor does the record show whether OSC terminated its investigation or that
120 calendar days passed since he first sought corrective action. IAF, Tab 7
at 16-17, PFR File, Tab 1 at 19. In fact, it appears the appellant likely based his
OSC complaint on claims of race and sex discrimination. IAF, Tab 7 at 16-18.
Thus, there is no evidence that the appellant exhausted his administrative
remedies as to claims of whistleblower reprisal. Because the appellant failed to
meet at least one of the jurisdictional prerequisites for an IRA or a VEOA appeal,
we find it unnecessary to determine if he met the other jurisdictional requirements
for these types of appeals.
The appellant has not alleged that the agency discriminated against him based on
uniformed service in violation of USERRA.
We have considered whether the appellant is raising a discrimination claim
under USERRA because he is a veteran and has alleged he was detailed for too
long, subjected to a hostile work environment, and not selected for a position.
IAF, Tab 1 at 5, 7; PFR File, Tab 1 at 4-5; see Yates v. Merit Systems Protection
Board, 145 F.3d 1480, 1485 (Fed. Cir. 1998) (finding that an appellant need not
specifically mention USERRA to meet the Board’s USERRA jurisdictional
requirements; it is sufficient to allege facts that invoke jurisdiction).
To establish jurisdiction over a USERRA discrimination claim under
38 U.S.C. § 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 performance of8
duty or obligation to perform duty in the uniformed service was a substantial or
motivating factor in the denial. Hau v. Department of Homeland Security ,
123 M.S.P.R. 620, ¶ 11 (2016), aff’d sub nom. Bryant v. Merit Systems Protection
Board, 878 F.3d 1320, 1325-26 (Fed. Cir. 2017) . The agency noted in its motion
to dismiss that the appellant had not alleged his non-selection was motivated by
his uniformed service. IAF, Tab 7 at 7-8.
Because the administrative judge did not make findings as to whether the
appellant met his burden to raise nonfrivolous allegations of jurisdiction under
USERRA, we modify the initial decision to do so here. We find the appellant’s
allegations lacking. Although the appellant states on review that his uniformed
service is “well documented,” he has not claimed that the AAD, or any other
agency employee, expressed hostility toward his military service or treated him
differently compared to other employees based on that service. PFR File, Tab 1
at 5. Under these circumstances, the appellant has failed to nonfrivolously allege
discrimination based on uniformed service. We therefore find that there is no
basis for Board jurisdiction under USERRA.
The appellant has failed to nonfrivolously allege that the agency violated the
basic requirements for employment practices.
The Board has jurisdiction over an employment practices appeal under
5 C.F.R. § 300.104(a) when the following conditions are met: (1) the appeal
concerns an employment practice that the Office of Personnel Management
(OPM) is involved in administering; and (2) the appellant makes 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). Employment practices can
include practices affecting ranking and selection of applicants for promotion in
the competitive service. Meeker v. Merit Systems Protection Board , 319 F.3d
1368, 1372 (Fed. Cir. 2003) (citing 5 C.F.R. § 301.101). An agency’s
misapplication of a valid OPM requirement may constitute an employment9
practice, but an individual agency action or decision does not. Sauser,
113 M.S.P.R. 403, ¶ 7 (citing, inter alia, Prewitt v. Merit Systems Protection
Board, 133 F.3d 885, 887 (Fed. Cir. 1998) (affirming the Board’s dismissal of a
non-selection appeal for lack of Board jurisdiction because, as relevant here, the
petitioner failed to identify any OPM regulation the agency implemented that
resulted in the agency misidentifying the races of the applicants, as alleged).
In its vacancy announcement, the agency identified the HRO position as
being in the competitive service. IAF, Tab 7 at 27. Further, the appellant alleged
below that the AAD improperly scored his application. IAF, Tab 6 at 6-7. He
pointed to scoring charts completed by the three interviewers for the vacancy,
asserting that the scores from the AAD were inconsistent with those from the
other interviewers and that she improperly rated him as “0” on an element
although the score range was identified on the chart as “1-5.” Id. at 6-7, 21-24.
The administrative judge did not address any potential employment
practices claim below. ID. The appellant does not re-raise his non-selection on
review, although he does reference it in the discovery responses attached to the
petition for review. PFR File, Tab 1 at 22-23. In any event, to ensure the initial
decision is complete, we find the appellant failed to establish jurisdiction over an
employment practice because his allegations relate solely to an individual agency
action. He does not identify any OPM requirement or practice that concerned the
score of his application. Id. Further, nothing in the record indicates that OPM
was at all involved in administering or reviewing the qualification requirements
that the agency considered in evaluating applicants for the HRO position.4 In the
absence of an otherwise appealable action, the Board lacks jurisdiction over the
appellant’s prohibited personnel practice claims, such as his race and sex
4 As previously discussed, an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue. Burgess, 758 F.2d at 643-44;
Harris, 112 M.S.P.R. 186, ¶ 9. The administrative judge failed to provide proper
jurisdictional notice concerning the appellant’s employment practices claim, but the
agency’s motion to dismiss cured this error by identifying what he must allege. IAF,
Tab 7 at 8-9. 10
discrimination claims. IAF, Tab 7 at 16-18; see Wren v. Department of the Army ,
2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
Accordingly, we affirm the administrative judge’s initial decision 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
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
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
within 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 file12
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 13
(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. 14
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | James_MarcusAT-3443-21-0251-I-1_Final_Order.pdf | 2024-04-08 | MARCUS AURELIUS JAMES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-21-0251-I-1, April 8, 2024 | AT-3443-21-0251-I-1 | NP |
1,850 | https://www.mspb.gov/decisions/nonprecedential/Gibson_Tenita_T_AT-1221-20-0815-W-2_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TENITA T. GIBSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-20-0815-W-2
DATE: April 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
T
enita T. Gibson , Stone Mountain, Georgia, pro se.
Kimberly K. Ward , Esquire, Decatur, 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 in this
individual right of action (IRA) appeal, which denied her request for corrective
action under the Whistleblower Protection Act (WPA). For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision, and REMAND the case to the regional office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The appellant was a GS-11 Environmental Care Specialist for the agency’s
Atlanta Veterans Administration Medical Center. Gibson v. Department of
Veterans Affairs , MSPB Docket No. AT-1221-20-0815-W-1 Appeal File (W-1
AF), Tab 10 at 4. According to the appellant, in the summer and fall of 2014, she
learned that coworkers were engaging in overtime fraud and abuse, and she
reported the matter to the Environmental Management Services (EMS) Chief and
Assistant Chief. Id. at 32. Around the same time, she began questioning the
EMS Chief for allegedly improperly promoting the same two coworkers. Id. at 6,
32-33.
In late 2016 or early 2017, the agency announced a vacancy for the position
of GS-12 Assistant Chief of EMS. Id. at 4, 14. The appellant applied for the
vacancy, but on March 20, 2017, the agency notified her that it had selected
another individual instead. Id. at 14. The EMS Chief was the selecting official
for this vacancy. Gibson v. Department of Veterans Affairs , MSPB Docket
No. AT-1221-20-0815-W-2 Appeal File (W-2 AF), Tab 9, Hearing Recording
(HR) (testimony of the EMS Chief). According to the appellant, after the
vacancy was filled, she disclosed to the EMS Chief that she believed he
inappropriately manipulated the selection process and preselected the selectee.
HR (testimony of the appellant).
Shortly after the appellant’s nonselection, on April 4, 2017, she filed an
equal employment opportunity (EEO) complaint, which included claims of,
among other things, the above-referenced overtime fraud and abuse, alleged
improper promotions of her two coworkers, and improper manipulation of the
selection process for the GS-12 position. W -1 AF, Tab 10 at 4, 6, 15. Later that
same year, on November 17, 2017, the appellant also reported the alleged
3
overtime theft and abuse beginning in 2014, to the agency’s Office of
Accountability and Whistleblower Protection (OAWP). Id. at 32-36, 94, 102-03.
She told OAWP that one of her two coworkers had continued these practices from
2014 through 2017. Id. at 33.
In February of 2019, the agency initiated an investigation into the
appellant’s alleged misconduct of sending inappropriate texts of a personal nature
to another agency employee with whom she previously had a consensual sexual
relationship, who we refer to here as employee A, from her work cellphone, as
well as other incidents.2 W-1 AF, Tab 10 at 113-14, Tab 20 at 19-21. During that
investigation, the appellant was temporarily transferred to a different duty
location. W-1 AF, Tab 10 at 8. On July 15, 2019, the EMS Chief proposed to
suspend the appellant for 7 days based on one of her alleged texts. W-1 AF,
Tab 20 at 16-17. Specifically, he alleged that it was inappropriate for the
appellant to send the profanity-laced text to employee A after he requested that
she “please just leave [him] alone.” Id. at 16. After the appellant responded, the
Assistant Director for the Atlanta Veterans Administration Medical Center issued
a decision sustaining the charge and suspending the appellant for 7 days, effective
August 12, 2019. W-1 AF, Tab 1 at 7, Tab 20 at 11-15, 18.
On or about June 16, 2020, the appellant filed a complaint with the Office
of Special Counsel (OSC) setting forth a general narrative of the above-described
actions, and asserting that, in reprisal for her disclosures and activities, the
agency subjected her to a hostile work environment, did not select her for the
GS-12 position, temporarily transferred her to a different duty location, and
suspended her for 7 days. W-1 AF, Tab 10 at 95-117. On July 15, 2020, OSC
issued a letter advising the appellant that it was closing out its inquiry without
taking corrective action. Id. at 113. In this letter, OSC described the appellant’s
OSC complaint as alleging that she “received a [7-]day suspension in August of
2 This employee was not either of the coworkers who were the subject of the appellant’s
overtime disclosures. W-1 AF, Tab 20 at 16.
4
2019 and the agency mishandled an EEO investigation” in retaliation for her
November 2017 OAWP complaint. Id.
The appellant then filed the instant IRA appeal and requested a hearing.
W-1 AF, Tab 1. The administrative judge notified the appellant of her burden on
the jurisdictional issue. W-1 AF, Tabs 5, 14. After the appellant responded, the
administrative judge found that the appellant met her jurisdictional burden as to a
single issue, “whether the appellant’s disclosure to [OAWP] that [the EMS Chief]
‘preselected’ another employee for a promotion was a contributing factor in her
[7]-day suspension.” W-1 AF, Tab 16. The administrative judge identified a
second issue as whether the Assistant Director of the Atlanta VA Health Care
System exerted “undue influence” over the EEO investigation. Id. However, he
found that the Board lacks jurisdiction over this claim. Id.
After a hearing, the administrative judge issued an initial decision denying
the appellant’s request for corrective action on the merits. W-2 AF, Tab 11,
Initial Decision (ID). He found that the appellant failed to prove by preponderant
evidence that her disclosure was protected, i.e., that she reasonably believed that
the EMS Chief abused his authority in selecting the EMS Assistant Chief. ID
at 4-7.
The appellant has filed a petition for review, disputing the administrative
judge’s finding that her disclosure was not protected and raising numerous other
issues.3 Petition for Review (PFR) File, Tab 1. The agency has filed a response.
PFR File, Tab 4.
3 After the close of the record on review, the appellant filed three separate motions for
leave to submit additional evidence. PFR File, Tabs 6, 8, 9. Because we are remanding
this appeal for other reasons, we deny these motions. The appellant will have the
opportunity to submit additional evidence on remand that is relevant to the issues in this
appeal.
5
ANALYSIS
We revisit the issue of jurisdiction sua sponte on review.
As noted above, the administrative judge found that the appellant
established the Board’s jurisdiction over the single claim of whether the
appellant’s disclosure to OAWP that the EMS Chief improperly manipulated the
selection process to select another employee for the GS-12 position was a
contributing factor in the appellant’s 7-day suspension. W-1 AF, Tab 16 at 1.
The parties do not directly challenge the administrative judge’s jurisdictional
findings on review. However, we have the obligation to determine the full extent
of the Board’s jurisdiction over this appeal. See Parrish v. Merit Systems
Protection Board , 485 F.3d 1359, 1362 (Fed. Cir. 2007) (stating that “the Board
has the authority, indeed the obligation, to determine its own jurisdiction over a
particular appeal” (citation omitted)); Giove v. Department of Transportation ,
89 M.S.P.R. 560, ¶ 8 (2001) (reiterating that jurisdiction is a threshold issue in
adjudicating an appeal that is always before the Board and may be raised at any
time during a Board proceeding), aff’d per curiam , 50 F. App’x 421 (Fed. Cir.
2002). Further, the appellant appears to re-raise some of her claims on review,
referencing the disclosure regarding the improper promotions for two of her
coworkers and her own temporary relocation. PFR File, Tab 1 at 9-11. We must
first resolve the threshold issue of jurisdiction over these claims before
proceeding to the merits. See Schmittling v. Department of the Army , 219 F.3d
1332, 1336-37 (Fed. Cir. 2000) (explaining that the Board cannot proceed to the
merits in an IRA appeal without first determining that it has jurisdiction).
To establish the Board’s jurisdiction over an IRA appeal, the appellant
must prove by preponderant evidence that she exhausted her administrative
remedy before OSC and make 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 protected disclosure or protected activity was a contributing factor in
6
the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). Edwards v. Department of Labor , 2022 MSPB 9, ¶ 8;
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 11; Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
The appellant alleged below that she made the following disclosures and
engaged in the following activities: disclosing overtime fraud and abuse around
the summer of 2014; disclosing coworkers’ improper promotions in the
fall/winter of 2014; disclosing an improper manipulation of the selection process
for the GS-12 position in 2017; filing an EEO complaint in April of 2017; and
filing an OAWP complaint in November 2017. W-1 AF, Tab 10 at 4, 6, 15-16,
32-36, 94, 102-03; HR (testimony of the appellant). She further alleged that, in
reprisal for these disclosures and activities, the agency subjected her to a hostile
work environment, did not select her for the GS-12 position, temporarily
transferred her, and suspended her for 7 days. W-1 AF, Tab 10 at 6-11. As
briefly noted above, the appellant re-raises on review the improper promotions of
her two coworkers and the temporary relocation. PFR File, Tab 1 at 9-11.
The appellant exhausted her administrative remedy with OSC.
In his order finding Board jurisdiction, the administrative judge did not
make express findings on exhaustion. W-1 AF, Tab 16. However, it appears that
he implicitly found the appellant exhausted only the disclosures and personnel
action that OSC identified in the close-out letter. W-1 AF, Tab 10 at 113, Tab 16.
Such a finding is incorrect because an exhaustion determination must be made
based on all the record evidence and not solely on OSC’s letters. See Lewis v.
Department of Defense , 123 M.S.P.R. 255, ¶¶ 10-11 (2016) (finding that an
administrative judge erred in making her exhaustion determination based on
OSC’s close-out and final determination letters without considering an email in
the record from the appellant to OSC). Therefore, we make new findings on the
issue of exhaustion here.
7
An appellant may demonstrate exhaustion through her initial OSC
complaint or correspondence with OSC. Chambers, 2022 MSPB 8, ¶ 11. She
need only show that she advised OSC of the “core of [her] retaliation claim,” thus
giving “OSC sufficient basis to pursue an investigation.” Briley v. National
Archives & Records Administration , 236 F.3d 1373, 1377-78 (Fed. Cir. 2001) ;
see Chambers, 2022 MSPB 8, ¶ 10 (explaining that an appellant may give a more
detailed account of his whistleblowing activities before the Board than he did to
OSC (citing Briley, 236 F.3d at 1378). Here, although the appellant’s OSC
complaint does not set forth the above allegations in a concise and delineated
manner, we find that the general narrative provided in the OSC complaint
contains the core of her claims as set forth above. W-1 AF, Tab 10 at 95-117.
For example, her OSC complaint references the alleged overtime fraud and abuse,
the improper promotions, the improper manipulation of the selection process for
the GS-12 position, and the appellant’s EEO and OAWP complaints. W-1 AF,
Tab 10 at 102-08. Additionally, it references the alleged hostile work
environment, the nonselection for the GS-12 position, the temporary transfer, and
the 7-day suspension. Id. Further, the appellant’s jurisdictional submission
includes discussion of all of these claims. W-1 AF, Tab 10. Accordingly, we
find that the appellant established by preponderant evidence that she exhausted
her administrative remedy with OSC.
The appellant nonfrivolously alleged that she made protected disclosures under
5 U.S.C. § 2302(b)(8) and engaged in protected activities under 5 U.S.C.
§ 2302(b)(9) with respect to all of her claims.
The administrative judge found the appellant nonfrivolously alleged that
she made one protected disclosure in her November 2017 OAWP complaint that
the EMS Chief preselected the successful applicant for the GS-12 Assistant Chief
position. W-1 AF, Tab 16; ID at 4. He identified the appellant’s other exhausted
disclosure as an allegation that the Assistant Director exercised “undue influence
over a[] . . . deficient EEO investigation.” W-1 AF, Tab 16. As noted above, the
8
administrative judge’s analysis was limited in that he considered only two alleged
disclosures. Therefore, we now address the entirety of the appellant’s exhausted
claims.
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in 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, 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. (citations omitted).
Here, the appellant alleged that she disclosed to the EMS Chief that two
coworkers were “stealing or trumping up” their overtime hours and that one of
those coworkers had told her of this activity directly. W-1 AF, Tab 10 at 15.
Taking the appellant’s allegations as true, we find that she has made a
nonfrivolous allegation that she reasonably believed that her disclosure evidenced
a violation of law, rule, or regulation, and was therefore protected under
5 U.S.C. § 2302(b)(8)(A)(i). See DiGiorgio v. Department of the Navy ,
84 M.S.P.R. 6, ¶ 14 (1999) (finding that an appellant’s disclosure of employees
claiming overtime for hours that they did not work obviously implicated a
violation of law, rule, or regulation).
The appellant also alleged that she disclosed to the EMS Chief that he
improperly preselected two coworkers for promotions from the GS-7 level to
GS-9 level, W-1 AF, Tab 10 at 6, 18, and that he improperly manipulated the
selection process for the GS-12 position because she outscored the selectee on the
interview but was nonetheless not selected, HR (testimony of the appellant).
9
Both disclosures could reasonably be categorized as disclosures evidencing an
abuse of authority. The Board has historically defined an abuse of authority as an
arbitrary and capricious exercise of power by a Federal official or employee that
adversely affects the rights of any person or 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). However, the U.S. Court of Appeals for
the Federal Circuit has defined it more broadly as an arbitrary and capricious
exercise of authority that is contrary to the agency’s mission. Smolinski v. Merit
Systems Protection Board , 23 F.4th 1345, 1351-52 (Fed. Cir. 2022). Here, the
appellant’s allegations effectively assert that she disclosed to the EMS Chief that
his decisions to improperly promote two coworkers and hire a person less
qualified than she lacked a justifiable basis and resulted in the gain or advantage
of the coworkers and the selectee, respectively. We conclude that, if true, a
person in the appellant’s positon could reasonably conclude that such conduct
evidences an abuse of authority under either of these definitions.4 Thus, she has
met the nonfrivolous allegation standard. See 5 C.F.R. § 1201.4(s) (defining a
4 We acknowledge that, in the initial decision, the administrative judge found that the
appellant failed to establish by preponderant evidence that she had a reasonable belief
that the selection process for the GS-12 position was improper, ID at 4-7, and that this
is the primary issue raised in the appellant’s petition for review, PFR File, Tab 1. We
make no findings regarding the appellant’s specific argument on review concerning this
claim because the administrative judge’s findings on this matter are incomplete and, in
any event, we are vacating the initial decision. See Thomas v. Department of the Army ,
2022 MSPB 35, ¶ 8 (stating that an initial decision must identify all material issues of
fact and law, summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and her legal reasoning, as well as the
authorities on which that reasoning rests). On remand, if appropriate, the
administrative judge should consider the appellant’s claims that she was told by a
member of the interview panel that the selecting official improperly awarded veterans’
preference points to the selectee. W-1 AF, Tab 10 at 106. Notably, the selecting
official admitted that he awarded veterans’ preference points to the selectee, HR
(testimony of the EMS Chief), and the agency appears to have admitted during the
discovery process below that no veterans’ preference points should have been awarded
in this selection, W-1, Tab 15 at 18. The administrative judge should also address in
his remand initial decision the appellant’s arguments on review regarding this alleged
disclosure.
10
nonfrivolous allegation as an assertion that, if proven, could establish the matter
at issue).
In considering the appellant’s claim regarding her EEO complaint, the
administrative judge found that the appellant failed to nonfrivolously allege that
she reasonably believed the Assistant Director exercised undue influence over the
investigation into her April 2017 EEO complaint. W-1 AF, Tab 10 at 114,
Tab 16. In doing so, the administrative judge mischaracterized the nature of the
appellant’s claimed disclosures. In the EEO process, the appellant alleged, as
relevant here, that her nonselection was in reprisal for disclosing her coworkers’
overtime fraud and their improper promotions, as well as the manipulated
selection process for the GS-12 position. W-1 AF, Tab 10 at 15, 32 -33. The
administrative judge did not consider whether the appellant’s EEO complaint
constituted a protected activity under 5 U.S.C. § 2302(b)(9). We find that it did.
The Board recently reaffirmed the longstanding principle that disclosures
made in an EEO complaint are not protected under 5 U.S.C. § 2302(b)(8).
See Edwards, 2022 MSPB 9, ¶¶ 10, 22-23; Williams v. Department of Defense ,
46 M.S.P.R. 549, 554 (1991). However, the Board has jurisdiction over
complaints seeking to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(9)
(A)(i). Bishop v. Department of Agriculture , 2022 MSPB 28, ¶¶ 3, 15. As noted
above, the appellant’s EEO complaint was not limited to claims of discrimination;
she also sought to remedy retaliation for alleged disclosures of wrongdoing under
5 U.S.C. § 2302(b)(8). Moreover, according to the appellant, she was told that
these claims could not be investigated further in that venue because they were not
related to discrimination. W-1 AF, Tab 10 at 33. We find that the appellant
nonfrivolously alleged that she filed the EEO complaint to remedy whistleblower
reprisal, which is an activity falling squarely within the Board’s jurisdiction
under 5 U.S.C. § 2302(b)(9)(A)(i). See Bishop, 2022 MSPB 28, ¶¶ 15-16
(concluding that an administrative judge erred in finding an appellant engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) when he filed an EEO
11
complaint that did not seek to remedy whistleblower reprisal). As such, we find
that the appellant nonfrivolously alleged that she engaged in protected activity
under section 2302(b)(9)(A)(i) with respect to her EEO complaint.
Lastly, we turn to the appellant’s OAWP complaint. Prior to December 12,
2017, the whistleblower protection statutory scheme provided that “cooperating
with or disclosing information to the Inspector General of an agency, or [OSC], in
accordance with applicable provisions of law,” is protected. 5 U.S.C. § 2302(b)
(9)(C). Edwards, 2022 MSPB 9, ¶ 29. Section 1097(c)(1) of the National
Defense Authorization Act for Fiscal Year 2018 (2018 NDAA), Pub. L. No. 115-
91, 131 Stat. 1283, 1618 (2017), amended section 2302(b)(9)(C) to provide that,
in addition to the Inspector General of an agency or OSC, a disclosure to “any
other [agency] component responsible for internal investigation or review” is also
protected. Edwards, 2022 MSPB 9, ¶ 29. The Board has held that this statutory
amendment is not retroactive when all of the relevant events occurred prior to the
2018 NDAA’s enactment. Edwards, 2022 MSPB 9, ¶¶ 30-33. However, in
similar circumstances, the Board found that the burden-shifting scheme set forth
in 5 U.S.C. § 1221(e) applied to the appellant’s claim that her removal was
retaliation for protected activity under 5 U.S.C. § 2302(b)(9)(C) when the activity
occurred prior to the effective date of the Whistleblower Protection Enhancement
Act of 2012, which made such activity appealable to the Board, but her removal
occurred after the effective date. See Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 49-51.
OAWP is charged with, among other tasks, receiving whistleblowing
disclosures, referring them to other agency components for review, and ensuring
any recommendations that result from such investigations are implemented.
38 U.S.C. § 323(c)(1)(C)-(D), (F). It is also required to investigate claims of
reprisal for whistleblowing. 38 U.S.C. § 343(c)(1)(H)(iii). Thus, we find that it
is an agency component “responsible for internal investigation and review.”
5 U.S.C. § 2302(b)(9)(C). The appellant contacted OAWP less than a month
12
prior to the enactment of the 2018 NDAA. Therefore, applying the reasoning in
Pridgen, 2022 MSPB 31, ¶¶ 49-51, we find that the Board has jurisdiction over
personnel actions that the appellant nonfrivolously alleged occurred after the
2018 NDAA’s December 12, 2017 enactment.
In any event, the appellant’s exercise of her right to file a complaint with
OAWP in which she alleged she was subjected to a hostile work environment in
reprisal for protected disclosures is a nonfrivolous allegation of protected activity
under 5 U.S.C. § 2302(b)(9)(A)(i) over which the Board has jurisdiction in this
IRA appeal. W-1 AF, Tab 10 at 32; see Bishop, 2022 MSPB 28, ¶¶ 13, 15. Thus,
we find that the appellant nonfrivolously alleged that her OAWP complaint
constitutes protected activity.
The appellant nonfrivolously alleged that the agency took four personnel actions
against her.
As set forth above, the appellant alleged that the agency did not select her
for the GS-12 position, temporarily relocated her to a different duty location,
suspended her for 7 days, and subjected her to a hostile work environment.
W-1 AF, Tab 10 at 6-11. The agency’s failure to select the appellant to the
GS-12 position qualifies as a personnel action under 5 U.S.C. § 2302(a)(1)(A)(ii).
Additionally, a suspension is a disciplinary action qualifying as a personnel
action under 5 U.S.C. § 2302(a)(1)(A)(iii). Our discussion of whether the
appellant nonfrivolously alleged further personnel actions focuses on the
appellant’s claim of a hostile work environment. As discussed below, we analyze
her temporary relocation as part of this alleged hostile work environment.
Regarding the appellant’s claim of a hostile work environment, the Board
has explained that such a claim may amount to a covered personnel action when it
constitutes a significant change in duties, responsibilities, or working conditions
pursuant to 5 U.S.C. § 2302(a)(2)(A)(xii). Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶ 16. To qualify as a personnel action under that section,
the agency actions must have practical and significant effects on the overall
13
nature and quality of an employee’s working conditions, duties, or
responsibilities. Id.
Here, the appellant appears to allege two separate instances of a hostile
work environment. Specifically, she alleges that, in 2014, a lower-graded
coworker with whom she was previously friends began performing the appellant’s
duties, demanding she attend certain meetings, and generally treating her
condescendingly. W-1 AF, Tab 10 at 5, 32 -33. The appellant asserted that her
supervisor, the EMS Chief, was aware of this behavior and permitted it. Id.
at 32-33. The appellant further alleged that the same coworker threatened the
appellant, causing the appellant to attempt to file a police report against her. Id.
at 5. Additionally, the appellant asserted that sometime in 2014, the EMS Chief
“downgraded” her duties and required her to “push heavy linen carts,” a duty
generally assigned to a lower-level employee. Id. at 32. She also asserted that
the EMS Chief “held [her] against [her] will” one time when she tried to leave his
office. Id. at 104.
On their face, these allegations relate to specific duties the appellant was
required to perform and purport to establish a work environment that was
threatening and hostile. As such, the appellant has nonfrivolously alleged that,
collectively, these instances had a significant impact on the overall nature of her
duties, responsibilities, and working conditions. Accordingly, we find that the
appellant nonfrivolously alleged that the agency took a personnel action against
her in 2014 under 5 U.S.C. § 2302(a)(2)(A)(xii). See Skarada, 2022 MSPB 17,
¶¶ 16-18; see generally Holderfield v. Merit Systems Protection Board , 326 F.3d
1207, 1209 (Fed. Cir. 2003) (suggesting that a number of minor agency actions
relating to the appellant’s working conditions may amount to a covered personnel
action under section 2302(a)(2)(A)(xii) collectively, even if they are not covered
personnel actions individually).
The appellant also alleged that the agency again subjected her to a hostile
work environment several years later between 2017 and 2019. Specifically, she
14
alleged that a coworker, who was also employee A’s girlfriend, cursed at her,
slammed doors around her, made “spitting noises” at her, and imposed on her
personal space. W-1 AF, Tab 10 at 7-8, 72-73, 80, 108, Tab 20 at 82. She further
alleged that, during this time period, the agency ignored her complaints of a prior
hostile work environment and sexual harassment and that it conducted a deficient
EEO investigation into her claims. Id. at 7-8, 73, 104. Additionally, she alleged
that the agency began an investigation into her behavior toward employee A in
February 2019, and temporarily relocated her from February to July 2019 pending
the results of that investigation. Id. at 8, 61, 114-15.
Regarding the agency’s investigation into the appellant’s alleged
misconduct, it is well settled that an investigation is not a personnel action per se.
See Spivey v. Department of Justice , 2022 MSPB 24, ¶ 10 (citations omitted).
However, such an investigation may, in combination with other agency actions,
constitute a significant change in duties, responsibilities, and working conditions.
See id., ¶¶ 10-13. Here, as set forth above, the appellant alleged that, as a part of
the investigation, she was temporarily transferred5 to a different duty location,
which resulted in her “working out of breakrooms, waiting rooms, and/or using a
subordinates’ assigned desk,” whereas prior to the transfer, she had her own
“single-person office.” W-1 AF, Tab 10 at 8. We find that the appellant’s
allegation of a change in work space, work location, and work amenities amounts
5 We have considered whether the appellant’s alleged temporary relocation constitutes a
“transfer” or “reassignment,” which are personnel actions under 5 U.S.C. § 2302(a)(2)
(A)(iv). However, transfers and reassignments involve a change of position either
within the agency or to another agency. 5 C.F.R. § 210.102(b)(10), (12), (18); see
Onasch v. Department of Transportation , 63 M.S.P.R. 158, 162-63 (1994) (applying the
definitions at 5 C.F.R. § 210.102(b) to determine whether an appellant suffered a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(iv)). The appellant was relocated from
the agency’s Fort McPherson campus to its Arcadia clinic, both of which are located in
Atlanta, Georgia. W-1 AF, Tab 10 at 8. She has not alleged any accompanying change
in duties and indicates that she received no official notification of her relocation. Id.
The Board has concluded that a change in duty site alone does not constitute a
personnel action. Shivaee v. Department of the Navy , 74 M.S.P.R. 383, 388-89 (1997)
(declining to find that being moved from within to outside naval base, without more,
was a significant change in duties, responsibilities, or working conditions).
15
to a nonfrivolous allegation of a significant change in working conditions under
section 2302(a)(2)(A)(xii).
Regarding the remaining allegations generally relating to a hostile work
environment claim, such as her coworker’s physical treatment of her, the
agency’s failure to investigate her complaints of a prior hostile work environment
and sexual harassment, and its deficient EEO investigation into her claims, W-1
AF, Tab 10 at 7-8, 73, 104, such actions could have an impact on the appellant’s
ability to feel safe and heard in her work space. Therefore, taking these actions
collectively, we find that the appellant has nonfrivolously alleged that the actions
had practical and significant effect on the overall nature and quality of her
working conditions, and thus, has nonfrivolously alleged that she experienced a
significant change in duties, responsibilities, and working conditions under
5 U.S.C. § 2302(a)(2)(A)(xii). See Skarada, 2022 MSPB 17, ¶¶ 16, 18.
Accordingly, we find that the appellant nonfrivolously alleged that the
totality of the agency’s actions between 2017 and 2019, as set forth above,
constitutes a personnel action under section 2302(a)(2)(A)(xii).
The appellant has nonfrivolously alleged that her protected disclosures and
protected activities were contributing factors in the agency’s decision to take the
above discussed personnel actions against her.
As set forth above, to establish the Board’s jurisdiction over her claims, the
appellant must nonfrivolously allege that a protected disclosure or activity was a
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a). Edwards, 2022 MSPB 9, ¶ 8; Salerno,
123 M.S.P.R. 230, ¶ 5. One way to establish this criterion is the
knowledge/timing test, under which an employee may nonfrivolously allege that
the disclosure or activity was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the disclosure or activity and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
16
disclosure or activity was a contributing factor in the personnel action. Salerno,
123 M.S.P.R. 230, ¶ 13.
We address each alleged personnel action below in chronological order to
determine whether the appellant nonfrivolously alleged that her protected
disclosures or activities were contributing factors in the personnel actions.
The alleged 2014 significant change in duties, responsibilities, and
working conditions
As discussed above, the appellant has nonfrivolously alleged that the
agency subjected her to a significant change in duties, responsibilities, or working
conditions in 2014 and that the EMS Chief permitted in some instances, and was
responsible in other instances, for the incidents underlying that environment. W-
1 AF, Tab 10 at 5, 32-33, 104. Regarding the appellant’s disclosure concerning
the overtime theft and abuse, the appellant alleged that she made this disclosure
in the late summer or early fall of 2014, and that she made the disclosure to the
EMS Chief. Id. at 32. Regarding her disclosure concerning the improper
promotions, the appellant alleged that she raised this issue with the EMS Chief in
the fall or winter of 2014. Id. at 6, 32-33. Because the appellant has alleged that
both disclosures occurred within the same year as the onset of the significant
change in duties, responsibilities, and working conditions, and that one of the
agency officials responsible for that action had knowledge of both of the
disclosures, we find that the appellant’s allegations meet both prongs of the
knowledge/timing test. Accordingly, we find that the appellant nonfrivolously
alleged that these disclosures were contributing factors in the alleged significant
change in duties, responsibilities, and working conditions in 2014. See Salerno,
123 M.S.P.R. 230, ¶ 13.
Regarding the appellant’s 2017 disclosure regarding the improper selection
process, her 2017 EEO complaint, and her 2017 OAWP complaint, these
disclosures and activities occurred after the alleged 2014 hostile work
environment, and therefore, could not have been contributing factors in this
17
action. See Orr v. Department of the Treasury , 83 M.S.P.R. 117, ¶ 15 (1999)
(concluding that whistleblowing that occurred after the agency took alleged
personnel actions could not have been a contributing factor in those actions),
aff’d per curiam , 232 F.3d 912 (Fed. Cir. 2000) . Accordingly, we find that the
appellant failed to nonfrivolously allege that her disclosure regarding the
improper selection process and her EEO and OAWP complaints were contributing
factors in the 2014 change in duties, responsibilities, and working conditions.
The alleged nonselection
As set forth above, the appellant alleged that she was not selected for the
GS-12 position in reprisal for her 2017 EEO and OAWP complaints. W-1 AF,
Tab 10 at 4-5, 106. Although not entirely clear, she may also be seeking to allege
that the nonselection was in retaliation for her later disclosure to the EMS Chief
that his decision was the result of preselection. It appears undisputed that the
nonselection occurred in March of 2017. Id. at 14. The appellant’s disclosure to
the EMS Chief regarding the propriety of the nonselection, the filing of her EEO
complaint in April of 2017, and the filing of her OAWP complaint in November
of 2017, occurred after this alleged personnel action. Id. at 4; HR (testimony of
the appellant). As such, none could have been a contributing factor in this action.
Orr, 83 M.S.P.R. 117, ¶ 15 . Accordingly, we find that the appellant failed to
make a nonfrivolous allegation that her 2017 disclosures and activities were
contributing factors in her nonselection.
The appellant’s disclosures regarding the overtime fraud and abuse and
improper promotions occurred in 2014, prior to the appellant’s 2017 nonselection.
The Board has held that personnel actions taken within 1 to 2 years of the
protected disclosure or activity satisfy the timing prong of the knowledge/timing
test, but those that take place more than 2 years after the disclosure or activity are
too remote to satisfy this test. See Pridgen, 2022 MSPB 31, ¶ 63 (applying the
knowledge/timing test at the merits stage of an appeal). Here, the appellant made
her 2014 disclosures approximately 3 years before the nonselection occurred in
18
2017. Thus, her allegations fail the timing prong of the knowledge/timing test.6
Accordingly, we find that the appellant failed to make a nonfrivolous allegation
that these disclosures were contributing factors in her nonselection under the
knowledge/timing test.
Nonetheless, the knowledge/timing test is not the only way for an appellant to
satisfy the contributing factor criterion. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 14 (2012). If the Board determines that an appellant has
failed to satisfy the knowledge/timing test, it 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 agency officials involved in the alleged personnel action, and whether those
individuals had a desire or motive to retaliate against the appellant. Id., ¶ 15.
In this case, the appellant’s 2014 disclosure concerning improper
promotion directly implicated the EMS Chief, and the EMS Chief would therefore
have had some motive to retaliate. See Brousseau v. Department of Agriculture ,
97 M.S.P.R. 637, ¶ 53 (2003). Furthermore, although the agency put forth a
cogent explanation for why it did not select the appellant for promotion, ID at
5-6, appointments and promotions by their very nature involve some measure of
discretion, and the agency’s reasons for selecting another individual over the
appellant are certainly debatable. This is especially so considering the
discrepancy regarding veterans’ preference points noted above. Supra, ¶ 18 n.4.
Based on these considerations, we find that the appellant has made a nonfrivolous
allegation that her 2014 disclosure concerning the improper promotion of two
coworkers was a contributing factor in her 2017 nonselection for promotion. See
Powers v. Department of the Navy , 69 M.S.P.R. 150, 156 (1995) (holding that any
weight given to a whistleblowing disclosure, either alone or in combination with
other factors, can satisfy the contributing factor standard). As for the 2014
6 Despite not meeting the timing prong, the appellant has alleged that she made these
disclosures to the EMS Chief and that he was responsible for the nonselection. As such,
she does meet the knowledge prong of the test.
19
disclosure concerning overtime fraud and abuse, this is a closer call because this
disclosure did not directly implicate the EMS chief or any other official involved
in the 2017 selection process. However, this pro se appellant’s theory of the case
appears to be that the EMS Chief favored the two employees whom the appellant
accused of overtime fraud and abuse and, considering the low standard for
making a nonfrivolous allegation, we find it appropriate to resolve this threshold
issue in the appellant’s favor. See Ingram v. Department of the Army ,
114 M.S.P.R. 43, ¶ 10 (2010) (holding that any doubt or ambiguity as to whether
the appellant made nonfrivolous jurisdictional allegations should be resolved in
favor of finding jurisdiction). For these reasons, we find that the appellant has
made a nonfrivolous allegation that her 2014 disclosures regarding the overtime
fraud and abuse and the improper promotions were contributing factors in her
2017 nonselection.
The 2017-2019 significant change in duties, responsibilities, and
working conditions
The appellant asserted that her coworker, who was also employee A’s
girlfriend, was responsible for some of the significant changes in the appellant’s
duties, responsibilities, and working conditions between 2017 and 2019. W-1 AF,
Tab 10 at 5. She further suggested that the EMS Chief bore part of the
responsibility for failing to investigate her complaints of a hostile work
environment and sexual harassment, and selecting the investigator who looked
into allegations that the appellant sent employee A inappropriate texts from her
work phone, which in turn led to the appellant’s temporary relocation. Id. at 73,
83, Tab 20 at 19.
Beginning with the appellant’s disclosure to the EMS Chief that he
inappropriately manipulated the selection process and preselected the selectee for
the GS-12 position, we find that the appellant’s allegations meet the
knowledge/timing test with respect to this personnel action. Specifically, the
alleged disclosure occurred in the weeks after the March 2017 nonselection, and
20
the alleged personnel action spans from 2017-2019, thereby meeting the timing
prong. Further, as previously noted, the appellant has alleged that she made this
disclosure directly to the EMS Chief, and she has alleged that he played a role in
the significant change in duties, responsibilities, and working conditions, thereby
meeting the knowledge prong. Accordingly, we find that the appellant
nonfrivolously alleged that her 2017 disclosure regarding the manipulation of the
selection process for the GS-12 position was a contributing factor in this
personnel action. See Salerno, 123 M.S.P.R. 230, ¶¶ 13-14.
Regarding the appellant’s 2014 disclosures concerning the overtime fraud
and abuse and improper promotions, although the appellant has met the
knowledge prong of the knowledge/timing test by alleging that she made these
disclosures directly to the EMS Chief, she has failed to meet the timing prong of
the test because the 2014 disclosures occurred at least 3 years prior to the alleged
significant change in duties, responsibilities, and working conditions. Pridgen,
2022 MSPB 31, ¶ 63 . Thus, the appellant has failed to nonfrivolously allege that
these disclosures were contributing factors in the personnel action under the
knowledge/timing test. Nonetheless, as explained above, she may still meet the
nonfrivolous allegation standard for the contributing factor element in other ways.
See Dorney, 117 M.S.P.R. 480, ¶ 15. Although the EMS Chief’s handling of the
competing harassment allegations appears to be reasonable on its face, as
explained above, the EMS Chief likely had some motive to retaliate for both of
the appellant’s 2014 disclosures. Supra, ¶ 39. Considering the totality of the
circumstnaces, we find that the appellant has made a nonfrivolous allegation that
both of these disclosures were a contributing factor in the significant change in
duties, responsibilities and working conditions that she experienced between 2017
and 2019.
Regarding the appellant’s alleged protected activities, the appellant has
alleged that she filed her EEO complaint in April of 2017 and her OAWP
complaint in November of 2017. Because the change in duties, responsibilities,
21
and working conditions continued on for another year and a half to 2 years, we
find that the appellant’s allegations meet the timing prong of the
knowledge/timing test with respect to these two activities. Pridgen, 2022 MSPB
31, ¶ 63. Regarding the EEO complaint, the record appears to suggest that the
EMS Chief had knowledge of the complaint, W-1 AF, Tab 15 at 9, 26, and we
resolve any ambiguity as to whether the appellant made nonfrivolous allegations
in favor of finding jurisdiction, Usharauli v. Department of Health & Human
Services, 116 M.S.P.R. 383, ¶ 19 (2011). Thus, we find that the appellant’s
allegations meet the knowledge/timing test with respect to her EEO complaint.
See Salerno, 123 M.S.P.R. 230, ¶¶ 13-14.
After our thorough review of the record, the appellant does not appear to
have specifically alleged that the EMS Chief was aware of the OAWP complaint
during the time period relevant to this personnel action. Accordingly, the
appellant has failed to nonfrivolously allege the knowledge prong of the
knowledge/timing test. See Pridgen, 2022 MSPB 31, ¶¶ 12, 61, 63 -65 (agreeing
with an administrative judge’s determination that an appellant failed to satisfy the
knowledge/timing test when she did not prove that the agency officials who
proposed and instituted her removal had knowledge of her protected activity of
filing an OSC complaint) . Nevertheless, considering that the content of the
OAWP complaint concerned the same alleged overtime fraud and abuse that the
appellant reported to the EMS Chief in 2014, and that the EMS Chief may have
had some motive to retaliate for that disclosure, we find that the appellant has
made a nonfrivolous allegation under Dorney and Powers that the OAWP
complaint was a contributing factor in the significant change in duties,
responsibilities, and working conditions.
The appellant’s 7-day suspension
The appellant has alleged that the EMS Chief proposed her 7-day
suspension on July 15, 2019, and that the Assistant Director issued a decision
sustaining the 7-day suspension on July 30, 2019. W-1 AF, Tab 20 at 11-17.
22
Regarding the 2014 disclosures concerning the overtime fraud and abuse and the
improper promotions, the 2017 disclosure regarding the alleged manipulation of
the selection process for the GS-12 position, and the appellant’s April 2017 EEO
complaint, these alleged protected disclosures and this alleged protected activity
occurred more than 2 years prior to the issuance of the notice of proposed
suspension. As such, the appellant’s allegations do not meet the timing prong of
the knowledge/timing test. Pridgen, 2022 MSPB 31, ¶ 63 . Regarding the
appellant’s November 2017 OAWP complaint, although that complaint was filed
within 2 years of the 7-day suspension, thereby meeting the timing prong of the
knowledge/timing test, the appellant does not appear to have alleged that either
the proposing official, here the EMS Chief, or the deciding official, here the
Assistant Director, had knowledge of the OAWP complaint. As such, the
appellant has similarly failed to nonfrivolously allege the knowledge prong of the
knowledge/timing test. See id. Nevertheless, we observe that the 7-day
suspension was based on information uncovered during the investigation that
comprised part of the appellant’s hostile work environment claim. W1-AF, Tab
20 at 16. Therefore, our findings on the contributing factor issue in connection
with the hostile work environment claim, supra ¶¶ 43-44, can fairly be imputed to
the 7-day suspension, see Agoranos v. Department of Justice , 119 M.S.P.R. 498,
¶¶ 22-23 (2013) (finding the contributing factor element satisfied for each
personnel action that was part of a continuum of related personnel actions).
This complex IRA appeal involves multiple disclosures and multiple
personnel actions. To assist and guide the administrative judge in adjudicating
the appeal on remand, we provide the following summary. The appellant has
made nonfrivolous allegations that she made protected disclosures and engaged in
protected activity as follows: (1) a 2014 disclosure to the EMS Chief concerning
overtime fraud and abuse by two coworkers, (2) a 2014 disclosure to the EMS
Chief concerning the improper promotion of the same two coworkers, (3) a 2017
disclosure to the EMS Chief concerning his alleged manipulation of a promotion
23
selection process, (4) an April 2017 EEO complaint concerning the same matters
as the first three disclosures, and (5) a November 2017 OAWP complaint
concerning the alleged overtime fraud and abuse. The appellant also made
nonfrivolous allegations that these alleged protected disclosures and activities
were contributing factors in multiple personnel actions as follows: First, the
appellant made a nonfrivolous allegation that disclosures (1) and (2) were
contributing factors in a significant changed in duties, responsibilities, and
working conditions in 2014. Second, the appellant made a nonfrivolous
allegation that disclosures (1) and (2) were contributing factors in a nonselection
for promotion on or about March 20, 2017. Third, the appellant made a
nonfrivolous allegation that all five disclosures and activities were contributing
factors in a significant change in duties, responsibilities, and working conditions
between 2017 and 2019. Fourth, the appellant made a nonfrivolous allegation
that all five disclosures and activities were contributing factors in a 7-day
suspension, beginning August 12, 2019. The appellant exhausted all four of these
claims before OSC.
After further development of the record as appropriate, and after affording
the appellant an opportunity for a supplemental hearing, the administrative judge
shall determine whether the appellant has proven her four claims by a
preponderance of the evidence. In particular, the administrative judge shall
determine whether the appellant has proven by preponderant evidence that her
claimed disclosures and activities were, in fact, protected under the WPA, her two
hostile work environment claims amounted to a significant change in duties,
responsibilities and working conditions under Skarada, 2022 MSPB 17, and her
protected activities were contributing factors in the personnel actions as set forth
above. If the appellant proves any of her claims, the agency will have the
opportunity to show by clear and convincing evidence that it would have taken
the same personnel actions notwithstanding the appellant’s protected disclosures
and activities.
24
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication on the merits in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Gibson_Tenita_T_AT-1221-20-0815-W-2_Remand_Order.pdf | 2024-04-08 | TENITA T. GIBSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-20-0815-W-2, April 8, 2024 | AT-1221-20-0815-W-2 | NP |
1,851 | https://www.mspb.gov/decisions/nonprecedential/Crenshaw_Andrala_M_CH-844E-18-0316-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDRALA M. CRENSHAW,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-18-0316-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin A. Graham , Esquire, Liberty, Missouri, 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 Office of Personnel Management’s (OPM) dismissal of her
application for disability retirement benefits as untimely filed. On petition for
review, the appellant merely restates the arguments she raised in her close of
record brief, including that OPM should be estopped from denying her 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).
for disability retirement benefits because it provided her with incorrect
information about her employment status, or alternatively, that her various
medical conditions prevented her from meeting the 1-year statutory filing
deadline. 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
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
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.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 | Crenshaw_Andrala_M_CH-844E-18-0316-I-1__Final_Order.pdf | 2024-04-08 | ANDRALA M. CRENSHAW v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-18-0316-I-1, April 8, 2024 | CH-844E-18-0316-I-1 | NP |
1,852 | https://www.mspb.gov/decisions/nonprecedential/Turner_GregoryAT-0353-17-0732-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY TURNER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0353-17-0732-I-1
DATE: April 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
G
regory Turner , Memphis, Tennessee, pro se.
Cynthia R. Allen , Memphis, Tennessee, 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 restoration 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).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has filed several restoration appeals related to a compensable
injury he suffered in 2006. In one, from 2010, an administrative judge found that
the agency violated the appellant’s restoration rights as a partially recovered
employee. Turner v. U.S. Postal Service , MSPB Docket No. AT-0353-10-0960-
I-1 (0960 appeal), Initial Appeal File, Tab 39, Initial Decision. After the decision
became final in the 0960 appeal, the appellant filed a petition for enforcement.
Turner v. U.S. Postal Service , MSPB Docket No. AT-0353-10-0960-C-1,
Compliance File (0960 CF), Tab 1. The administrative judge denied his petition
for enforcement but docketed another appeal because the appellant appeared to
present a separate restoration claim. 0960 CF, Tab 11, Compliance Initial
Decision; Turner v. U.S. Postal Service , MSPB Docket No. AT-0353-14-0838-I-1
(0838 appeal), Initial Appeal File (0838 IAF), Tab 1. In the 0838 appeal, the
appellant alleged that, in September 2013, the agency improperly reduced the
hours of his modified assignment, but the administrative judge dismissed that
appeal for lack of jurisdiction. 0838 IAF, Tab 13, Initial Decision. After the
appellant filed a petition for review, the Board vacated the initial decision and
remanded for further adjudication. Turner v. U.S. Postal Service , MSPB Docket
No. AT-0353-14-0838-I-1, Remand Order (Sept. 28, 2015). On remand, the
administrative judge dismissed the case for failure to prosecute. Turner v. U.S.
Postal Service, MSPB Docket No. AT-0353-14-0838-B-1, Tab 16, Remand Initial
Decision.
During the adjudication of his 0838 appeal, the appellant filed another
appeal, pertaining to an alleged denial of restoration in December 2014. Turner
v. U.S. Postal Service , MSPB Docket No. AT-0752-15-0199-I-1 (0199 appeal),
Initial Appeal File (0199 IAF), Tab 1. The administrative judge similarly
dismissed the 0199 appeal for failure to prosecute. 0199 IAF, Tab 32, Initial
Decision. After the appellant filed identical petitions for review of the
0838 appeal and 0199 appeal, the Board joined those appeals and affirmed the2
administrative judge’s dismissals. Turner v. U.S. Postal Service , 123 M.S.P.R.
640 (2016), aff’d, 681 F. App’x 934 (Fed. Cir. 2017).
The appellant filed another restoration appeal in September 2016,
pertaining to an alleged denial of restoration the month before. Turner v. U.S.
Postal Service, MSPB Docket No. AT-0353-16-0826-I-1 (0826 appeal), Initial
Appeal File (0826 IAF), Tab 1. The administrative judge dismissed the
0826 appeal, without a hearing, for lack of jurisdiction. 0826 IAF, Tab 10, Initial
Decision. The appellant filed a petition for review in the 0826 appeal, which we
have addressed in a separate order. Turner v. U.S. Postal Service , MSPB Docket
No. AT-0353-16-0826-I-1, Petition for Review File, Tab 1.
While the appellant’s petition for review was pending in the 0826 appeal,
he filed the instant appeal, alleging that the agency again denied him restoration.
Turner v. U.S. Postal Service , MSPB Docket No. AT-0353-17-0732-I-1
(0732 appeal), Initial Appeal File (0732 IAF), Tab 1, Tab 9 at 8. The
administrative judge presiding over this 0732 appeal also dismissed this case for
lack of jurisdiction, without holding the requested hearing. 0732 IAF, Tab 12,
Initial Decision (0732 ID). The appellant has filed a petition for review. Turner
v. U.S. Postal Service , MSPB Docket No. AT-0353-17-0732-I-1, Petition for
Review (0732 PFR) File, Tab 1. The agency has filed a response, and the
appellant has replied. 0732 PFR File, Tabs 3-4.
To establish Board jurisdiction over a restoration claim as a partially
recovered employee, an appellant must make nonfrivolous allegations that: (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 (4) the
denial was arbitrary and capricious. Cronin v. U.S. Postal Service , 2022 MSPB
13, ¶ 12. The agency does not appear to dispute that the first two prongs of the
appellant’s jurisdictional burden are satisfied in the case before us. 0732 IAF,3
Tab 7 at 6-7. Therefore, this decision will focus on the third and fourth prongs of
that burden.
In June 2014, the appellant underwent an independent medical evaluation
with an orthopedist. That physician concluded that, because of his compensable
injury, the appellant was permanently limited to working 6 hours per day;
bending and stooping 1 hour per day; and pushing, pulling, and lifting no more
than 25 pounds, for 1 hour per day. 0199 IAF, Tab 8 at 22; 0826 IAF, Tab 9
at 14-17. In November 2014, the Office of Workers’ Compensation Programs
(OWCP) notified the appellant that it was terminating his wage compensation for
refusing suitable work.2 0826 IAF, Tab 5 at 82-84. In doing so, the OWCP
concluded that an offer of modified assignment from July 2014 was consistent
with the aforementioned medical evaluation and recommended limitations.3 Id.
Soon after the OWCP notified the appellant that it was terminating his
wage compensation for refusing suitable work, the appellant seems to have
accepted a modified assignment, at least for a brief period. 0826 IAF, Tab 5
at 81. However, that offer did not include the 25-pound weight restriction, and so
the appellant filed a grievance. Id.; 0732 IAF, Tab 9 at 15-19. Ultimately, the
grievance was resolved in the appellant’s favor, concluding that the modified
position offered on November 26, 2014, was improper because it did not include
the 25-pound lifting, pushing, and pulling limitations. 0732 IAF, Tab 9 at 15-19.
In January 2015, the agency extended another offer of modified
assignment. 0826 IAF, Tab 6 at 19. The assignment required no more than
6 hours of work per day; bending and stooping 1 hour per day; and pushing,
2 The termination of OWCP benefits does not preclude an appellant from presenting a
valid restoration claim. See Artis v. U.S. Postal Service , 88 M.S.P.R. 309, ¶¶ 7, 9
(2001) (remanding for further adjudication to determine whether the appellant requested
restoration prior to her proposed removal for excessive absenteeism, including the
period after the termination of her OWCP benefits).
3 The OWCP notification described the suitable work as being offered on July 11, 2014.
0826 IAF, Tab 5 at 83. It appears that this is in reference to an offer of modified
assignment, which includes a signature from the appellant’s supervisor on July 11,
2014, but reflects July 12, 2014, as the date offered. 0199 IAF, Tab 8 at 21.4
pulling, and lifting no more than 25 pounds, for 1 hour per day. Id. That
January 2015 offer is consistent with the June 2014 medical evaluation, which the
OWCP relied on in rendering its earlier determination regarding the refusal of
suitable work. Compare 0826 IAF, Tab 6 at 19, with 0199 IAF, Tab 8 at 21; 0826
IAF, Tab 9 at 14-17. It also is consistent with the aforementioned grievance
decision. Compare 0826 IAF, Tab 6 at 19, with 0732 IAF, Tab 9 at 15-19.
Although the appellant declined the January 2015 offer, the agency explicitly
noted that the offer would remain available if he chose to return. 0826 IAF,
Tab 6 at 18.
Around the time of his initial pleading in this 0732 appeal, filed in
August 2017, the appellant contacted the agency about accepting its standing
offer of a limited-duty assignment, which dated back to January 2015. 0732 IAF,
Tab 1 at 3, Tab 9 at 24. As a result, while the 0732 appeal was pending, the
agency instructed the appellant to return to work on September 18, 2017.
0732 IAF, Tab 9 at 24. Although the appellant reportedly appeared, as instructed,
he did not accept the offered assignment. Id. at 8.
The administrative judge dismissed this 0732 appeal, finding that the
appellant failed to nonfrivolously allege that the agency denied his request for
restoration. 0732 ID at 3-4. She explained that the agency had, in fact, offered
him a modified position that was both consistent with his medical documentation
and previously approved by the OWCP. Id. at 2-4; see New v. Department of
Veterans Affairs , 142 F.3d 1259, 1264 (Fed. Cir. 1998) (recognizing that
decisions on the suitability of an offered position are within the exclusive domain
of the OWCP, and it is that agency, not the employing agency and not the Board,
which possesses the requisite expertise to evaluate whether a position is suitable
in light of that employee’s particular medical condition). For the reasons that
follow, we disagree with the administrative judge’s conclusion and remand the
matter for further adjudication.5
Partially recovered employees may not appeal an improper restoration to
the Board; they may only appeal to the Board for a determination of whether the
agency acted arbitrarily and capriciously in denying restoration. Jones v. U.S.
Postal Service, 86 M.S.P.R. 464, ¶ 5 (2000). Nevertheless, under appropriate
circumstances, a restoration may be deemed so unreasonable as to amount to a
denial of restoration within the Board’s jurisdiction. Id. To make a nonfrivolous
showing of Board jurisdiction over an appeal on that basis, an appellant must
present specific, independent evidence corroborating his allegations. Id.
As detailed above, based upon the combined records from the appellant’s
various appeals, it appears that the OWCP found an offer suitable when its
restrictions included 1 hour of bending or stooping and 1 hour of pushing,
pulling, or lifting 25 pounds. Supra p. 4. While the agency’s standing offer from
January 2015 was consistent with that OWCP finding, the record suggests that the
agency amended the offer when the appellant actually attempted to return, in
September 2017. The record includes a September 2017 offer of modified
assignment, describing physical requirements of 4 hours of bending or stooping,
in addition to 4 hours of lifting, pushing, and pulling up to 70 pounds. 0732 IAF,
Tab 9 at 25. Accordingly, the records before us include evidence suggesting that
the agency’s job offer included physical requirements that exceeded the only
modified position the OWCP found suitable.4 See Ballesteros v. U.S. Postal
Service, 88 M.S.P.R. 428, ¶¶ 8-9 (2001) (recognizing that, absent of an OWCP
suitability determination, the Board is free to consider the reasonableness of an
agency’s job offer to determine if it amounted to an effective denial of
restoration). Under these specific circumstances, we find that the appellant met
his jurisdictional burden. The appellant has presented specific independent
4 It appears that the administrative judge relied on the evidence that had been submitted
in the 0732 appeal, including OWCP Form CA-17, Duty Status Reports, without the
benefit of evidence from the 0199 appeal or 0826 appeal, which more clearly shows
what modified offer the OWCP found suitable. Compare 0732 ID at 4 (referencing
0732 IAF, Tab 9 at 22-23), with supra p. 4. 6
evidence suggesting that the agency offered him a modified position that far
exceeded permanent limitations caused by a compensable injury.
On remand, the administrative judge should address the agency’s
September 2017 offer of modified assignment. The administrative judge should
afford the appellant his requested hearing and address the merits of this claim.
0732 IAF, Tab 1 at 2.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Turner_GregoryAT-0353-17-0732-I-1_Remand_Order.pdf | 2024-04-08 | GREGORY TURNER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0353-17-0732-I-1, April 8, 2024 | AT-0353-17-0732-I-1 | NP |
1,853 | https://www.mspb.gov/decisions/nonprecedential/Turner_GregoryAT-0353-16-0826-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY TURNER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0353-16-0826-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
G
regory Turner , Memphis, Tennessee, pro se.
Cynthia R. Allen , Memphis, Tennessee, 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 restoration 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
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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b). We FORWARD the appellant’s new restoration claim to the
Atlanta Regional Office for docketing as a separate appeal.
The appellant has filed several restoration appeals related to a compensable
injury he suffered in 2006. In one, from 2010, an administrative judge found that
the agency violated the appellant’s restoration rights as a partially recovered
employee. Turner v. U.S. Postal Service , MSPB Docket No. AT-0353-10-0960-
I-1 (0960 appeal), Initial Appeal File, Tab 39, Initial Decision. After the decision
became final in the 0960 appeal, the appellant filed a petition for enforcement.
Turner v. U.S. Postal Service , MSPB Docket No. AT-0353-10-0960-C-1,
Compliance File (0960 CF), Tab 1. The administrative judge denied his petition
for enforcement but docketed another appeal because the appellant appeared to
present a separate restoration claim. 0960 CF, Tab 11, Compliance Initial
Decision; Turner v. U.S. Postal Service , MSPB Docket No. AT-0353-14-0838-I-1
(0838 appeal), Initial Appeal File (0838 IAF), Tab 1. In the 0838 appeal, the
appellant alleged that, in September 2013, the agency improperly reduced the
hours of his modified assignment, but the administrative judge dismissed that
appeal for lack of jurisdiction. 0838 IAF, Tab 13, Initial Decision. After the
appellant filed a petition for review, the Board vacated the initial decision and
remanded for further adjudication. Turner v. U.S. Postal Service , MSPB Docket
No. AT-0353-14-0838-I-1, Remand Order (Sept. 28, 2015). On remand, the2
administrative judge dismissed the case for failure to prosecute. Turner v. U.S.
Postal Service, MSPB Docket No. AT-0353-14-0838-B-1, Tab 16, Remand Initial
Decision.
During the adjudication of his 0838 appeal, the appellant filed another
appeal, pertaining to an alleged denial of restoration in December 2014.
Turner v. U.S. Postal Service , MSPB Docket No. AT-0752-15-0199-I-1
(0199 appeal), Initial Appeal File (0199 IAF), Tab 1. The administrative judge
similarly dismissed the 0199 appeal for failure to prosecute. 0199 IAF, Tab 32,
Initial Decision. After the appellant filed identical petitions for review of the
0838 appeal and 0199 appeal, the Board joined those appeals and affirmed the
administrative judge’s dismissals. Turner v. U.S. Postal Service , 123 M.S.P.R.
640 (2016), aff’d, 681 F. App’x 934 (Fed. Cir. 2017).
The appellant filed the instant restoration appeal in September 2016.
Turner v. U.S. Postal Service , MSPB Docket No. AT-0353-16-0826-I-1
(0826 appeal), Initial Appeal File (0826 IAF), Tab 1. He attached an
August 2016 letter from the agency, in which the agency requested he attend a
meeting and bring updated medical documentation reflecting his restrictions. Id.
at 7. The agency filed a motion to dismiss for lack of jurisdiction, with argument
and evidence that the appellant had not returned to work or attempted to return to
work since January 2015, when he last refused a limited-duty assignment.
0826 IAF, Tab 5 at 4-11. The agency also submitted a sworn declaration
indicating that the appellant did not attend the meeting scheduled in the
August 2016 letter. Id. at 14-15.
The administrative judge dismissed the 0826 appeal, without a hearing, for
lack of jurisdiction. 0826 IAF, Tab 10, Initial Decision (0826 ID). The appellant
has filed a petition for review. Turner v. U.S. Postal Service , MSPB Docket
No. AT-0353-16-0826-I-1, Petition for Review (0826 PFR) File, Tab 1.3
The agency has filed a response, and the appellant has replied. 0826 PFR File,
Tabs 3-4.2
To establish Board jurisdiction over a restoration claim as a partially
recovered employee, an appellant must make nonfrivolous allegations that: (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 (4) the
denial was arbitrary and capricious. Cronin v. U.S. Postal Service , 2022 MSPB
13, ¶ 12. The agency does not appear to dispute that the first two prongs of the
appellant’s jurisdictional burden are satisfied in the case before us. 0826 IAF,
Tab 5 at 10-11. Therefore, this decision will focus on the third and fourth prongs
of that burden.
In June 2014, the appellant underwent an independent medical evaluation
with an orthopedist. That physician concluded that, because of his compensable
injury, the appellant was permanently limited to working 6 hours per day;
bending and stooping 1 hour per day; and pushing, pulling, and lifting no more
than 25 pounds, for 1 hour per day. 0199 IAF, Tab 8 at 22; 0826 IAF, Tab 9
at 14-17. In November 2014, the Office of Workers’ Compensation Programs
(OWCP) notified the appellant that it was terminating his wage compensation for
refusing suitable work.3 0826 IAF, Tab 5 at 82-84. In doing so, the OWCP
2 While the appellant’s petition for review was pending in this 0826 appeal, he filed
another appeal, alleging that the agency again denied him restoration. Turner v. U.S.
Postal Service, MSPB Docket No. AT-0353-17-0732-I-1 (0732 appeal), Initial Appeal
File (0732 IAF), Tab 1, Tab 9 at 8. The administrative judge presiding over the
0732 appeal also dismissed the case for lack of jurisdiction, without holding the
requested hearing. 0732 IAF, Tab 12, Initial Decision. The appellant filed a petition
for review in the 0732 appeal, which we will address in a separate order. Turner v. U.S.
Postal Service, MSPB Docket No. AT-0353-17-0732-I-1, Petition for Review File,
Tab 1.
3 The termination of OWCP benefits does not preclude an appellant from presenting a
valid restoration claim. See Artis v. U.S. Postal Service , 88 M.S.P.R. 309, ¶¶ 7, 9
(2001) (remanding for further adjudication to determine whether the appellant requested4
concluded that an offer of modified assignment from July 2014 was consistent
with the aforementioned medical evaluation and recommended limitations.4 Id.
Soon after the OWCP notified the appellant that it was terminating his
wage compensation for refusing suitable work, the appellant seems to have
accepted a modified assignment, at least for a brief period. 0826 IAF, Tab 5
at 81. However, that offer did not include the 25-pound weight restriction, and so
the appellant filed a grievance. Id.; Turner v. U.S. Postal Service , MSPB Docket
No. AT-0353-17-0732-I-1, Initial Appeal File (0732 IAF), Tab 9 at 15-19.
Ultimately, the grievance was resolved in the appellant’s favor, concluding that
the modified position offered on November 26, 2014, was improper because it did
not include the 25-pound lifting, pushing, and pulling limitations. 0732 IAF,
Tab 9 at 15-19.
In January 2015, the agency extended another offer of modified
assignment. 0826 IAF, Tab 6 at 19. The assignment required no more than
6 hours of work per day; bending and stooping 1 hour per day; and pushing,
pulling, and lifting no more than 25 pounds, for 1 hour per day. Id. That
January 2015 offer is consistent with the June 2014 medical evaluation, which the
OWCP relied on in rendering its earlier determination regarding the refusal of
suitable work. Compare 0826 IAF, Tab 6 at 19, with 0199 IAF, Tab 8 at 21; 0826
IAF, Tab 9 at 14-17. It also is consistent with the aforementioned grievance
decision. Compare 0826 IAF, Tab 6 at 19, with 0732 IAF, Tab 9 at 15-19.
Although the appellant declined the January 2015 offer, the agency explicitly
noted that the offer would remain available if he chose to return. 0826 IAF,
Tab 6 at 18.
restoration prior to her proposed removal for excessive absenteeism, including the
period after the termination of her OWCP benefits).
4 The OWCP notification described the suitable work as being offered on July 11, 2014.
0826 IAF, Tab 5 at 83. It appears that this is in reference to an offer of
modified assignment, which includes a signature from the appellant’s supervisor on
July 11, 2014, but reflects July 12, 2014, as the date offered. 0199 IAF, Tab 8 at 21.5
In the 0826 appeal currently before us, the agency argued that the appellant
failed to nonfrivolously allege that he requested or was denied restoration.
0826 IAF, Tab 5 at 10-11. For the reasons described in the initial decision for the
0826 appeal, we agree. 0826 ID at 2-4. The appellant filed the 0826 appeal after
the agency sent him a letter in August 2016, requesting his attendance at a
meeting concerning restoration. 0826 IAF, Tab 1 at 7. However, the record
suggests that the agency’s January 2015 offer of modified assignment was still
available. The appellant does not appear to argue otherwise, and there is no basis
for construing the August 2016 letter as a denial of restoration.
On review, the appellant has presented no basis for disturbing the initial
decision in the 0826 appeal. However, the appellant’s petition contains two
letters to the agency, dated November 20 and 26, 2016, respectively. 0826 PFR
File, Tab 1 at 5-6. In those letters, which predate the initial decision by nearly
3 months but were not submitted below, the appellant asserted that he was ill the
day of his scheduled meeting with the agency, and he requested rescheduling to
consider any available work. Compare 0826 ID, with 0826 PFR File, Tab 1
at 5-6. The appellant argues that the agency failed to respond to his letters, and
that its failure places the 0826 appeal within the Board’s jurisdiction. 0826 PFR
File, Tab 1 at 4.
Although the November 2016 letters appear immaterial to the period
addressed in this 0826 appeal, they do warrant consideration as a subsequent
restoration claim. The agency has conceded as much in its response, without
explaining whether or why it failed to answer the appellant’s letters. 0826 PFR
File, Tab 3 at 5-6.
For these reasons, we affirm the initial decision, dismissing this
0826 appeal for lack of jurisdiction. We forward the appellant’s November 2016
letters to the regional office for docketing as a separate restoration appeal.
The administrative judge assigned to this newly docketed restoration appeal6
should provide the appellant with an opportunity to establish timeliness5 and
jurisdiction, specific to the period surrounding his November 2016 letters to the
agency.6
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.
5 The appellant’s belated submission of the November 2016 letters, in February 2017,
along with his extensive history of filing restoration appeals, calls into question whether
he was diligent in raising this matter. See Sanchez v. U.S. Postal Service , 114 M.S.P.R.
345, ¶¶ 22-24 (2010) (discussing the appellant’s timeliness burden in a restoration case
when it was not apparent the agency notified her of her appeal rights); 5 C.F.R. §
353.104 (requiring an agency denying restoration to provide notice of appeal rights, but
further requiring an employee to “exercise due diligence in ascertaining” those rights
regardless of such notice).
6 The regional office may wish to join this appeal with the appellant’s 0732 appeal,
which we are remanding in a separate order.
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.7
(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 you8
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: 9
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. 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 | Turner_GregoryAT-0353-16-0826-I-1_Final_Order.pdf | 2024-04-08 | GREGORY TURNER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0353-16-0826-I-1, April 8, 2024 | AT-0353-16-0826-I-1 | NP |
1,854 | https://www.mspb.gov/decisions/nonprecedential/Menchaca_Jose_DA-3443-22-0285-I-1_DA-0353-22-0404-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE MENCHACA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBERS
DA-3443-22-0285-I-1
DA-0353-22-0404-I-1
DATE: April 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ose Menchaca , San Antonio, Texas, pro se.
Theresa M. Gegen , Esquire, St. Louis, 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 decisions, which
dismissed these appeals for lack of jurisdiction . We JOIN the appeals for
processing pursuant to 5 C.F.R. § 1201.36.2 On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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. See Tarr ,
reasserts that he was constructively suspended or placed on enforced leave; the
administrative judge improperly focused on his challenge to the Office of
Workers’ Compensation Programs decision denying his compensation request; he
is a Vietnam veteran and was denied due process; he was subjected to retaliation
and a hostile work environment; the agency failed to accommodate his medical
restrictions and violated the Rehabilitation Act of 1973; he was improperly
denied a limited duty or light duty assignment as a reasonable accommodation;
and he was improperly denied the ability to conduct discovery and his requested
hearing. Generally, we grant petitions such as these 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). As discussed
below, we modify the initial decision to find that some of the claims the appellant
raised in his second Board appeal should have been dismissed in the interest of
adjudicatory efficiency instead of on the grounds of collateral estoppel. After
fully considering the filings in these appeals, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petitions for
review.
Regarding the appellant’s argument in his second Board appeal alleging
that he was denied restoration or constructively suspended based on his absences
during the period from March 4 through May 17, 2022, the administrative judge
in that appeal dismissed these claims on the basis that the appellant was
115 M.S.P.R. 216, ¶ 9.2
collaterally estopped from relitigating these issues because they were raised in the
prior appeal, concluding that each of the four criteria set forth in McNeil v.
Department of Defense , 100 M.S.P.R. 146 (2005) had been met. Menchaca v.
U.S. Postal Service , MSPB Docket No. DA-0353-22-0404-I-1, Initial Appeal File,
Tab 14, Initial Decision at 3-4.
When an appellant files an appeal that raises claims raised in an earlier
appeal after the initial decision in the earlier appeal has been issued, but before
the full Board has acted on the appellant’s petition for review, it is appropriate to
dismiss the subsequent appeal on the grounds of adjudicatory efficiency.
Zgonc v. Department of Defense , 103 M.S.P.R. 666, ¶ 6 (2006), aff’d,
230 F. App’x 967 (Fed. Cir. 2007). In other words, the Board will dismiss on the
basis of adjudicatory efficiency when an identity of issues exists and the
controlling issues in the appeal will be determined in a prior appeal. Bean v. U.S.
Postal Service, 120 M.S.P.R. 447, ¶ 5 (2013).
By contrast, collateral estoppel, or issue preclusion, 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 on the issue in the prior
action was necessary to the resulting judgment, and (4) the party against whom
issue preclusion is sought had a full and fair opportunity to litigate the issue in
the prior action, either as a party to the earlier action or as one whose interests
were otherwise fully represented in that action. Kavaliauskas v. Department of
the Treasury, 120 M.S.P.R. 509, ¶ 5 (2014); McNeil, 100 M.S.P.R. 146, ¶ 15.
Collateral estoppel, however, is only appropriate when there is a final judgment
in the previous litigation. Zgonc, 103 M.S.P.R. 666, ¶ 6.
At the time the second initial decision was issued, the appellant’s prior
appeal was pending before the Board on petition for review, and therefore,
dismissal of the appellant’s claim that he was denied restoration or constructively
suspended during the period from March 4 through May 17, 2022, on the basis of
collateral estoppel was inappropriate. Id. This claim should have instead been3
dismissed on the grounds of adjudicatory efficiency. Id. Accordingly, we
conclude that the administrative judge erred by applying the doctrine of collateral
estoppel to dismiss this claim raised in the subsequent appeal. Nevertheless,
because we have joined the two appeals and ultimately agree with the
administrative judge’s conclusion in the first appeal that the appellant was not
denied restoration or constructively suspended during the relevant time period
and have now issued the instant final decision on the issue, we conclude that the
administrative judge’s error in dismissing the claim on the basis of collateral
estoppel as opposed to on the grounds of adjudicatory efficiency did not prejudice
the appellant’s substantive rights. 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). Therefore, we DENY the petitions for review. Except as
expressly MODIFIED to find that some of the claims the appellant raised in the
second Board appeal should have been dismissed in the interest of adjudicatory
efficiency instead of on the grounds of collateral estoppel , we AFFIRM the joined
initial decisions.
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
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
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Menchaca_Jose_DA-3443-22-0285-I-1_DA-0353-22-0404-I-1_Final_Order.pdf | 2024-04-08 | JOSE MENCHACA v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0353-22-0404-I-1, April 8, 2024 | DA-0353-22-0404-I-1 | NP |
1,855 | https://www.mspb.gov/decisions/nonprecedential/Parent_Kenneth_M_PH-0752-18-0403-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH M. PARENT, JR.,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
PH-0752-18-0403-I-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth M. Parent, Jr. , Crab Orchard, West Virginia, pro se.
Cynthia R. Allen , Esquire, Memphis, Tennessee, 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 improper conduct. On petition for review, the appellant
argues that the administrative judge abused his discretion by disallowing
witnesses, and was biased against him.2 He contends that the Board is generally
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 In relevant part, the appellant asserts in his petition for review that the administrative
judge abused his discretion in denying “[m]ajor witnesses, that had in depth knowledge,
2
not fair to veterans. He also contends that the agency’s evidence was fabricated,
asserts that it was the result of a conspiracy, argues that the agency exploited his
duress and nervousness during the proceedings, and reasserts that the agency
changed deciding officials three times before deciding to remove him. 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).
and could provide key information to support [his] claims.” Petition for Review File,
Tab 1 at 3. The administrative judge approved two of the appellant’s witnesses,
including the appellant himself, and denied one witness as irrelevant, four as
cumulative, and five as premature because their anticipated testimony involved
damages. Initial Appeal File, Tab 18 at 3-4. To the extent the administrative judge
erred in denying one witness as irrelevant, the record does not reflect that the appellant
lodged an objection to the administrative judge’s order denying the witness, which
required any such objections to be filed by October 19, 2018. Id. The appellant’s
failure to timely object to rulings on witnesses precludes his doing so on petition for
review. Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988).
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 discrimination or
retaliation was a “but-for” cause of the agency’s decisions. See Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 29-33.
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 any
5
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
6
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. | Parent_Kenneth_M_PH-0752-18-0403-I-1__Final_Order.pdf | 2024-04-05 | null | PH-0752-18-0403-I-1 | NP |
1,856 | https://www.mspb.gov/decisions/nonprecedential/Stanley_JocelynPH-0752-18-0431-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOCELYN STANLEY,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-0752-18-0431-I-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas J. Gagliardo , Baltimore, Maryland, for the appellant.
Jessica Craig , 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
dismissed her removal appeal as untimely filed without good cause shown or,
alternatively, for lack of jurisdiction. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that we need not reach the jurisdictional issue because the
appeal was untimely, we AFFIRM the initial decision.
BACKGROUND
The agency issued a January 23, 2018 notice in which it proposed removing
the appellant from her Benefit Authorizer position for absence without leave
(AWOL). Initial Appeal File (IAF), Tab 7 at 18-29. The parties subsequently
entered into a “Last Chance Agreement” (LCA). Id. at 31-35. Pursuant to that
agreement, the agency agreed to hold the removal decision in abeyance for
24 months. Id. at 32. In exchange, the appellant agreed to improve her overall
conduct and to comply with agency procedures for requesting and obtaining
approved leave. Id. at 32-33. She further indicated she understood that any
further misconduct, as determined by management, would result in her removal.
Id. at 32. The appellant also explicitly waived her appeal rights. Id. at 32, 34.
On July 9, 2018, the agency notified the appellant that she had been AWOL on
18 different occasions, violating the LCA, and it was implementing her removal
effective immediately. IAF, Tab 13 at 4-8.
The appellant filed an appeal in which she argued that the agency could not
prove the misconduct which allegedly violated the LCA. IAF, Tab 1 at 4.2
The administrative judge issued an order setting forth the appellant’s burden to
establish jurisdiction over an appeal involving an LCA waiving future appeal
rights. IAF, Tab 8 at 1-2. In response, the appellant asserted that 5 of the
18 instances of AWOL were not a basis for discipline and could not constitute
violations of the LCA. IAF, Tab 10 at 5. As to the remaining allegations, she
argued that the agency was required to provide proof of the alleged violations and
had not done so. Id.
The administrative judge also issued an order setting forth the appellant’s
burden regarding the timeliness of the appeal. IAF, Tab 9 at 1-3. In response,
the appellant asserted that, as a result of a presidential executive order, her union
representative had been deprived of office space, telephones, and bulletin boards,
which the agency had previously supplied. IAF, Tab 12 at 4.
Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction or as untimely filed without good cause shown.
IAF, Tab 14, Initial Decision (ID) at 1, 5. Specifically, the administrative judge
found that the appeal was untimely filed by 5 days and the appellant’s argument
that the untimeliness of her appeal was caused by disruption of union activities
following an executive order did not constitute good cause. ID at 3-4. She also
found that the appellant had only disputed 5 of the 18 instances of AWOL but did
not dispute that she was AWOL on the other 13 instances. ID at 4-5.
The administrative judge found that this assertion was insufficient to show that
she complied with the LCA; thus, the Board lacked jurisdiction. ID at 1, 4-5.
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has responded to the petition; however, we have
not considered its response because it was untimely filed without good cause
shown.2 PFR File, Tab 4.
2 The agency’s response to the appellant’s petition for review was due on or before
February 11, 2019. PFR File, Tab 2 at 1, Tab 5 at 1; see 5 C.F.R. § 1201.114(e)
(requiring responses to petitions for review be filed within 25 days of service of the
petition for review). The agency did not file its response until February 28, 2019.3
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant challenges the administrative judge’s findings on
both the timeliness and jurisdictional issues. PFR File, Tab 1 at 2-3.
She reiterates her argument that she demonstrated good cause for the untimely
filing of her appeal due to the presidential executive order and that the agency did
not submit proof that she had violated the LCA. Id.
We affirm the administrative judge’s finding that the appeal was untimely filed.
An appeal must be filed within 30 days after the effective date of the action
being appealed, or 30 days after the appellant’s receipt of the agency’s decision,
whichever is later. 5 C.F.R. § 1201.22(b)(1). The appellant bears the burden of
proving by preponderant evidence that she timely filed her appeal, or that there
was a good reason for the delay. 5 C.F.R. §§ 1201.22(c), 1201.56(b)(2)(i)(B).
Here, the appellant received the removal decision on July 9, 2018, and her
removal was effective that same day. IAF, Tab 13 at 4-8. Thus, to be timely, the
appellant was required to file her appeal by August 8, 2018. However, her appeal
was filed on August 13, 2018, 5 days late. IAF, Tab 1.
To establish good cause for an untimely appeal, 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).
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 her
PFR File, Tab 4. Although the Office of the Clerk of the Board offered the agency the
opportunity to show good cause for the untimely filing, it has not responded. PFR File,
Tab 5. Under these circumstances, we find that the agency has failed to demonstrate
good cause for the untimeliness of its response. See 5 C.F.R. § 1201.114(g) (setting
forth the requirements for a party to show good cause for its untimely filing). 4
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).
On review, the appellant reasserts her argument that her untimely appeal
was attributable to the presidential executive order allegedly impairing her
communications with her union representative. PFR File, Tab 1 at 2. However,
as the administrative judge correctly found, an appellant is responsible for the
actions of her chosen representative. Sofio v. Internal Revenue Service ,
7 M.S.P.R. 667, 670 (1981). Moreover, the administrative judge found that the
appellant did not demonstrate that she exercised due diligence or ordinary
prudence under the circumstances and that any impact the presidential order may
have had did not justify the appellant’s inaction during the entire appeal period.
ID at 3-4. We agree.
In making this determination, we have considered that it does not appear
that the agency notified the appellant of any appeal rights that she might have of
her removal. IAF, Tab 13 at 4-8. The Board ordinarily will excuse untimeliness
in filing an appeal if an agency should have given notice of a right of appeal but
did not, so long as the appellant “acted promptly and within the allowable time
limits once he was aware of the basis of his claim.” Gordy v. Merit Systems
Protection Board , 736 F.2d 1505, 1508 (Fed. Cir. 1984). In Clark v. U.S. Postal
Service, 989 F.2d 1164, 1169-70 (Fed. Cir. 1993), the court held that an agency is
required to provide such notice to an employee being removed pursuant to an
LCA that includes a waiver of Board appeal rights only “if and when the
employee puts the agency on notice that he or she contests the agency’s assertion
of a breach of the agreement.” In this case, we find no indication in the record
that the appellant put the agency on notice that she was contesting the agency’s
assertion of a breach of the LCA before filing the instant appeal. Thus, the
agency had no corresponding obligation to give her notice of Board appeal rights,
and its failure to do so does not excuse the untimely filing of her appeal.
Id. at 1170. 5
The initial decision states that the appeal is alternatively being dismissed
for lack of jurisdiction. ID at 1. Because we agree with the administrative
judge’s finding that the appeal was untimely, we do not reach the jurisdictional
issue. See Popham v. U.S. Postal Service , 50 M.S.P.R. 193, 196-97 (1991)
(finding that the Board need not dismiss an appeal for lack of jurisdiction if the
record shows that the appeal should be dismissed as untimely).
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
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, 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,7
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 8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Stanley_JocelynPH-0752-18-0431-I-1_Final_Order.pdf | 2024-04-05 | JOCELYN STANLEY v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-0752-18-0431-I-1, April 5, 2024 | PH-0752-18-0431-I-1 | NP |
1,857 | https://www.mspb.gov/decisions/nonprecedential/Aiello_Ronald_F_AT-0843-19-0110-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD F. AIELLO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0843-19-0110-I-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald F. Aiello , Jefferson, Georgia, pro se.
Tanisha E. 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 October 24, 2018 reconsideration decision issued by the Office of
Personnel Management (OPM) denying his request to make a survivor annuity
election for his current spouse, whom he married after he retired. On petition for
review, the appellant reargues that he is entitled to a waiver of the 2 -year
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).
deadline to elect a survivor annuity because OPM failed to timely inform him
that, in order for his spouse to continue to receive health benefits after his death,
he must have elected a survivor annuity and, had OPM done so, he would have
made a timely election. 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
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
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. 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 | Aiello_Ronald_F_AT-0843-19-0110-I-1__Final_Order.pdf | 2024-04-05 | RONALD F. AIELLO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0843-19-0110-I-1, April 5, 2024 | AT-0843-19-0110-I-1 | NP |
1,858 | https://www.mspb.gov/decisions/nonprecedential/Cross_Sharon_L_NY-844E-12-0269-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON CROSS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-844E-12-0269-B-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sharon L. Cross , Cooperstown, New York, pro se.
Linnette Scott , 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 remand initial decision,
which affirmed the Office of Personnel Management’s decision denying her
disability retirement application under the Federal Employees’ Retirement
System. On petition for review, the appellant argues, among other things, that the
administrative judge failed to acknowledge the fact that she was on Family 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).
Medical Leave Act of 1993 leave before she filed her disability retirement
application (which she contends was evidence of bias), that the administrative
judge improperly sanctioned her, and that legal representation is required in some
cases of mental incompetence. Petition for Review File, Tab 1. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the remand 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. 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 | Cross_Sharon_L_NY-844E-12-0269-B-1__Final_Order.pdf | 2024-04-05 | SHARON CROSS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-844E-12-0269-B-1, April 5, 2024 | NY-844E-12-0269-B-1 | NP |
1,859 | https://www.mspb.gov/decisions/nonprecedential/Trueblood_AmandaDE-0432-21-0099-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMANDA TRUEBLOOD,
Appellant,
v.
NATIONAL CREDIT UNION
ADMINISTRATION,
Agency.DOCKET NUMBER
DE-0432-21-0099-I-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amanda Trueblood , Parker, Colorado, pro se.
Gerard Poliquin , Esquire, Austin Furman , and Jeffrey Zick , 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
affirmed the agency’s chapter 43 removal 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as MODIFIED to
clarify the legal standard applicable to the appellant’s claim of disability
discrimination based on the agency’s failure to provide her a reasonable
accommodation, we AFFIRM the initial decision.
BACKGROUND
Effective January 7, 2018, the agency reassigned the appellant from her
position as a CU-13 Credit Union Examiner to a position as a CU-13 Consumer
Access Analyst, the latter of which fell under the auspices of the agency’s Office
of Credit Union Resources and Expansion (CURE). Initial Appeal File (IAF),
Tab 14 at 266, Tab 35 at 223. The Consumer Access Analyst position required
that the appellant serve as a technical advisor on various complex issues. IAF,
Tab 35 at 223-25. Her duties included reviewing, analyzing, and recommending
“either approving or denying charter conversion requests from [F]ederal credit
unions and state-chartered credit unions.” Id. at 223. The appellant’s position
also required her to track her workload.2 Id. at 224.
2 As set forth in the initial decision, the appellant was expected to track the status of her
work assignments in the agency’s “GENISIS” database. IAF, Tab 61, Initial Decision
at 5. The GENISIS system, among other things, established standard timelines for each
type of work assignment. Id.; IAF, Tab 14 at 214-16.2
The appellant was rated as fully successful for the appraisal period ending
on September 30, 2018. IAF, Tab 14 at 263. However, on May 7, 2019,
following a progress review meeting, the appellant’s first-line supervisor
provided the appellant with a formal memorandum informing her that her
performance was substandard. Id. at 28-31. Specifically, the memorandum
informed the appellant that her performance was lacking in the following three
critical elements of her position: (1) Analysis, Decision Making, and Problem
Resolution; (2) Written Communication; and (3) Planning, Organizing, and
Coordinating. Id. at 28-31, 238-39, 242, 246. Approximately 4 months later, on
September 9, 2019, the agency notified the appellant that her performance was
unacceptable in two critical elements, i.e., (1) Customer Service and Teamwork
and (2) Planning, Organizing, and Coordinating, and it placed her on a 60-day
Performance Improvement Period (PIP). Id. at 19-26, 240, 246. On
November 15, 2019, the agency extended the PIP for 30 days, for a total of
90 days. Id. at 33. As a result, the PIP period ended on December 13, 2019. Id.
On March 27, 2020, the agency proposed to remove the appellant for
failure to perform acceptably in two critical elements, i.e., (1) Customer Service
and Teamwork and (2) Planning, Organizing, and Coordinating. Id. at 7-16.
After she responded to the proposed removal both orally and in writing, IAF,
Tab 12 at 68-135, Tab 13 at 5-12, by letter dated December 28, 2020, the agency
removed the appellant effective January 1, 2021, for failing to meet performance
standards in the critical element of Planning, Organizing, and Coordinating3 only,
IAF, Tab 12 at 55, 57-66. In the December 28, 2020 letter, the agency informed
the appellant that she had failed “to plan and prioritize [her] workload to ensure
assignments were processed within established timeframes; to identify and
manage resources required to complete assignments efficiently; and to respond
promptly to problems and complete work in a timely manner.” Id. at 59. The
3 This critical element contained the following expectations for an employee: “Manages
time and resources, achieves deadlines, recognizes and responds to changing priorities
and circumstances, and adheres to national and regional goals.” IAF, Tab 14 at 246.3
letter provided specific examples of the appellant’s shortcomings in this regard
and it discussed, among other things, the appellant’s failure to meet the GENISIS
timelines for various work assignments. Id. at 59-65; IAF, Tab 14 at 214-16.
The appellant appealed the agency’s removal action to the Board and
requested a hearing on the matter. IAF, Tab 1 at 2. On appeal, the appellant
raised the affirmative defense of disability discrimination based on the agency’s
failure to provide her with a reasonable accommodation. IAF, Tab 24 at 4,
Tab 30 at 4-8. To this end, she alleged that, in 2018, she had made a series of
accommodation requests with the agency based on her generalized anxiety
disorder disability.4 IAF, Tab 30 at 4-5. Specifically, she alleged that she had
requested the following accommodations, all of which the agency had improperly
denied: (1) reduced work hours, i.e., a 6-hour workday in lieu of an 8-hour
workday; (2) reassignment to a vacant Consumer Access Coordinator position
within CURE; (3) another leave of absence;5 (4) a new trainer; and (5) relief from
phone work.6 Id. at 6, 12-17.
Following a hearing conducted via Zoom for Government,
the administrative judge issued an initial decision affirming the agency’s removal
action. IAF, Tab 61, Initial Decision (ID) at 1, 30. In so doing, he concluded
that the agency proved its charge by substantial evidence. ID at 22-26.
Specifically, he found the following: (1) the agency proved that the appellant’s
performance was unacceptable prior to the PIP; (2) it was undisputed that the
4 The appellant acknowledged that she had also made a request regarding work -related
lodging accommodations due to her digestive food allergies; however, she clarified in a
prehearing filing that, for purposes of her affirmative defense, she was “limiting her
disability to that of [g]eneralized [a]nxiety [d]isorder.” IAF, Tab 30 at 6 n.2, n.4.
5 As set forth in the initial decision, the appellant had previously taken a leave of
absence approximately 2 months after her reassignment to the Consumer Access
Analyst position, i.e., from March 23 through May 8, 2018. IAF, Tab 61, Initial
Decision at 7.
6 The appellant also requested “[b]eing treated with respect” as an accommodation;
however, she did not raise any arguments related to this request before the
administrative judge. E.g., IAF, Tab 30 at 15.4
Office of Personnel Management (OPM) had approved the agency’s performance
appraisal system; (3) the agency communicated the relevant performance
standards and critical elements to the appellant; (4) the agency warned the
appellant of inadequacies with her performance; and (5) the agency offered the
appellant “counseling and an opportunity for improvement.”7 Id.
The administrative judge also concluded that the appellant had failed to prove her
claim of disability discrimination on the basis of the agency’s failure to
accommodate. ID at 26-30. In so concluding, he found that she had failed to
show that she is a qualified individual with a disability. ID at 28.
The appellant has filed a petition for review, the agency has filed a
response, and the appellant has submitted a reply thereto. Petition for Review
(PFR) File, Tabs 1, 3-4. In her petition and reply, the appellant argues that the
administrative judge erred in finding that the agency proved its charge and that
she failed to prove her failure to accommodate disability discrimination
affirmative defense. PFR File, Tab 1 at 4-21, Tab 4 at 4-11. She also raises a
claim of harmful procedural error. PFR File, Tab 1 at 20.
ANALYSIS
To defend an action under chapter 43, the agency must prove the following
by substantial evidence:8 (1) OPM approved its performance appraisal system
and any significant changes thereto; (2) the agency communicated to the appellant
the performance standards and critical elements of her position; (3) the
7 We equate the administrative judge’s conclusion that the agency offered the appellant
“counseling and an opportunity for improvement” with a finding that the agency showed
that it provided the appellant an adequate opportunity to demonstrate acceptable
performance. ID at 25; see Lee v. Department of Veterans Affairs , 2022 MSPB 11,
¶ 15. Additionally, although the administrative judge did not explicitly find that the
appellant’s performance standards were valid under 5 U.S.C. § 4302(c)(1) or that her
performance remained unacceptable, such findings were implicit in his analysis. ID
at 26-30; see Lee, 2022 MSPB 11, ¶ 15.
8 Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p).5
appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the
appellant’s performance during the appraisal period was unacceptable in one or
more critical elements; (5) the agency warned the appellant of the inadequacies in
her performance during the appraisal period and gave her an adequate opportunity
to demonstrate acceptable performance; and (6) after an adequate improvement
period, the appellant’s performance remained unacceptable in at least one critical
element. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15.
We discern no basis to disturb the administrative judge’s conclusion that the
agency proved its charge.
The appellant challenges the administrative judge’s conclusion that the
agency proved all of the elements of a chapter 43 action by substantial evidence.
PFR File, Tab 1 at 13-21. Specifically, she challenges the validity of her
performance standards under 5 U.S.C. § 4302(c)(1) by asserting the following:
(1) her performance standards were impermissibly vague; (2) the standards were
not objective; and (3) the standards were unattainable. Id. We disagree.
Performance standards must, to the maximum extent feasible, permit the
accurate appraisal of performance based on objective criteria related to the job in
question. 5 U.S.C. § 4302(c)(1); Towne v. Department of the Air Force ,
120 M.S.P.R. 239, ¶ 21 (2013). Standards must be reasonable, realistic,
attainable, and clearly stated in writing. Towne, 120 M.S.P.R. 239, ¶ 21.
Performance standards should be specific enough to provide an employee with a
firm benchmark toward which to aim her performance and must be sufficiently
precise so as to invoke general consensus as to their meaning and content. Id.
Performance standards are not valid if they do not set forth the minimum level of
performance that an employee must achieve to avoid removal for unacceptable
performance under chapter 43. Id. Whether a performance standard is valid,
however, is a case-specific inquiry. Jackson v. Department of Veterans Affairs ,
97 M.S.P.R. 13, ¶ 15 (2004). 6
The appellant’s performance standards were clearly stated.
The appellant contends that her performance standards were impermissibly
vague. PFR File, Tab 1 at 13. To this end, she challenges the GENISIS
timelines, asserting that they were “cryptic” and contained no “notes on use or
other instructions.”9 Id.; IAF, Tab 14 at 214-16. We find these assertions both
unclear and unavailing; indeed, if anything, the GENISIS timelines clarified the
appellant’s performance standards insofar as they provided her with specific
timeframes within which she was expected to complete various work tasks.
IAF, Tab 14 at 214-16, 246. In any event, we find that the agency also provided
clear guidance both in the appellant’s PIP letter and throughout the PIP period, to
include counseling, regarding what was expected of her. E.g., id. at 22-25; see
Towne, 120 M.S.P.R. 239, ¶ 23 (reasoning that any lack of specificity with the
appellant’s performance standards was cured by the agency’s provision of clear
guidance in the PIP letter and throughout the PIP, and concluding that the agency
showed that its performance standards were valid); see also Diprizio v.
Department of Transportation , 88 M.S.P.R. 73, ¶ 12 (2001) (concluding that the
agency provided context to the appellant’s performance standards during the PIP
by counseling him regarding his deficiencies and identifying the specific
problems that he needed to address in order to achieve a minimally acceptable
performance rating). Thus, we find unavailing the appellant’s assertions
regarding the vagueness of her performance standards.
The appellant’s performance standards were objective.
The appellant avers that her performance standards were not objective.
PFR File, Tab 1 at 13. Although her argument in this regard is unclear, it again
9 Relatedly, she argues, among other things, that the GENISIS timelines were “not an
officially promulgated regulation of the [a]gency,” were not discernably marked as
being an official agency document, and contained no “designation of an author.” PFR
File, Tab 1 at 13. 7
pertains to the GENISIS timelines.10 Id. Performance standards may be more or
less objective depending on the position; however, they must be sufficiently
specific to provide a “firm benchmark” upon which the appellant must aim her
performance. Greer v. Department of the Army , 79 M.S.P.R. 477, 483-84 (1998).
The Board recognizes that positions requiring technical expertise, independence,
and discretion are incongruous with performance standards that are strictly
objective and may require a degree of subjective judgment that would not be
necessary or proper in a position of a less professional or technical nature. Id.
Here, as set forth in the initial decision, the GENISIS timelines “were
established based on a trend analysis” and, absent extenuating circumstances, the
agency expected these timelines to be met. ID at 5-6; IAF, Tab 14 at 214-16. Of
note, however, at least one agency employee testified that “it was common for
Analysts to miss GENISIS deadlines by a few days.” ID at 26. Thus, the agency
afforded flexibility with the timelines, i.e., a missed deadline was not necessarily
indicative of a performance deficiency. We find no error with this subjectivity.
To this end, the appellant’s position required that she work independently on
projects with many moving parts and provide technical expertise on numerous
issues; indeed, her position was undisputedly complex and required a high degree
of discretion. ID at 4-5; IAF, Tab 35 at 223-25. Thus, it follows that the
deadlines associated with her work assignments required a degree of malleability;
indeed an unanticipated, complex scenario might arise that would necessitate
more time than that provided by the timelines. See Graham v. Department of the
Air Force, 46 M.S.P.R. 227, 236 n.7 (1990) (stating that the degree of specificity
and objectivity required of a performance standard varies inversely to the amount
of discretion and independence reposed in the employee). Accordingly, we find
the appellant’s argument regarding objectivity unavailing.
10 She asserts as follows: “there are zero objective criteria on which the Genisis
timelines are based.” PFR File, Tab 1 at 13 (punctuation in original). 8
The appellant’s performance standards were reasonable and
attainable.
The appellant also argues that her performance standards were
unattainable.11 PFR File, Tab 1 at 13-14. In so arguing, she draws the Board’s
attention to documents wherein she detailed her activities on work assignments
that the agency believed she had mismanaged. Id. at 14. She also provides a
narrative summary of her work on nine assignments, all of which the agency
referenced in its removal decision, ostensibly to show that she could not possibly
have completed her assignments within the GENISIS timelines. Id. at 14-19;
IAF, Tab 12 at 59-65, Tab 14 at 214-16. These assertions, however, do not
provide a basis to disturb the administrative judge’s implicit conclusion that the
appellant’s performance standards were reasonable, realistic, and attainable. ID
at 26; 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); Broughton v. Department of Health & Human Services , 33 M.S.P.R.
357, 359 (1987) (same); see also Marques v. Department of Health & Human
Services, 22 M.S.P.R. 129, 132 (1984) (explaining that an administrative judge’s
failure to discuss all of the evidence of record does not mean that the evidence
was not considered), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
To support her argument that the GENISIS timelines were unreasonable,
the appellant also asserts that other agency employees failed to meet the
timelines. PFR File, Tab 1 at 19-20. However, we find no basis to disturb the
administrative judge’s demeanor-based conclusion that, although other analysts
also missed GENISIS deadlines, “the appellant’s missed deadlines were more
common, longer, and less justified than what was expected and what other
11 Her arguments in this regard again focus solely on the GENISIS timelines. PFR File,
Tab 1 at 13-14; IAF, Tab 14 at 214-16. Of note, however, the appellant’s inability to
meet the GENISIS timelines was not her only noted deficiency in the Planning,
Organizing, and Coordinating critical element. IAF, Tab 12 at 65. 9
[a]nalysts were accomplishing.” ID at 26; see Purifoy v. Department of Veterans
Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (finding that the Board must
defer to an administrative judge’s demeanor -based credibility determinations,
“[e]ven if demeanor is not explicitly discussed”); Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002). Thus, a different outcome is not
warranted.
The appellant challenges the administrative judge’s conclusion that she failed to
prove her affirmative defense of disability discrimination based on the agency’s
failure to accommodate; however, none of her arguments warrant reversal of the
agency’s removal action .
The appellant challenges the administrative judge’s conclusion that
she failed to prove her affirmative defense of disability discrimination based on
the agency’s failure to provide her with a reasonable accommodation. PFR File,
Tab 1 at 6-12. She argues, among other things, that (1) the administrative judge
applied a confusing and incorrect legal standard and (2) the administrative judge
erred in concluding that she was not a qualified individual with a disability. Id.
For the reasons discussed herein, we find that these assertions do not warrant
reversal of the agency’s removal action.
We modify the initial decision to clarify the legal standard
applicable to failure to accommodate disability discrimination
claims.
The appellant contends that the administrative judge “failed to even
identify, much less discuss or correctly apply, the substantive law applicable to
disability discrimination claims in [F]ederal employment.” PFR File, Tab 1 at 6.
She asserts that the administrative judge’s analysis was difficult to follow and
neglected to reference the applicable statutes, including the Rehabilitation Act of
1973. Id. at 6-7, 9-11. She also alleges that the administrative judge “engineered
the process in reverse, first looking at the relationship between the disability
discrimination and the removal, and later tracking back to the substantive
discrimination issues themselves.” PFR File, Tab 4 at 6. We agree that the legal10
standard set forth in the initial decision was not a model of clarity; accordingly,
we modify the initial decision to clarify the legal standard applicable to failure to
accommodate disability discrimination claims.
An agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue
hardship on its business operations. Miller v. Department of the Army ,
121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). Reasonable
accommodation includes modifications to the manner in which a position is
customarily performed in order to enable a qualified individual with a disability
to perform the essential job functions. Miller, 121 M.S.P.R. 189, ¶ 13. In order
to establish disability discrimination, an employee must show the following:
(1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g);
(2) she is a qualified individual with a disability, as defined by 29 C.F.R.
§ 1630.2(m); and (3) the agency failed to provide a reasonable accommodation.
Id.
Here, despite a confusing recitation of the applicable law, the
administrative judge ultimately applied the above legal standard and found,
among other things, that although the appellant had a disability, i.e., generalized
anxiety disorder, she failed to show that she was a qualified individual with a
disability. ID at 28-30. As discussed in greater detail herein, we discern no basis
to disturb this finding; accordingly, the appellant necessarily failed to prove her
affirmative defense. See Haas v. Department of Homeland Security , 2022 MSPB
36, ¶ 28 (explaining that a claim of disability discrimination based on an agency’s
failure to reasonably accommodate that disability requires that the individual be a
qualified individual with a disability). To the extent the administrative judge also
applied an alternative legal framework to this claim, ID at 26-27, we vacate that
portion of his analysis and any findings he made related thereto.11
We discern no basis to disturb the administrative judge’s conclusion
that the appellant failed to show that she is a qualified individual
with a disability.
The appellant contends that the administrative judge erred in finding that
she was not a qualified individual with a disability. PFR File, Tab 1 at 9, Tab 4
at 6. She argues that three of her requested accommodations would have
improved her work performance, i.e., a 6-hour workday, reassignment to a vacant
Consumer Access Coordinator position, and a new trainer; however, the agency
improperly denied her requests for these accommodations, thereby thwarting her
ability to demonstrate that she could successfully perform the essential duties of
her position with an accommodation.12 PFR File, Tab 1 at 5, 7, 9-10. She avers
that her requests were denied simply because “they were inconvenient to the
agency.” PFR File, Tab 4 at 7. We find these assertions unavailing.
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
36, ¶ 28; 29 C.F.R. § 1630.2(m). The essential functions of a position generally
refer to the fundamental job duties or the reason for a position’s existence as
reflected in, among other things, the amount of time spent on a particular task.
12 Relatedly, the appellant asserts that her requests for accommodation were consistent
with the applicable regulations; however, the agency “made zero effort” to work with
her and instead made “repeated requests for documentation and bureaucratic
submissions.” PFR File, Tab 1 at 7-9 . We find this assertion unsupported by the
record. Indeed, the record shows that the information sought by the agency was
permissibly tailored to determining whether the appellant had a disability for which she
needed an accommodation. E.g., IAF, Tab 35 at 220-21, 234; see
https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-
and-undue-hardship-under-ada#requesting (last visited Apr. 5, 2024) (explaining that
the employer may ask for reasonable documentation about an employee’s disability and
functional limitations because the employer is entitled to know that the individual has a
covered disability for which she needs a reasonable accommodation). Although the
agency ultimately denied all of the appellant’s requests, it did so because the requests
were not reasonable. See Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶ 17
(2014) (explaining that the appellant bears the burden of proving that an
accommodation sought is reasonable). 12
Henry v. Department of Veterans Affairs , 100 M.S.P.R. 124, ¶ 10 (2005). A
reasonable accommodation means, among other things, modifications or
adjustment to the work environment or to the manner or circumstances under
which a position is performed and may include job restructuring or the
modification of office equipment. Id.; 29 C.F.R. § 1630.2( o)(1)(ii), (2)(ii). An
agency, however, is not required to lower its production or performance standards
as a reasonable accommodation. Byrne v. Department of Labor , 106 M.S.P.R. 43,
¶ 7 (2007).
Here, the appellant’s assertions do not provide a basis to disturb the
administrative judge’s conclusion that the appellant failed to show that she could
perform all of the essential functions of her position, or that there was
an accommodation that would have enabled her to do so.13 ID at 28. To this end,
we agree with the administrative judge that the record is devoid of evidence
showing that a 6-hour workday would have enabled the appellant to perform all of
the essential functions of her position. ID at 28-29. Indeed, the record reflects
that on June 8, 2018, before the agency issued its decision regarding the
appellant’s accommodation requests, the agency permitted the appellant to work
6 hours per day and use 2 hours of sick leave. IAF, Tab 35 at 228. The agency’s
October 31, 2018 Decision on Reasonable Accommodation Requests, which
concluded that the appellant had provided no specific medical reason for this
sought accommodation, similarly informed the appellant that she was permitted to
request use of her available sick and/or annual leave “when medical needs
13 The appellant avers in her reply that she was performing satisfactorily at the time she
submitted her accommodation request. PFR File, Tab 4 at 6. As discussed above, the
appellant was rated “fully successful” as a Consumer Access Analyst for the appraisal
period ending on September 30, 2018. ID at 11; IAF, Tab 14 at 263. The
administrative judge found, however, that the appellant’s first-line supervisor had
credibly testified that, for a variety of factors, including the appellant’s January 7, 2018
start date in this position and her March 23 to May 8, 2018 leave of absence, she had
insufficient time within which to fully assess the appellant’s performance. ID at 11; see
Haebe, 288 F.3d at 1301. 13
warrant.”14 IAF, Tab 30 at 16. Despite these allowances, the appellant was
unable to perform all of the essential functions of her position.
Regarding reassignment, we discern no basis to disturb the administrative
judge’s demeanor-based conclusion that the position to which the appellant
sought to be reassigned was unavailable. ID at 9 & n.16, 30; IAF, Tab 30 at 13,
16; see Haebe, 288 F.3d at 1301; see also Jackson v. U.S. Postal Service ,
79 M.S.P.R. 46, 54 (1998) (clarifying that the agency’s failure to look for a
position as a reasonable accommodation does not relieve the appellant of her
burden of ultimately showing that such positions existed and were available).
Last, as discussed in the initial decision, the appellant’s request for a new trainer
for the agency’s formal training program was effectively rendered moot by the
September 30, 2018 completion of program.15 ID at 12; IAF, Tab 30 at 16,
Tab 35 at 214. Thus, the appellant’s arguments do not provide a basis to disturb
the administrative judge’s conclusion that the appellant failed to show that she is
a qualified individual with a disability.16 Accordingly, we agree that the
appellant failed to prove her claim of disability discrimination based on a failure
to accommodate. See Haas, 2022 MSPB 36, ¶ 28 (explaining that a claim of
disability discrimination based on an agency’s failure to reasonably accommodate
requires that the individual be “qualified”).
14 In essence, although the agency’s decision letter indicated that it was denying the
appellant’s requested accommodation of a 6-hour workday with 2 hours of sick leave,
PFR File, Tab 1 at 8; IAF, Tab 30 at 16, the agency functionally granted the request,
IAF, Tab 30 at 16. Indeed, the appellant does not allege that the agency improperly
denied any leave requests.
15 On review, the appellant states that “she had not received all components of the
training” by this date. PFR File, Tab 1 at 10 n.5. However, the appellant’s request for
a new trainer referenced the agency’s training program, which concluded in
September 2018. ID at 7; IAF, Tab 35 at 214. In any event, the appellant did not show
that her request for a new trainer was reasonable; indeed, this request appeared to stem
from a personality conflict, not the appellant’s disability. ID at 7 n.13; see Clemens,
120 M.S.P.R. 616, ¶ 17.
16 Because we so find, to the extent the appellant argues on review that the agency also
engaged in disparate treatment disability discrimination, PFR File, Tab 1 at 15, 19-20,
her claim is necessarily unavailing, see Haas, 2022 MSPB 36, ¶ 28.14
The appellant’s contention regarding the length of her PIP is unavailing .
The appellant avers that her PIP was not in compliance with the applicable
Collective Bargaining Agreement (CBA). PFR File, Tab 1 at 20. To this end,
she avers that the CBA requires a PIP to be “60-120 days of time for each critical
element that is included in the PIP,” and, therefore, her PIP should have been at
least 120 days long. Id. (emphasis in original); IAF, Tab 12 at 22. We find this
assertion unavailing. Of note, the appellant did not raise this harmful procedural
error affirmative defense before the administrative judge. E.g., IAF, Tab 24 at 4;
see Slavich v. Social Security Administration , 102 M.S.P.R. 171, ¶ 8 (2006)
(indicating that allegations of agency error in applying CBA provisions in chapter
43 actions are treated as claims of procedural error); DeSousa v. Agency for
International Development , 38 M.S.P.R. 522, 526 (1988) (same); see also 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); 5 C.F.R.
§ 1201.115(d).
In any event, we find this claim unpersuasive. Pursuant to 5 U.S.C.
§ 7701(c)(2)(A), the Board will not sustain an agency’s decision if the appellant
“shows harmful error in the application of the agency’s procedures in arriving at
such decision.” A procedural error is harmful when the record shows that an
error by the agency was likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Pumphrey v. Department of Defense , 122 M.S.P.R. 186, ¶ 10 (2015); 5 C.F.R.
§ 1201.4(r). Here, the administrative judge found credible the testimony of the
appellant’s first-line supervisor, who explained that she did not grant any PIP
extensions beyond the 30-day extension “because it was clear the outcome would
not change.” ID at 19 n.27; see Haebe, 288 F.3d at 1301. Thus, even assuming
that the agency should have provided the appellant with a 120-day PIP, we find15
that the appellant has failed to show that this error would likely have caused the
agency to reach a different conclusion. Thus, the appellant’s claim is unavailing.
We affirm the agency’s removal action .
We have considered the appellant’s remaining arguments; however, we find
that none provide a basis to reverse the agency’s action. Accordingly, because
we agree with the administrative judge’s conclusions that (1) the agency proved
by substantial evidence that the appellant’s performance remained unacceptable
in the Planning, Organizing, and Coordinating critical element and (2) the
appellant did not prove her affirmative defense, we affirm the removal. See, e.g.,
Lisiecki v. Federal Home Loan Bank Board , 23 M.S.P.R. 633, 646 (1984)
(concluding that the Board has no authority to mitigate a removal taken under
5 U.S.C. chapter 43 for unacceptable performance), aff’d, 769 F.2d 1558, 1566 -67
(Fed. Cir. 1985).
NOTICE OF APPEAL RIGHTS17
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
17 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
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. 17
(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: 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.18 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).
18 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 | Trueblood_AmandaDE-0432-21-0099-I-1__Final_Order.pdf | 2024-04-05 | AMANDA TRUEBLOOD v. NATIONAL CREDIT UNION ADMINISTRATION, MSPB Docket No. DE-0432-21-0099-I-1, April 5, 2024 | DE-0432-21-0099-I-1 | NP |
1,860 | https://www.mspb.gov/decisions/nonprecedential/Baldwin_LaSonja_S_DA-0752-22-0267-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LASONJA S. BALDWIN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0752-22-0267-X-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
L
aSonja S. Baldwin , Manvel, Texas, pro se.
Daniel Morvant , Esquire, Denver, Colorado, for the agency.
Eric Christeson , Esquire, Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
In a December 20, 2022 compliance initial decision, the administrative
judge found the agency in partial noncompliance with the July 22, 2022 initial
decision reversing the cancellation of the appellant’s reduction in grade.
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).
Baldwin v. Department of Veterans Affairs, MSPB Docket No. DA-0752-22-
0267-C-1, Compliance File, Tab 9, Compliance Initial Decision (CID); Baldwin v.
Department of Veterans Affairs, MSPB Docket No. DA-0752-22-0267-I-1, Initial
Appeal File, Tab 23, Initial Decision (ID). For the reasons discussed below, we
now find the agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On July 22, 2022, the administrative judge issued an initial decision
reversing the appellant’s reduction in grade and requiring the agency to take any
steps necessary to cancel the action and pay the appellant appropriate back pay,
with interest. ID at 1, 6. Following the appellant’s petition for enforcement of
this order, the administrative judge issued a compliance initial decision on
December 20, 2022, finding the agency compliant except with respect to interest
on the back pay amount. CID at 4. The administrative judge ordered the agency
to submit evidence showing that it had paid the appropriate amount of interest
and provided the appellant a narrative explanation of its interest calculations.
CID at 5.
In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the actions required by the decision, it must
submit to the Office of 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 had taken the
actions identified in the compliance initial decision, along with evidence
establishing that it has taken those actions. CID at 5-6; see 5 C.F.R.
§ 1201.183(a)(6)(i). She also informed the parties of their option to request
Board review of the compliance initial decision by filing a petition for review by
January 24, 2023, the date on which the findings of noncompliance would become
final unless a petition for review was filed. CID at 6-7; see 5 C.F.R.
§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party filed any
submission with the Office of the Clerk of the Board within the time limit set2
forth in 5 C.F.R. § 1201.114. Accordingly, pursuant to 5 C.F.R.
§ 1201.183(b)-(c), the administrative judge’s findings of noncompliance became
final, and the appellant’s petition for enforcement was referred to the Board for a
final decision on issues of compliance. Baldwin v. Department of Veterans
Affairs, MSPB Docket No. DA-0752-22-0267-X-1 , Compliance Referral File
(CRF), Tab 1.
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).
On February 3, 2023, the agency responded to the acknowledgement order
and submitted evidence that it had paid the appellant interest on the back pay.
CRF, Tab 2 at 9-20. The appellant has not responded to this submission, although
the acknowledgement order informed her that if she did not respond to the
agency’s submission within 20 calendar days, the Board might assume she was
satisfied and dismiss her petition for enforcement. CRF, Tab 1 at 3.
Accordingly, in view of the evidence submitted by the agency and the appellant’s
lack of response, we find the agency 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)).3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Baldwin_LaSonja_S_DA-0752-22-0267-X-1_Final_Order.pdf | 2024-04-05 | LASONJA S. BALDWIN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-22-0267-X-1, April 5, 2024 | DA-0752-22-0267-X-1 | NP |
1,861 | https://www.mspb.gov/decisions/nonprecedential/Lauterbach_Brian_P_SF-1221-22-0045-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN P. LAUTERBACH,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-22-0045-W-1
DATE: April 5, 2024
THIS ORDER IS NONPRECEDENTIAL1
Brian P. Lauterbach , Welches, Oregon, pro se.
Stephen Funderburk , Esquire, Seattle, Washington, 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 mixed-case2 38 U.S.C. § 714 removal appeal/individual right of
action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 A mixed-case appeal is an appeal filed with the Board alleging that an appealable
agency action was effected because of discrimination. 29 C.F.R. § 1614.302(a)(2).
GRANT the appellant’s petition for review. We VACATE the administrative
judge’s analysis of the mixed-case portion of the appeal and REMAND that
portion of the matter to the Western Regional Office for further adjudication. We
AFFIRM the administrative judge’s conclusion that the Board lacks jurisdiction
over the IRA portion of this appeal.
BACKGROUND
On April 2, 2021, the appellant filed a Board appeal challenging his
January 20, 2021 removal from Federal service under 38 U.S.C. § 714.
Lauterbach v. Department of Veterans Affairs , MSPB Docket No. SF-0714-21-
0285-I-1, Initial Appeal File (0285 IAF), Tab 1 at 7-10. The appellant alleged
that his removal was precipitated by both discrimination and whistleblower
retaliation, and he averred that he had filed a complaint with the Office of Special
Counsel (OSC) 3 days prior, on March 30, 2021. Id. at 4-5. Shortly thereafter,
on April 13, 2021, the appellant requested to withdraw his Board appeal,
explaining that he was “filing [a] formal complaint with [the agency’s equal
employment opportunity (EEO) office],” and “[t]hey will not allow EEO and
MSPB complaints together.” 0285 IAF, Tab 5 at 3. The administrative judge
issued a show cause order explaining the legal implications of the appellant’s
withdrawal, i.e., that it was an act of finality that would end the Board proceeding
and providing both parties with an opportunity to object to dismissal of the
appeal. 0285 IAF, Tab 7 at 1-2. Neither party did so. Thereafter, on April 27,
2021, the administrative judge issued an initial decision dismissing the appeal as
withdrawn. 0285 IAF, Tab 8, Initial Decision at 1-2. Neither party filed a
petition for review of the initial decision.
Approximately 6 months later, on October 23, 2021, the appellant filed the
instant appeal alleging that (1) the agency had yet to issue a final agency decision
(FAD) regarding his April 13, 2021 formal EEO complaint and more than
120 days had elapsed since he had filed the same and (2) OSC had yet to issue a2
decision concerning his March 30, 2021 complaint and more than 120 days had
passed. Initial Appeal File (IAF), Tab 1, Tab 10 at 2-3.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the mixed-case portion of the appeal for lack
of jurisdiction, reasoning that the appellant had previously filed and withdrawn a
Board appeal concerning his removal. IAF, Tab 14, Initial Decision (ID) at 8-10.
She also reasoned that the mixed-case portion of the appeal was untimely because
it had been filed beyond the statutory deadline set forth in 38 U.S.C. § 714(c)(4)
(B), i.e., more than 10 business days after the agency’s removal action. ID at 8.
Regarding the IRA portion of the appeal, the administrative judge concluded,
among other things, that the appellant had failed to make a nonfrivolous
allegation that he had made a protected disclosure under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity under 5 U.S.C. § 2302(b)(9). ID at 11-16.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 4.3
We vacate the administrative judge’s analysis of the mixed-case portion of the
appeal and remand this portion of the appeal for adjudication of the merits.
When, as here, an employee alleges that he was subjected to an otherwise
appealable adverse action that can be the subject of a negotiated grievance
3 With his petition, the appellant provides additional documents, i.e., a copy of a
January 22, 2021 Executive Order, a printout regarding whistleblowing best practices, a
copy of an anonymous complaint made to the agency’s Office of the Inspector General
(OIG), email correspondence suggesting that the appellant contacted OIG on or about
March 4, 2021, and a letter indicating that the appellant’s wife contacted OIG on or
about April 1, 2021. PFR File, Tab 1 at 6-16. The Board generally will not consider
evidence submitted for the first time with the petition for review absent a showing that
it was unavailable before the record was closed despite the party’s due diligence. See
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d).
Here, the appellant provides no explanation as to why he could not submit these
documents prior to the close of the record. In any event, as discussed herein, these
documents are not material to the outcome of this appeal. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision).3
procedure and he claims that action was based on EEO discrimination, the
employee may choose among the following: (1) a negotiated grievance
procedure; (2) a Board appeal; or (3) a formal EEO complaint. 5 U.S.C.
§ 7121(d); Galloway v. Social Security Administration , 111 M.S.P.R. 78, ¶ 14
(2009). Whichever is filed first is generally deemed a binding, irrevocable
election to proceed in that forum. Carey v. Department of the Interior ,
103 M.S.P.R. 534, ¶ 11 (2006). If the employee elects to file a formal EEO
complaint and the agency has not issued FAD within 120 days, the appellant may
file a Board appeal at any time after the expiration of the 120 calendar days.
5 U.S.C. § 7702(a); see 5 C.F.R. §§ 1201.151(a)(1), 1201.154(b)(2). Such an
appeal is known as a mixed case, and the Board will adjudicate both the
underlying appealable action and the discrimination claims. Wilson v.
Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 12, 14.
As stated, the appellant initially raised his discrimination claim regarding
the agency’s January 20, 2021 removal action via his April 2, 2021 Board appeal.
0285 IAF, Tab 1. This mixed -case appeal, however, was untimely filed. See
Davis v. Department of Veterans Affairs , 2022 MSPB 45, ¶¶ 17, 19 (finding that
5 U.S.C. § 7702(a)(1) governs mixed-case section 714 appeals filed directly with
the Board and, therefore, that an appellant is required to file such an appeal
within 30 days of the effective date of the agency’s action or 30 days after the
date of his receipt of the agency’s decision, whichever is later).4 As a result, the
appellant’s April 2, 2021 Board appeal did not constitute a valid election. See
5 U.S.C. § 7121(d) (stating that “[a]n employee shall be deemed to have
exercised his option under this subsection . . . at such time as the employee timely
4 In her initial decision, the administrative judge stated that the April 2, 2021 appeal
was untimely because it was filed beyond the statutory deadline set forth in 38 U.S.C.
§ 714(c)(4)(B), i.e., more than 10 business days after the agency’s January 20, 2021
removal action. ID at 8. This finding was imprecise. The appellant’s April 2, 2021
appeal was instead untimely because it was not filed within 30 days of the effective date
of the agency’s action or within 30 days after the date of his receipt of the agency’s
decision. See Davis, 2022 MSPB 45, ¶ 17.4
initiates an action under the applicable statutory procedure”) (emphasis added).
Accordingly, the appellant’s initial, valid election for purposes of 5 U.S.C.
§ 7121(d) was his April 13, 2021 formal EEO complaint. On October 23, 2021,
following the passage of more than 120 days without the issuance of a FAD, the
appellant filed the instant appeal.
The Board has clarified that, if an appellant files an EEO complaint
concerning an adverse action taken pursuant to 38 U.S.C. § 714 and thereafter
files a Board appeal, then that appeal is subject to the procedures contained in
5 U.S.C. § 7702, not 38 U.S.C. § 714. Wilson, 2022 MSPB 7, ¶ 19. Accordingly,
because the agency here failed to issue a FAD regarding the appellant’s EEO
complaint within 120 days, the appellant permissibly, and timely, filed his
mixed-case appeal with the Board on October 23, 2021. 5 U.S.C. § 7702(a)(2),
(e)(2). Accordingly, we remand the mixed-case portion of this matter to the
regional office for adjudication of the merits.5
We discern no basis to disturb the administrative judge’s conclusion that
the Board lacks jurisdiction over IRA portion of the appeal.6
5 As stated, the appellant withdrew his initial April 2, 2021 Board appeal. 0285 IAF,
Tab 5 at 3. Although an appellant’s withdrawal of an appeal is typically an act of
finality that removes the appeal from the Board’s jurisdiction and precludes
reinstatement, Lincoln v. U.S. Postal Service , 113 M.S.P.R. 486, ¶ 7 (2010), the Board
has recognized that unusual circumstances may warrant a departure from this rule, e.g.,
Nazario v. Department of Justice , 108 M.S.P.R. 468, ¶ 4 (2008). Here, we find such
circumstances present; indeed, at the time the pro se appellant filed his April 2, 2021
appeal, his direct mixed-case Board appeal was untimely, and the IRA portion of his
claim was not yet ripe for adjudication. 0285 IAF, Tab 1 at 4-5.
6 Under 5 U.S.C. § 7121(g), an employee subjected to an action appealable to the Board
who alleges that the contested action was because of whistleblowing may elect one of
the following avenues of redress: (1) an appeal to the Board under 5 U.S.C. § 7701;
(2) a grievance filed pursuant to the provisions of a negotiated grievance procedure; or
(3) the procedures for seeking corrective action from OSC, potentially followed by an
IRA appeal. An appellant’s first timely filed action determines the exclusive election.
King v. Department of the Air Force , 116 M.S.P.R. 423, ¶ 8 (2011). Because it is
undisputed that the appellant elected to file a complaint with OSC before he appealed to
the Board, we find it appropriate to consider the appellant’s mixed-case and IRA claims
separately, i.e., the appellant may not raise whistleblower reprisal as an affirmative
defense in the mixed-case portion of his appeal on remand. 5
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence7 that he exhausted his administrative remedies before
OSC and make nonfrivolous allegations8 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).
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 11, 14. Here,
the administrative judge concluded that the appellant had failed to make a
nonfrivolous allegation that he had made such a protected disclosure or engaged
in such protected activity and, therefore, that the Board lacks jurisdiction over the
appellant’s IRA appeal. ID at 11-16. In so concluding, she reasoned that the
disclosures at issue, which concerned the agency’s purported medical
mistreatment/misdiagnoses of the appellant’s veteran son, did not involve the
type of wrongdoing protected under the statute. ID at 14. We discern no basis to
disturb any of her conclusions.
For the first time on review, the appellant asserts that he and his wife
informed the agency’s Office of the Inspector General (OIG) about the agency’s
purported medical mistreatment of their son; thus, he ostensibly argues that both
he and his wife engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).9
PFR File, Tab 1 at 17. We find this argument untimely and, in any event,
unavailing. See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980) (explaining that the Board generally will not consider an argument raised
7 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).
8 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
9 A disclosure of information to OIG constitutes protected activity under 5 U.S.C.
§ 2302(b)(9)(C) regardless of its content. See Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶ 62.6
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).
Indeed, to support this apparent argument, the appellant provides documents
suggesting that he and his wife contacted OIG on or about March 4, 2021, and
April 1, 2021, respectively.10 PFR File, Tab 1 at 11-12, 16. Insofar as the
appellant was removed from his position on January 20, 2021, however, this
activity could not have contributed to his removal. See El v. Department of
Commerce, 123 M.S.P.R. 76, ¶ 10 (2015) (explaining that, because the subject
personnel action predated the appellant’s protected disclosure, the disclosure
could not have contributed to the personnel action), aff’d, 663 F. App’x 921 (Fed.
Cir. 2016). Thus, we discern no basis to disturb the administrative judge’s
conclusion that the Board lacks jurisdiction over the IRA portion of this appeal.
ORDER
For the reasons discussed above, we remand the mixed-case portion of this
appeal 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.
10 The appellant also provides documents suggesting that his wife anonymously filed an
OIG complaint concerning staffing issues. PFR File, Tab 1 at 13-15. It is unclear when
this particular complaint was filed; however, the date “9/12/2018” appears on the same.
Id. In any event, the appellant does not discernably allege that agency personnel were
aware of this anonymous complaint, which was filed over 2 years prior to his removal,
or its potential connection to him. 7 | Lauterbach_Brian_P_SF-1221-22-0045-W-1__Remand_Order.pdf | 2024-04-05 | BRIAN P. LAUTERBACH v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-22-0045-W-1, April 5, 2024 | SF-1221-22-0045-W-1 | NP |
1,862 | https://www.mspb.gov/decisions/nonprecedential/Frericks_LonniePH-0752-20-0355-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LONNIE FRERICKS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-20-0355-I-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard R. Renner , Esquire, Silver Spring, Maryland, for the appellant.
Luke K. McPherson , Indian Head, 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 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
expand upon and clarify the administrative judge’s analysis regarding
whistleblower reprisal and disability discrimination, we AFFIRM the initial
decision.
The following facts, as further detailed throughout the record and the initial
decision, appear to be undisputed. The appellant most recently held the position
of Technician in the agency’s Explosive Ordnance Disposal (EOD) Department,
working at a facility in Indian Head, Maryland. Initial Appeal File (IAF), Tab 35,
Initial Decision (ID) at 2. In February 2020, the agency proposed his removal
from service for “unacceptable conduct.” IAF, Tab 4 at 31-45.
The proposal included a lengthy narrative surrounding three incidents or
specifications. Id. at 31-34. Chronologically, the first alleged that the appellant
had a verbal altercation with a coworker on January 2, 2019, resulting in a
bullying accusation consistent with other employees’ reported fears of the
appellant. Id. at 34. The second alleged that the appellant had a verbal
altercation with another coworker on and around June 4, 2019, which included the
appellant getting in the coworker’s face and making demeaning comments. Id.
at 33. The third alleged that the appellant had an altercation with his supervisor
on October 24, 2019, which culminated with the appellant punching his computer
screen and desk, and yelling at his supervisor while standing just inches from the
supervisor’s face. Id. at 32. The deciding official sustained the removal, finding
all the specifications proven. IAF, Tab 5 at 42-56.2
The appellant filed the instant appeal to challenge his removal. IAF, Tab 1.
After developing the record and holding the requested hearing, the administrative
judge sustained the action. E.g., Hearing Transcript, Volume 1 (HT1); Hearing
Transcript, Volume 2 (HT2); Hearing Transcript, Volume 3 (HT3).2 She first
found that the agency proved its specifications and charge. ID at 4-9 (October 24
incident), 9-16 (June 4 incident), 16-20 (January 2 incident and accompanying
reports). The administrative judge next found that the appellant failed to prove
his claims of disability discrimination, ID at 21-24, or reprisal for equal
employment opportunity (EEO) activity, ID at 24-27.
Regarding his whistleblower reprisal claim, the administrative judge found
that the appellant met his burden of proving that he engaged in some protected
disclosures and activities but failed to meet his burden for others. ID at 27-35.
Of those that remained, the administrative judge found that the appellant proved
some, but not all, were a contributing factor in his removal. ID at 35-38. She
then shifted the burden and found that the agency met its burden of rebutting the
appellant’s prima facie case of reprisal. ID at 38-40.
The administrative judge also found that the appellant failed to prove his
harmful error claim. ID at 40-45. Finally, the administrative judge found that the
agency proved the nexus requirement, as well as the reasonableness of its penalty.
ID at 45-48.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 12.3 After a lengthy description of background information, id.
at 13-39, and a statement of the case, id. at 39-42, the appellant’s petition
presents several specific legal arguments, none of which concern the agency’s
2 We note that volumes 1 & 3 of the transcript are the reverse of what might be
expected. Volume 1 details the third day of the hearing while volume 3 details the first
day of the hearing.
3 The appellant requested and received multiple extensions, so his petition is timely,
despite appearing otherwise. PFR File, Tabs 2, 4, 6. The appellant also requested and
received permission to submit a petition that is nearly double the Board’s ordinary
length limitation. PFR File, Tab 10. 3
proof of its charge. Instead, the appellant reasserts his claims of harmful
procedural error, id. at 42-43, whistleblower reprisal, id. at 43-68, and disability
discrimination. Id. at 68-70. The appellant also challenges the reasonableness of
the penalty, id. at 70-71, and the administrative judge’s decision to disallow
certain witnesses, id. at 71. The agency has filed a response to the appellant’s
petition,4 to which the appellant has replied.5 PFR File, Tabs 15, 25.6
The appellant failed to prove his harmful error claim.
As previously noted, the administrative judge found that the agency proved
its charge, and the appellant has not substantively challenged those findings on
review. Accordingly, our analysis will begin where the appellant’s petition began
—with his harmful procedural error affirmative defense.
4 The agency’s response appeared to be untimely by a day. Compare PFR File, Tab 14
(indicating that the filing deadline was October 11, 2021), with PFR File, Tab 15
(agency’s response filing, submitted on October 12, 2021). But, as the agency has
correctly noted, October 11, 2021, was a Federal holiday. PFR File, Tab 19. Therefore,
we find the response timely, pursuant to 5 C.F.R. § 1201.23.
5 The appellant requested and received permission to submit a reply that exceeded the
Board’s length limitations. PFR File, Tab 24.
6 The appellant has requested leave to submit a motion to strike evidence included in the
agency’s response brief about the appellant’s harmful error claim. PFR File, Tab 21.
He asserts that the evidence should have been submitted below, not on review. Id. The
agency has requested leave to respond to the appellant’s reply brief because it contained
new arguments. PFR File, Tab 27. The appellant filed a pleading in opposition. PFR
File, Tab 29.
Both parties’ requests for leave to submit further pleadings are denied. We will not
consider the evidence included with the agency’s response brief. It was submitted for
the first time on review, without any indication that it was previously unavailable. See
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (recognizing 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). Plus, the evidence is not necessary to our
conclusion that the appellant’s harmful error claim is unavailing. We also will not
consider any arguments contained in the appellant’s reply brief that exceed the bounds
of the agency’s response. See 5 C.F.R. § 1201.114(a)(4) (providing that a reply to a
response to a petition for review is limited to the factual and legal issues raised by
another party in the response to the petition for review; it may not raise new allegations
of error).4
Reversal of an action for harmful error is warranted where a procedural
error likely had a harmful effect upon the outcome of the case before the agency.
Henton v. U.S. Postal Service , 102 M.S.P.R. 572, ¶ 15 (2006). Harmful error
cannot be presumed, and the burden of showing harmful error lies with the
appellant. Id. To show harmful error, an appellant must prove that any
procedural error was likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Id.
Within the proposal to remove the appellant, the agency included an
analysis of the factors considered for deciding on a penalty. IAF, Tab 4 at 34-39.
Among other things, this analysis described his past disciplinary record as
including letters of reprimand in September 2010 and June 2015, along with
several other less formal interventions. Id. at 36.
Broadly speaking, the appellant’s harmful error claim concerns his ability
to review those September 2010 and June 2015 reprimands before the deciding
official issued her decision—reprimands that the appellant has since disputed in
terms of authenticity or applicability. E.g., ID at 44-45; PFR File, Tab 12
at 42-43. The administrative judge was not persuaded. She provided a detailed
accounting of the parties’ extensive communications during this response period,
which included the agency’s instructions for obtaining all the materials relied
upon, the appellant’s admitted failure to follow those instructions, and the
appellant’s apparent request for other materials outside the proper channels. ID
at 40-43. The administrative judge also noted that the deciding official testified
that she did not review the appellant’s past reprimands or rely upon them in
reaching her decision. ID at 45.
On review, the appellant argues that the agency’s instruction for obtaining
materials relied upon for the proposed removal—which consisted of calling a
particular individual by a phone number provided—amounted to an impermissible
“hurdle.” PFR File, Tab 12 at 42. The appellant further argues that the harm5
from this was evident because the administrative judge faulted the appellant for
failing to review and challenge the reprimands during the response period. Id.
We are not persuaded. Even if we were to find that the circumstances
amounted to an agency error, the appellant’s argument about the resulting harm is
misplaced. The appellant’s petition contains no argument that the agency would
have reached a different conclusion if it had not erred in the way the appellant has
alleged. To the contrary, the deciding official’s testimony, as recounted in the
initial decision, indicates that the agency would have reached the same
conclusion, since she did not rely on either of the reprimands the appellant now
disputes. ID at 45.
The appellant made some disclosures protected under section 2302(b)(8) and
engaged in some activity protected under section 2302(b)(9).
Pursuant to the Whistleblower Protection Enhancement Act of 2012
(WPEA), to prevail on a prohibited personnel practice affirmative defense in a
chapter 75 appeal that independently could form the basis of an individual right
of action appeal, the appellant must first demonstrate by preponderant evidence
that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the
disclosure or activity was a contributing factor in the adverse action. See Alarid
v. Department of the Army , 122 M.S.P.R. 600, ¶¶ 12-13 (2015) (recognizing that,
under the WPEA, an appellant may raise an affirmative defense of whistleblower
retaliation based on protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), and (D)); Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 19
(2013) (stating the foregoing proposition concerning disclosures protected by
5 U.S.C. § 2302(b)(8)). If the appellant meets this burden, then the burden of
persuasion shifts to the agency to prove by clear and convincing evidence that it
would have taken the same action in the absence of the appellant’s protected
disclosure or activity. Alarid, 122 M.S.P.R. 600, ¶ 14.6
The administrative judge addressed the following disclosures or activities
in concert with the appellant’s whistleblower reprisal claim:
Disclosure 1 – mismanagement of funding for improvised nuclear
device (IND) countermeasures,
Disclosure 2 – the dumping of beryllium tools in a river,
Activity 3 – an EEO complaint that alleged whistleblower reprisal
pertaining to Disclosure 1,7
Disclosure 4 – misuse of the agency’s 3D printer,
Disclosure 5 – safety concerns surrounding the fumes caused by the
installation of foam tiles, and
Disclosure 6 – his supervisor’s fishing during a work trip.
ID at 29-35. The administrative judge found that the appellant met his burden of
proving that Disclosure 1, Disclosure 2, Activity 3, and Disclosure 5 were
protected, but failed to do the same for Disclosure 4 or Disclosure 6. ID at 29-35.
The appellant disagrees with respect to Disclosures 4 and 6, while also arguing
that the administrative judge ignored some other protected activities. PFR File,
Tab 43-45. We will address each in turn.
Disclosure 4
On review, the appellant describes Disclosure 4 as consisting of him asking
a coworker, “Hey [], when [were] you going to tell me you broke the printer?”
PFR File, Tab 12 at 43. This question occurred at the start of the January 2, 2019
altercation underlying the agency’s removal action. See, e.g., IAF, Tab 4 at 34,
Tab 5 at 63-65; ID at 16-20.
7 When discussing this matter, the administrative judge correctly referenced the WPEA
provision that protects an individual such as the appellant from reprisal for “the
exercise of any appeal, complaint, or grievance right granted by any law, rule, or
regulation, [] with regard to remedying a violation of [section 2302(b)(8)]”). ID at 33;
5 U.S.C. § 2302(b)(9)(A)(i). However, the initial decision otherwise described the
appellant’s EEO complaint alleging whistleblower reprisal as a “protected disclosure.”
ID at 33-34. To be most accurate and clear, we are labeling the matter as “Activity 3,”
rather than “Disclosure 3,” since this is an activity protected under
section 2302(b)(9)(A)(i), rather than a disclosure protected under section 2302(b)(8).7
A protected disclosure is a disclosure that an appellant reasonably believes
evidences a violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285, ¶ 18 (2013). 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 of the categories of wrongdoing listed in section 2302(b)(8)(A). Id.
The appellant need not prove that the matter disclosed actually established one of
the types of wrongdoing listed under section 2302(b)(8)(A); rather, the appellant
must show that the matter disclosed was one which a reasonable person in his
position would believe evidenced any of the situations specified in 5 U.S.C.
§ 2302(b)(8). Id.
The administrative judge found that the appellant failed to prove
Disclosure 4 was protected because he did not establish that there was any related
agency rule and because the appellant had asked the coworker a question, rather
than disclosing the type of wrongdoing covered under the statute. ID at 34. The
appellant disagrees, pointing us to hearing testimony. PFR File, Tab 12 at 25-27,
43-44 (referencing HT2 at 94-95, 182-83; HT3 at 94, 102). According to the
appellant, this hearing testimony proved that his coworker “violated workplace
rules about getting training and permission to use the 3D printer and to report
damage to that printer.” Id. at 43.
We are not persuaded. Despite the appellant’s suggestion to the contrary,
his question did not clearly implicate any identifiable violation of law, rule, or
regulation. Compare Salerno v. Department of the Interior , 123 M.S.P.R. 230,
¶ 6 (2016) (recognizing that disclosures must be specific and detailed, not vague
allegations of wrongdoing), with Ayers v. Department of the Army ,
123 M.S.P.R. 11, ¶ 24 (2015) (recognizing that an individual need not identify a
statutory or regulatory provision by a particular title or number “when the8
statements and the circumstances surrounding the making of those statements
clearly implicate an identifiable violation of law, rule, or regulation”) (quoting
Langer v. Department of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001)).
The hearing testimony the appellant has cited, including his own, shows
that the appellant had some informal authority regarding care for the 3D printer.
HT2 at 94-95 (testimony of Technician), 182-83 (testimony of the appellant);
HT3 at 94, 102 (testimony of Branch Manager). But other evidence, including
the appellant’s response to his proposed removal, shows that the coworker
contacted “the Code D25 lead when it comes to the 3D printers” as the
malfunction occurred, who relayed the information to the appellant, leading to the
appellant’s alleged disclosure 2 days later. IAF, Tab 5 at 28, 63. According to
subsequent notes from interviews with the appellant, the coworker, and their
differing supervisors about the confrontation, the cause of the malfunction was
unknown. Id. at 63. The notes further indicate that written instructions would be
added near the 3D printer, indicating that any future malfunction should be
reported to the appellant, presumably because there were no such instructions at
the time. Id. at 64.
These circumstances show that the appellant did not have a reasonable
belief that he was making the type of disclosure protected by the whistleblower
statute as he asked, “when [were] you going to tell me you broke the printer?”
This is particularly so because the coworker was not within the same chain of
command as the appellant, there was no written or otherwise clearly established
and implicated rule about the 3D printer at the time, and the appellant knew that
the coworker had immediately alerted a third party about the printer’s
malfunction, who then relayed the information to the appellant. The coworker
did not hide the malfunction, leave it to languish, or engage in any other
impropriety. The appellant’s reliance on cursory testimony indicating that
individuals were supposed to “go through” him for 3D printing or “let [him]
know” in the case of a malfunction do not persuade us otherwise. E.g., HT2 at 959
(testimony of Technician); HT3 at 94 (testimony of Branch Manager). When the
appellant asked his coworker about the 3D printer, he may have been vaguely
implying some sort of wrongdoing, and he was certainly initiating what would
become some of the misconduct relied upon in this removal action. He was not,
however, making a protected disclosure.
Disclosure 6
To recall, the appellant’s removal was also based on an altercation he had
with his first-line supervisor, on October 24, 2019, which stemmed from the
supervisor taking a project away from the appellant. Supra p. 2. Later that day,
the first-line supervisor emailed the appellant. Among other things, this email
message reiterated that he was taking the project away from the appellant because
he did not find the appellant’s work on the matter acceptable. IAF, Tab 30 at 7.
In an email response, the appellant copied several management officials.
Id. at 6. Among other things, the appellant asserted that his supervisor had failed
to provide any guidance for the project, so he had performed under the guidance
he received from others during a conversation in which the supervisor was not
involved, “because [the supervisor] left before noon to go fishing (having spent
only 2 hours with the warfighter) on what was supposed to be a two-day trip to
Virginia Beach.” Id. at 6. That statement about his supervisor fishing is
Disclosure 6.
The circumstances surrounding this disclosure are further detailed in the
initial decision. ID at 7-9, 34-35. Generally speaking, the appellant and his
first-line supervisor had attended a meeting in Virginia Beach. ID at 7, 9. The
appellant drove home after the meeting. Id. His first-line supervisor, who had a
longer drive ahead of him, did not. Having driven 5 hours to Virginia Beach and
attended the 2-hour meeting, the appellant’s supervisor stuck with his previously
made plan to stay overnight and drive home the next day. ID at 7. The limited
but seemingly uncontradicted evidence about the remainder of the supervisor’s
day was testimony indicating that he teleworked for 1 additional hour, before10
fishing off a local pier during his off-duty time. HT3 at 25 (testimony of
deciding official), 125 (testimony of supervisor).
The administrative judge did not find Disclosure 6 protected. ID at 34-35.
Among other things, she noted that the appellant’s subsequent descriptions about
the disclosure, while facing removal, grossly overstated its actual contents. ID
at 7-8, 35; see IAF, Tab 5 at 31, 34. She also found the first-line supervisor’s
testimony about the trip credible, while the appellant’s disclosure and subsequent
statements about the matter were inconsistent and embellished. ID at 9, 34-35.
On review, the appellant has characterized Disclosure 6 as protected
because it revealed time and attendance fraud. PFR File, Tab 12 at 45. In his
brief argument about the same, the appellant asserts that the administrative judge
improperly relied on the timing and motive for the disclosure to find that it was
not protected. Id. (citing 5 U.S.C. § 2302(f)(1)(C), (G) (providing that a
disclosure is not excluded from protection because of an individual’s motive or
the time passed since the alleged wrongdoing)). We disagree.
The administrative judge did not find that the appellant’s motive or timing
precluded him from proving that Disclosure 6 was protected. She instead found
that the appellant’s motive, timing, and other circumstances showed that he did
not have a reasonable belief that he was disclosing the type of wrongdoing
covered by the whistleblower statute. See, e.g., Ayers, 123 M.S.P.R. 11, ¶ 20
(recognizing that a disclosure is not excluded from protection based on an
appellant’s motive in making it, but motive may be relevant to the determination
of a reasonable belief). Among other things, the circumstances included his
actual disclosure, followed by his inconsistent recasting of the disclosure as
revealing something more nefarious, without any substantive support. Put
another way, although the appellant has now characterized his disclosure as one
of time and attendance fraud, he has not directed us to any reason why he would
have believed that the supervisor engaged in fraud, as opposed to him following
whatever time, attendance, travel, or telework rules might apply to the11
circumstances—where the supervisor had driven 5 hours to attend a 2-hour
meeting and would need to drive back either the same day or the next. See, e.g.,
Ramos v. Department of the Treasury , 72 M.S.P.R. 235, 240-41 (1996) (finding
that an individual’s disclosure was based purely on speculation, not a reasonable
belief of illegal activity, so it was not protected); Sobczak v. Environmental
Protection Agency , 64 M.S.P.R. 118, 122 (1994) (an appellant’s disclosure does
not satisfy the reasonable belief requirement if he is merely reporting unsupported
speculation). Accordingly, we agree with the administrative judge’s
determination that the appellant failed to meet his burden for Disclosure 6.
Additional activities
The appellant’s petition for review next includes a single paragraph,
asserting that the administrative judge ignored additional activity protected by
section 2302(b)(9). PFR File, Tab 12 at 45. He describes this as including his:
Refusing to falsify his travel record to support the 2-day trip to
Virginia Beach;
Refusing to work around the noxious fumes caused by the
installation of foam tiles;
Participating in an NCIS investigation; and
Participating in his EEO claim.
Id. As further detailed below, we are not persuaded.
Section 2302(b)(9)(D) protects an individual such as the appellant from
reprisal for their “refusing to obey an order that would require the individual to
violate a law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(D). Citing that
provision, the appellant asserts that he engaged in protected activity by refusing
to falsify his travel record and by refusing to work around noxious fumes. PFR
File, Tab 12 at 45. Yet, regarding his purported refusal to falsify a travel record,
the appellant does not refer us to any supportive evidence. Id. (referencing ID
at 7). Instead, the appellant has merely alluded to the administrative judge’s
discussion of how the appellant’s testimony and written statements about the12
circumstances surrounding the Virginia Beach trip were inconsistent and not
credible. ID at 7-9. Without more, we will not pour over the voluminous record
in search of preponderant evidence that the appellant received and refused to obey
an order to falsify his travel record. See 5 C.F.R. § 1201.114(b) (providing that a
petition for review should include all of a party’s factual and legal arguments,
and it must be supported by specific references to the record). This is particularly
so because the administrative judge did not find the appellant’s version of events
surrounding this incident credible, and those findings are entitled to deference.
See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372 -73 (Fed. Cir.
2016) (concluding that the Board must defer to an administrative judge’s
credibility determinations even when she relies on demeanor “by necessary
implication”); Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir.
2002) (explaining that the Board must defer to an administrative judge’s
credibility determinations when, as here, they are based, explicitly or implicitly,
on observing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so).
Similarly, the appellant’s assertion that he refused to work around noxious
fumes caused by the installation of foam tiles is unavailing. He has merely
referred to us a statement of facts from his attorney, which does not constitute
preponderant evidence. PFR File, Tab 12 at 45 (referencing IAF, Tab 16
at 10-11); see Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995)
(finding that statements of a party’s representative in a pleading do not constitute
evidence). Moreover, although the appellant has repeatedly described his
concerns about the noxious fumes, we found no reason to find that the appellant
“refus[ed] to obey an order that would require [he] violate a law, rule, or
regulation” in connection with the fumes. 5 U.S.C. § 2302(b)(9)(D). We also
note that this allegation goes hand in hand with Disclosure 5, which the
administrative judge found protected. The appellant has not explained, and we13
discern no reason, why protection under sections 2302(b)(8) and 2302(b)(9)(D)
for the same basic set of facts would warrant a different result than protection
under only the former provision. 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).
Regarding the appellant’s assertion that “[h]is participation in the NCIS
investigation is protected by 5 U.S.C. § 2302(b)(9)(C),” PFR File, Tab 12 at 45,
the appellant has provided no argument and no reference to the record.
Accordingly, the bare assertion is unavailing. To the extent the appellant is
referring to the contact he had with NCIS about Disclosure 1, as discussed in the
initial decision, e.g., ID at 30-31, the administrative judge found this set of
disclosures protected by section 2302(b)(8) and it is not apparent how protection
under section 2302(b)(9)(C), if warranted, would require any different result in
this appeal.
Regarding the appellant’s assertion that “his participation in his EEO case
is protected by 5 U.S.C. § 2302(b)(9)(A)(i) because it alleged retaliation,” PFR
File, Tab 12 at 45, again the appellant provides no further argument and no
reference to the record. He has not, for example, identified the EEO complaint to
which he may be referring, nor has he provided us with any showing that it
sought to remedy an alleged violation of section 2302(b)(8), as required under the
provision he cited. As we previously noted, the administrative judge
characterized one EEO complaint by the appellant as a “protected disclosure,”
when it is more accurately described as protected activity under
section 2302(b)(9)(A)(i). Supra note 7. If this is the EEO complaint to which the
appellant is alluding, the administrative judge did not ignore the matter. She
found it protected. Accordingly, we will not address the appellant’s assertion any
further.14
The appellant established the contributing factor criterion for Disclosure 5, but no
other protected disclosure or activity.
The administrative judge found that although the appellant proved that
Disclosure 1, Disclosure 2, and Activity 3 were protected, he did not prove that
they were a contributing factor in his removal.8 ID at 35-37. For Disclosure 5,
the administrative judge did not explicitly state that the appellant proved the
contributing factor element, but she seemed to imply as much. ID at 37-38; see
Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 28 (2016) (recognizing
that it is inappropriate for an administrative judge to determine whether an
agency can meet its burden in a whistleblower reprisal claim unless the appellant
has first met his burden of establishing a prima facie case). As further detailed
below, we modify the initial decision to explicitly find that the appellant proved
the contributing factor criterion for Disclosure 5, but no other protected
disclosure or activity.
Contributing factor – Disclosure 5
One way to establish the contributing factor criterion is the
knowledge/timing test, under which an employee may establish that his protected
disclosure or activity was a contributing factor in the contested personnel action
through circumstantial evidence, such as evidence that the official taking the
personnel action knew of the disclosure or 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.
Salerno, 123 M.S.P.R. 230, ¶ 13. If an appellant fails to satisfy the
knowledge/timing test, the Board must consider other evidence, such as that
8 We recall that Disclosure 1 concerned the alleged mismanagement of funds for
improvised nuclear device (IND) countermeasures, while Activity 3 was an EEO
complaint that alleged reprisal for Disclosure 1. Supra p. 7. The administrative judge
did not distinguish between the two when analyzing the contributing factor element of
the appellant’s burden; she instead referred only to “disclosures regarding the IND
countermeasures funding.” ID at 36. It seems apparent, though, that her analysis and
conclusion applied to both, consistent with her prior description of both as “protected
disclosures.” ID at 33-34, 36; supra p. 7.15
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 official, and whether those individuals had a desire or
motive to retaliate against the appellant. Rumsey v. Department of Justice ,
120 M.S.P.R. 259, ¶ 26 (2013).
Although the administrative judge did not explicitly find that the appellant
proved the contributing factor criterion for Disclosure 5, we do. This set of
disclosures consisted of the appellant voicing concerns about toxic fumes that
were being generated during the installation of some foam panels in an area near
his workspace, causing him headaches and possibly endangering others as well.
E.g., IAF, Tab 5 at 60-61. The administrative judge provided an extensive
discussion of the surrounding circumstances, including both the appellant’s
disclosures and his surrounding conduct, some of which the agency relied on for
its removal action. E.g., ID at 9-16. Among other things, she correctly noted that
the appellant made the disclosure and then relayed it to multiple people, including
his first-line supervisor and the proposing official, all within months of his
proposed removal. IAF, Tab 4 at 31, Tab 5 at 61. Accordingly, we find that the
knowledge/timing test is satisfied for Disclosure 5, thereby proving that it was a
contributing factor in the appellant’s removal.
Contributing factor – Disclosure 1, Disclosure 2, & Activity 3
The administrative judge found that the appellant did not prove the
contributing factor criterion for Disclosure 1, Disclosure 2, or Activity 3. ID
at 36-37. In doing so, she noted that each occurred 5 or more years prior to his
removal, and she found that the appellant failed to establish any connection
between them and the individuals involved in his removal. Id.
On review, the appellant presents several arguments about his burden of
proving contributing factor. PFR File, Tab 12 at 45-57. He first argues that the
administrative judge erred by assessing contributing factor for each of his
protected disclosures or activities, individually, rather than doing so collectively.16
Id. at 46-47. However, the appellant has not identified any persuasive support for
analyzing his claim in that way. He has instead referred us to a single Circuit
Court decision, which concluded that several discrete acts should be considered
together for purposes of deciding whether an individual had engaged in the kind
of activity covered under the opposition clause of Title VII. Id.; Demasters v.
Carilion Clinic , 796 F.3d 409, 416-17 (4th Cir. 2015). That conclusion is
unrelated to the WPEA and its contributing factor requirement. Under the burden
shifting scheme of a WPEA, the Board analyzes the contributing factor element
for each protected disclosure or activity, individually. See, e.g., Shannon v.
Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 32 (2014) (remanding an
appeal with instructions that, for each disclosure the administrative judge finds
protected, she must then determine whether the disclosure was a contributing
factor in the contested personnel action).
The appellant next references portions of the proposal and the decision
letters for his removal, along with hearing testimony, which described him as
having a history of outbursts or interpersonal conflicts dating back many years
prior to the charged misconduct underlying the removal action. PFR File, Tab 12
at 46-51. To the best that we understand, the appellant is arguing that we should
construe those references as including his protected disclosures or activities,
thereby satisfying the contributing factor element of his burden. Id. However,
we are not persuaded. Although the appellant pointed us to general references
that he had a history of behavior that the agency found objectionable during the
time that preceded the charged misconduct, he has not pointed us to any instance
of that encompassing any of his protected disclosures or activities, and we will
not make assumptions about the same.
Relatedly, the appellant recounts how the agency described the misconduct
cited in its charge as disruptive and causing others to feel unsafe around him.
PFR File, Tab 12 at 51-55. He then suggests that this proves the contributing
factor element or his reprisal claim, generally, because whistleblowing is17
inherently disruptive. Id. Again, we are not persuaded. Despite the appellant’s
suggestion to the contrary, we find no reason to conclude that the agency’s stated
opposition to the disruption and fear caused by the appellant’s conduct—which
culminated with his angrily punching equipment and then getting within inches of
his supervisor’s face while yelling—meaningfully adds to his burden of proving
the contributing factor criterion or his reprisal claim. See generally Hamilton v.
Department of Veterans Affairs , 115 M.S.P.R. 673, ¶ 12 (2011) (recognizing that
a disclosure is still entitled to protection if stated bluntly, but this is not a general
license for bad behavior—the character and nature of the disclosure can still be a
legitimate basis for discipline).
The appellant’s remaining arguments concerning the contributing factor
element are similarly unavailing. PFR File, Tab 12 at 54-57. For example, the
appellant further suggests that we should find the knowledge/timing test satisfied
for purposes of Disclosure 1, Disclosure 2, & Activity 3, all of which occurred
many years before his removal, simply because the knowledge/timing test is
satisfied for Disclosure 5. Id. at 54-55. He also characterizes his employment
history as including a pattern of antagonism spanning his years of protected
disclosures and activity, and he contends that the agency deviated from normal
practices with respect to his removal. Id. at 55-56. Although we have considered
each of the appellant’s contributing factor arguments, we do not find them
persuasive. The appellant established a prima facie case of reprisal with respect
to Disclosure 5, but he failed to do so for any other disclosure or activity.
The agency proved that it would have removed the appellant in the absence of
Disclosure 5.
After finding that the appellant presented a prima facie case of
whistleblower reprisal concerning Disclosure 5, the administrative judge shifted
the burden and found that the agency proved that it would have taken the same
removal action against the appellant in the absence of his protected disclosure.18
ID at 38-40. On review, the appellant challenges this finding. PFR File, Tab 12
at 57-68.
In determining whether the agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of a
protected disclosure, the Board generally 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’s officials who
were involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who did not engage in whistleblowing but who are
otherwise similarly situated. See Carr v. Social Security Administration ,
185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board must consider all pertinent
record evidence in making this determination. Whitmore v. Department of Labor ,
680 F.3d 1353, 1368 (Fed. Cir. 2012). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence. Phillips v. Department of Transportation , 113 M.S.P.R. 73, ¶ 11
(2010). Rather, the Board will weigh the factors together to determine if the
evidence is clear and convincing as a whole. Id.
Although the administrative judge acknowledged the applicable standard,
she provided only a brief analysis that does not explicitly address any of the Carr
factors. ID at 38-40. Accordingly, we modify the initial decision by
supplementing the analysis as follows.
The agency’s evidence in support of its removal action, which was based
on incidents in January, June, and October 2019, is strong. While sustaining the
agency’s charge, the administrative judge described the various documentary and
testimonial evidence pertaining to each incident. ID at 4-9 (October 24 incident),
9-16 (June 4 incident), 16-20 (January 2 incident and accompanying reports).
Among other things, this included contemporaneous documentation about each,
reflecting a pattern of increasingly discourteous, aggressive, and even violent
behavior by the appellant. IAF, Tab 4 at 46-47, Tab 5 at 12-18, 58-59, 63-64. 19
We recognize that only one of the three individuals targeted by the
appellant’s conduct during these incidents testified at the hearing, but each
lodged a complaint about the appellant and cooperated in the agency’s
investigations of the matters at the time. See Phillips, 113 M.S.P.R. 73, ¶ 12
(explaining that, when applying the first Carr factor, the Board will consider the
weight of the evidence that was before the agency when it acted). Plus, the
appellant’s responses to these incidents largely deflected blame rather than
substantively or persuasively denying that he had engaged in the alleged
misconduct. IAF, Tab 5 at 25-38, 60 -62. To the extent that the appellant did
dispute the alleged misconduct, the administrative judge made well-reasoned
credibility findings in favor of the agency’s version of events, rather than the
appellant’s, which we adopt. ID at 4-20.
Conversely, the evidence suggests that the motive to retaliate was not
particularly strong. Disclosure 5 consisted of the appellant expressing safety
concerns about the 2- or 3-day installation of foam panels near his workspace, as
it related to remedial measures for ventilating the fumes caused by an adhesive.
E.g., IAF, Tab 5 at 12-18, 60-62. This set of disclosures was primarily directed at
a coworker overseeing the project, under a different chain of command, who had
accommodated remedial measures for the fumes that the appellant deemed
inadequate. Id. at 60-62. Nonetheless, this set of disclosures implicated
management as well, including the proposing and deciding officials, who the
appellant described as ignoring his complaints. Id. at 61. However, by the
appellant’s own telling, it seems as if everyone implicated by Disclosure 5 either
disagreed with appellant and thought the remedial measures implemented for the
fumes were sufficient, or they had minimal interest in the matter. Id. at 60-61.
The evidence of record does not suggest that they were concerned or had reason
to be concerned that Disclosure 5 cast them in an especially unfavorable light. In
other words, the record supports a conclusion that Disclosure 5 might cause some20
motive to retaliate, but not so much so that it causes us to doubt that the agency’s
removal action.
As for evidence that the agency takes similar actions against employees
who did not engage in whistleblowing but who are otherwise similarly situated,
there appears to be none. When testifying about the choice of penalty, the
deciding official testified that she was not aware of anyone similarly situated.
HT3 at 31 (testimony of deciding official). Accordingly, this factor is not a
significant one. Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 20
(2016).
As supplemented by this analysis to further consider and weigh these
factors, we agree with the administrative judge’s conclusion that the agency met
its burden. It proved by clear and convincing evidence that it would have taken
the same removal action in the absence of the appellant’s protected disclosure,
given the strength of its evidence showing a pattern of increasingly unacceptable
behavior and limited motive to retaliate.
We have considered each of the appellant’s numerous arguments to the
contrary, but we are not persuaded by any. For example, the appellant faults the
agency for not calling some witnesses, including the targets of his discourteous
behavior for the January and June incidents, during his Board appeal. PFR File,
Tab 12 at 57-58. But this erroneously conflates the strength of the agency’s
evidence in support of its removal action, at the time, with the evidence it put on
to prove its charge before the Board. Phillips, 113 M.S.P.R. 73, ¶ 12. As we
have discussed, the witnesses to which the appellant is referring filed complaints
about the appellant’s behavior, characterizing it as harassment, bullying, and
cause for concern that the appellant would turn violent. E.g., IAF, Tab 5
at 12-18, 63-64.
The appellant also notes that the target of his discourteous behavior in June
was similarly found to be discourteous but received no punishment at all. PFR
File, Tab 12 at 58; see IAF, Tab 5 at 58-59. However, the appellant was not21
removed because of that single incident or any single lapse in judgment—he was
removed based on a pattern of behavior that culminated in his violent punching of
equipment and aggressively getting in the face of his supervisor. E.g., IAF, Tab 4
at 32-34, Tab 5 at 47, 52; HT3 at 14-16 (testimony of deciding official). The
appellant’s other arguments about the agency’s burden are similarly mistaken, as
they relate to other arguments we already dismissed or they are otherwise
unavailing.
The appellant failed to prove his claim of disability discrimination.
The appellant characterized his disability discrimination affirmative
defense, which the administrative judge found unavailing, as a failure to
accommodate claim below. PFR File, Tab 12 at 68-70; ID at 21-24. However,
his petition for review states that the only accommodation he needed was to not
be fired. Compare PFR File, Tab 12 at 68-70, with IAF, Tab 16 at 13.
It seems that the appellant’s current theory of this affirmative defense is
that he was subjected to disparate treatment because the agency’s removal action
was based on his posttraumatic stress disorder (PTSD). PFR File, Tab 12
at 68-70.9 It is worth noting that the appellant’s final outburst, where he punched
equipment and got in the face of his supervisor, occurred on October 24, 2019.
E.g., IAF, Tab 4 at 46. Days later, on October 31, 2019, the appellant met with a
third party to discuss this and other issues. IAF, Tab 5 at 25, 35; HT2 at 208-15
9 The appellant separately seems to assert that the agency erred by refusing to consider
whether PTSD affected his behavior. PFR File, Tab 12 at 68-69. He quotes the
deciding official, who testified that “PTSD or no PTSD or any other kind of condition,
[the appellant’s] behavior was unacceptable.” Id. at 69 (referencing HT3 at 66
(testimony of deciding official)). To the extent that the appellant is suggesting that a
diagnosis of PTSD could excuse his misconduct, he is mistaken. See, e.g., Burton v.
U.S. Postal Service , 112 M.S.P.R. 115, ¶ 16 (2009) (explaining that the Americans with
Disabilities Act does not immunize disabled employees from discipline for misconduct,
provided the agency would impose the same discipline on an employee without a
disability); Fitzgerald v. Department of Defense , 85 M.S.P.R. 463, ¶ 4 (2000)
(recognizing that an agency is never required to excuse a disabled employee’s violation
of a uniformly-applied, job-related rule of conduct, even if the employee’s disability
caused the misconduct).22
(testimony of appellant). Immediately thereafter, he had a breakdown, crying,
hyperventilating, and voluntarily leaving work by ambulance to seek mental
health treatment. IAF, Tab 5 at 25, 35; HT2 at 208-15 (testimony of appellant).
In a letter dated the next day, November 1, 2019, the proposing official
placed the appellant on administrative leave. IAF, Tab 5 at 8-9. Then, on
November 4, 2019, the Commanding Officer for Naval Support Activity South
Potomac barred the appellant from the facility on which he normally worked,
citing an otherwise unexplained “pending investigation.” Id. at 10. He renewed
that prohibition 20 days later, citing the appellant’s “threatening actions, anger
management issues, self-admitted [PTSD], and severe anxiety.” Id. at 11.
The proposing official then issued its proposal to remove the appellant a
couple of months later, in February 2020. IAF, Tab 4 at 31. While discussing the
events of October 24, 2019, the proposal recognized the events that followed,
including the appellant’s emotional breakdown, without mentioning any health
condition. Id. at 32-33. But the appellant explicitly discussed PTSD in his
response to the proposed removal, indicating that he had just begun counseling
for the same. IAF, Tab 5 at 36.
As best as we understand his arguments on review, the appellant is
asserting that if it were not for his emotional breakdown and associated disclosure
of his PTSD, the Commanding Officer for Naval Support Activity South Potomac
would not have barred him from the base and the proposing and deciding officials
would not have moved forward with his removal.10 PFR File, Tab 12 at 68-70.
The administrative judge concluded the record did not show that his
removal was based on any disability, or that he was medically unable to perform
in his position. ID at 22-23. She further concluded that the appellant failed to
10 Below, the administrative judge considered the appellant’s PTSD, but also his
reported hypertension and hearing loss with tinnitus. ID at 22-23. However, the
appellant’s petition exclusively relies on his PTSD. PFR File, Tab 12 at 68-70. He
seems to have abandoned any argument about hypertension or hearing loss having any
relation to his removal or disability discrimination claim. Id. Accordingly, our analysis
is similarly focused on PTSD.23
prove that he was actually disabled or regarded as disabled. ID at 23-24.
Specific to PTSD, the administrative judge indicated that the appellant presented
a Department of Veterans Affairs decision, from 2007, giving him a 10%
service-connected disability rating for “PTSD with insomnia,” but no treatment
records or other documentation. Id. at 22, 24; IAF, Tab 26 at 10-12.
As further detailed below, we vacate the administrative judge’s finding that
the appellant did not have a disability. We instead find that, even if the appellant
had a disability, as that term is defined by the statute, the appellant failed to meet
his burden of proving that a disability was a motivating factor in his removal.
To prove his disability discrimination claim, the appellant must first
establish that he is an individual with a disability as that term is defined in the
Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and Equal
Employment Opportunity Commission regulations. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 37. He may prove that he has a
disability by showing that he: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record of such
impairment; or (3) is regarded as having such an impairment. Id. (citing
42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1)). The determination of whether a
condition is substantially limiting is made by comparing the ability of the
allegedly disabled individual to “most people in the general population.” Id.
(citing 29 C.F.R. § 1630.2(j)(1)(ii)). The “substantially limits” standard is not
“demanding,” and is intended to “be construed broadly in favor of expansive
coverage.” Id. (citing 29 C.F.R. § 1630.2(j)(1)(i)).
Again, for the asserted PTSD, the record includes the 2007 service-
connected disability decision from the Department of Veterans Affairs, which
indicates that the appellant had once received 4 months of pharmacological
treatment, but none other. IAF, Tab 26 at 12. Then, in his response to the
proposed removal in 2020, the appellant indicated that he had just started his
first-ever counseling for PTSD. IAF, Tab 5 at 36. 24
The appellant provided further explanation of his PTSD at the hearing.
E.g., HT2 at 103 (testimony of appellant). Among other things, he described this
condition as associated with the trauma of his past work investigating mass
casualty events caused by improvised explosive devices. Id. at 103-06. The
appellant characterized his PTSD as including sleeplessness, flashbacks, and
short-temperedness. Id. at 106-08.
We recognize that the administrative judge found the appellant’s testimony
not credible in many regards, including his claims about a hearing impairment.
E.g., ID at 6, 8-9, 16, 22-23. However, she did not make explicit credibility
findings concerning the appellant’s testimony about PTSD. Accordingly, the
record seems to include limited but uncontradicted evidence of the appellant
having PTSD, along with a few instances of the agency and the appellant
referencing this PTSD in the period surrounding his removal.
Assuming that this suffices for purposes of establishing the appellant had a
disability, as that term is defined, his burden does not end there. For a disability
discrimination claim based on disparate treatment, the Board applies the same
analytical framework as discrimination claims arising under Title VII. Pridgen,
2022 MSPB 31, ¶¶ 40, 42. The Board will first inquire whether the appellant has
shown by preponderant evidence that the prohibited consideration was a
motivating factor in the contested personnel action. Id., ¶¶ 20-21, 42. Such a
showing is sufficient to establish that the agency violated the anti-discrimination
law. Id. If the appellant meets this burden, we will then determine whether the
agency still would have taken the contested action in the absence of the
discriminatory motive. Id., ¶¶ 22, 42.
As mentioned above, the agency’s second decision to prohibit the appellant
from entering the facility in which he worked explicitly indicated that it was
based on his “threatening actions, anger management issues, self-admitted
[PTSD], and severe anxiety.” IAF, Tab 5 at 11. However, the administrative
judge found that there was no evidence of the proposing official, deciding25
official, or anyone else at the Indian Head facility in which the appellant worked
having any involvement in this decision by the Commanding Officer, Naval
Support Activity South Potomac, who oversaw multiple facilities. ID at 24.
Moreover, the question at hand is whether the appellant’s removal was based on
his disability, not his debarment. Supra p. 25. With that in mind, we find the
debarment letter notable, but not dispositive.
We further find it more likely than not that the agency’s removal action
was exclusively motivated by the appellant’s behavior. To the extent that agency
officials acknowledged the appellant’s PTSD in concert with his removal, they
did so while recognizing that the appellant had raised the matter and while
considering whether it was a mitigating circumstance. IAF, Tab 4 at 39, Tab 5
at 52-53. Conversely, the proposal and decision letters are filled with indications
that the appellant’s behavior over the prior decade had consisted of a pattern that
included misconduct, intervention by management, a period of improvement, then
more misconduct. E.g., IAF, Tab 4 at 31-36. Among other things, the agency
contended that this included increasingly worrisome intimidation of coworkers
and supervisors alike, racial slurs, demeaning comments, yelling, anger, rage, and
other indicators of potential violence. Id.
This is not simply announced in the proposal and decision letters. The
claims are bolstered by other evidence covering many years. For example, the
individual who supervised the appellant between 2015 and early 2019 testified
that his troubles with the appellant began on the very first day of their supervisor/
subordinate relationship, when the appellant caused another employee to cry.
HT3 at 92-93 (testimony of prior supervisor). He further testified that the
appellant had “at least four” other altercations with which he had to deal. Id.
at 93. The record also includes a memorandum from this prior supervisor, dated
February 2019, indicating that he had been approached by two agency employees,
one of whom was another manager, fearful that the appellant had been displaying
characteristics of an active shooter. Id. at 94-95; IAF, Tab 5 at 65. At the26
hearing, this prior supervisor responded in the affirmative when asked if he was
concerned that the appellant might intentionally try to hurt his coworkers. HT3
at 111 (testimony of prior supervisor).
The appellant’s subsequent supervisor—the one involved in the October
2019 incident—provided similar testimony about his relatively brief time
managing the appellant. E.g., HT3 at 119-20 (testimony of supervisor). He
described the appellant as erratic and difficult. Id. at 121. Specific to the
October 2019 incident, he indicated that the appellant acted in a way he had never
seen in his 20-year tenure as a supervisor. Id. at 122-23. The supervisor further
characterized the appellant as causing him fear for his physical safety and
consistent with his training about actions associated with active shooters. Id.
Similarly, the individual targeted by the appellant’s ire during the June 2019
incident described the appellant as exhibiting rage that caused him concern for
potential workplace violence. IAF, Tab 5 at 12.
To the extent that the appellant’s immediate supervisors were questioned
about the appellant having PTSD, neither provided any indication that they knew
of this disability prior to him raising the matter in connection with his final act of
misconduct and the resulting removal action. E.g., HT3 at 98 (testimony of prior
supervisor), 123 -24, 126 (testimony of supervisor). The deciding official testified
that the appellant’s disability played no role in her decision, and she only learned
of his PTSD after he was placed on administrative leave.11 E.g., id. at 19, 22-23
(testimony of deciding official). Her testimony is consistent with the agency
finding the October 2019 incident between the appellant and his supervisor to be
the most worrisome and the final straw, requiring his removal. E.g., id. at 14-18.
Turning back to the debarment letter, the Security Director overseeing the
facility in which the appellant worked testified as well. HT3 at 140 (testimony of
Security Director). Among other things, he indicated that the appellant’s
management chain approached him in late October 2019, to describe the incident
11 The proposing official did not testify. ID at 37.27
involving the appellant and his direct supervisor that had just occurred. Id.
at 140. The Security Director described elevating this issue to Naval Support
Activity South Potomac—the entity responsible for the appellant’s debarment
from the facility—who then investigated by, inter alia, interviewing the
appellant. Id. at 141-42. The Security Director attributed the appellant’s initial
debarment to the October 2019 altercation with his supervisor. Id. at 148-49.
When asked about the extension of this debarment, and its reference to PTSD, the
Security Director indicated that this was not part of the input he provided to
Naval Support Activity South Potomac. Id. at 141-43. He therefore implied that
the “self-admitted [PTSD], and severe anxiety” referenced in the Naval Support
Activity South Potomac second debarment letter was something that outside
entity had discovered and relied upon independently.
Based on this and other evidence, we do not find that the appellant has
proven that the agency’s removal action was improperly motivated by a
disability. Although the appellant may have informed agency officials that he has
PTSD in the period between his October 2019 altercation and the February 2020
proposal to remove him from service, there is not preponderant evidence that the
appellant’s purported PTSD motivated his removal. Instead, we find it more
likely than not that the proposal and decision to remove the appellant were based
solely on his increasingly unacceptable behavior, which had just culminated in his
most unacceptable outburst to date.
The agency’s choice of penalty was reasonable.
The appellant presents a brief argument about the agency’s chosen penalty.
PFR File, Tab 12 at 70-71. Where all of an agency’s charges are sustained, as
they are here, 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. Powell v.
U.S. Postal Service , 122 M.S.P.R. 60, ¶ 12 (2014). In making this determination,
the Board must give due weight to the agency’s primary discretion in maintaining28
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 where it finds the agency failed to weigh the
relevant factors or the penalty clearly exceeds the bounds of reasonableness. Id.
The administrative judge recognized this standard and found that the
agency met its burden of proving that removal was a reasonable penalty. ID
at 46-48. On review, the appellant briefly disagrees. PFR File, Tab 12 at 70-71.
He seems to suggest that although the deciding official considered the appellant’s
asserted PTSD and did not find it mitigating due to the lack of supportive
evidence, the record includes uncontested testimony about his PTSD, so we
should find it mitigating. Id. The appellant further asserts that the incidents
relied upon for removing him did not warrant that penalty, given his lengthy
military and civilian service with successful performance. Id.
We have considered these arguments but do not find them persuasive. The
appellant has not shown that the agency failed to consider the relevant factors or
that removal clearly exceeds the bounds of reasonableness. To the contrary, we
find that the mitigating circumstances the appellant asserted do not outweigh
other considerations, such as the nature and seriousness of his misconduct, the
repetitiveness of his inability to get along with others, his limited rehabilitation
potential, and his lack of remorse. E.g., IAF, Tab 5 at 46-53.
The administrative judge did not abuse her discretion by disallowing certain
witnesses.
The appellant’s final argument on review concerns the administrative
judge’s rulings as to requested witnesses. PFR File, Tab 12 at 71. As detailed in
a prehearing conference summary, the appellant requested 18 witnesses. IAF,
Tab 21 at 10. The administrative judge decided that three would not be allowed,
over the appellant’s disagreement and objection. Id.; IAF, Tab 22 at 9-10.29
On review, the appellant reasserts his objection to the administrative
judge’s ruling as to these three requested witnesses. PFR File, Tab 12 at 71. He
presents a cursory explanation for two, but none for the other. Id. We have
reviewed this argument, as well as the appellant’s original explanations of their
expected testimony and his subsequent objection to their disallowance raised
below. IAF, Tab 16 at 31-33, Tab 22 at 9-11. After doing so, we are not
persuaded.
Administrative judges have broad discretion to regulate the proceedings
before them, including the discretion to exclude witnesses. Oulianova v. Pension
Benefits Guarantee Corporation , 120 M.S.P.R. 22, ¶ 12 (2013). We discern no
basis for concluding that the administrative judge’s disallowance of the three
witnesses identified was an abuse of that broad discretion.
To conclude, the appellant’s petition for review reasserts his claims of
harmful error, whistleblower retaliation, and disability discrimination, while also
presenting arguments about the reasonableness of the penalty and the
administrative judge’s disallowance of witnesses.12 PFR File, Tab 12 at 42-71.
Although we have modified the initial decision in some ways, we find that the
appellant’s petition presents no basis for us to reach a different result, and we
affirm the administrative judge’s initial decision.
12 The appellant did not reassert his EEO reprisal claim on review. We note, though,
that the administrative judge’s analysis referred to both the “motivating factor” standard
we previously discussed and a “genuine nexus” requirement. ID at 24-27; supra p. 25.
During the period that followed the initial decision in this appeal, the Board clarified
the proper standard for claims of EEO reprisal, noting that the standard differs
depending on whether the claim arises under Title VII or the ADA. The motivating
factor standard applies to claims of reprisal for engaging in activity protected under
Title VII, while an appellant must prove the more stringent “but-for” causation in the
context of retaliation claims arising under the ADA. Haas v. Department of Homeland
Security, 2022 MSPB 36, ¶ 31.
To the extent that the administrative judge may have applied the wrong analytical
standard, we do not find the error harmful. She made well-reasoned findings of fact
that support a conclusion that the appellant’s prior EEO activity, all of which occurred
more than 5 years before his removal, was neither a motivating factor nor the but for
cause of his removal. ID at 25-27.30
NOTICE OF APPEAL RIGHTS13
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).
13 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.31
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 on32
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) or33
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.14 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
14 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. 34
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.35 | Frericks_LonniePH-0752-20-0355-I-1__Final_Order.pdf | 2024-04-05 | LONNIE FRERICKS v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-20-0355-I-1, April 5, 2024 | PH-0752-20-0355-I-1 | NP |
1,863 | https://www.mspb.gov/decisions/nonprecedential/Stern_Chad_K_NY-1221-20-0098-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHAD KADRI STERN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
NY-1221-20-0098-W-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chad Kadri Stern , Pensacola, Florida, pro se.
Joseph A. Fedorko , Esquire, Washington, D.C., for the agency.
Lane Reeder , Fort Drum, New York, 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 in his individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
(1) supplement the administrative judge’s analysis of the appellant’s hostile work
environment claim in light of recent Board precedent; (2) find that the appellant
established a prima facie case of retaliation for protected activity; and (3) find
that the agency proved by clear and convincing evidence that it would have
terminated the appellant’s authorization to telework in the absence of his
protected activity, we AFFIRM the initial decision.
The appellant filed a complaint with the Office of Special Counsel (OSC)
in 2019 in which he alleged that the agency had taken a number of personnel
actions in retaliation for his protected disclosures and activities. Initial Appeal
File (IAF), Tab 14 at 27-42. In December 2019, OSC informed the appellant of
its preliminary determination to close its investigation into his complaint. Id.
at 53-57. In February 2020, after the appellant had responded to its preliminary
determination, OSC issued a final determination letter closing its investigation
and notifying the appellant of his right to file an IRA appeal with the Board. Id.
at 58-60.
The appellant filed this IRA appeal in February 2020. IAF, Tab 1. He
initially requested a hearing, id. at 2, but he later withdrew that request and
instead requested a decision on the written record, IAF, Tab 40 at 3. The2
administrative judge accepted the following three personnel actions for
adjudication in this appeal, to the exclusion of all others: (1) the incorrect
processing of the appellant’s probationary period; (2) the removal of the
appellant’s authorization to telework; and (3) a hostile work environment. IAF,
Tab 30 at 2. In the initial decision, the administrative judge found that any error
by the agency regarding the appellant’s probationary period was de minimis and
therefore not a covered personnel action. IAF, Tab 48, Initial Decision (ID)
at 6-7. She further found that the appellant’s allegations, even if taken as true,
did not reach the level of a hostile work environment that would constitute a
covered personnel action. ID at 7-8. She found that the discontinuation of the
appellant’s telework was a covered personnel action but that he failed to prove
that action was motivated by any protected disclosures or activities. ID at 8-14.
She therefore denied the appellant’s request for corrective action. ID at 14.
After successfully requesting an extension of time, the appellant filed a
petition for review of the initial decision. Petition for Review (PFR) File,
Tabs 1-3. He challenges a number of the administrative judge’s specific findings
in the initial decision. PFR File, Tab 3 at 7-19. The agency has responded in
opposition to the petition for review. PFR File, Tab 5.
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 his
administrative remedies before OSC and makes nonfrivolous allegations that
(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans3
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Once an appellant establishes
jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his
claim, which he must prove by preponderant evidence. Salerno, 123 M.S.P.R.
230, ¶ 5. If the appellant proves that his protected disclosure or activity was a
contributing factor in a personnel action taken against him, the agency is given an
opportunity to prove, by clear and convincing evidence, that it would have taken
the same personnel action in the absence of the protected disclosure or activity.
Id.; see 5 U.S.C. § 1221(e)(1)-(2).
The appellant established that he was subjected to a personnel action.
The administrative judge found that the removal of the appellant’s
authorization to telework was a personnel action but that neither the incorrect
processing of his probationary period nor the alleged hostile work environment
met the statutory standard. ID at 6-9. For the reasons set forth below, we agree
with the administrative judge’s findings.
Regarding the appellant’s probationary period, the agency initially coded
the appellant’s August 2019 conversion from the excepted service to the
competitive service in such a way that the Standard Form 50 (SF-50)
documenting that conversion indicated that he was required to serve an additional
2-year probationary period. IAF, Tab 46 at 4, Tab 14 at 10. After determining
that the appellant had in fact already completed his probationary period, the
agency issued a corrected SF-50 effective the same day as the original
conversion. IAF, Tab 46 at 4, Tab 14 at 13. The corrected document indicates
that the appellant is a permanent competitive service employee and that his
probationary period has been completed. IAF, Tab 14 at 13.
Under both the WPEA and its predecessor, the Whistleblower Protection
Act (WPA), a “personnel action” is defined to include, among other enumerated
actions not relevant here, “any other significant change in duties, responsibilities,4
or working conditions.”2 5 U.S.C. § 2302(a)(2)(A)(xii). We agree with the
administrative judge that the agency’s temporary failure to correctly document
the appellant’s completion of his probationary period does not meet the statutory
definition of a personnel action. The fact that the appellant’s SF-50 incorrectly
indicated that he was still required to serve a probationary period before it was
corrected retroactively does not constitute a significant change in his duties,
responsibilities, or working conditions.
Although the term “hostile work environment” has a particular meaning in
other contexts, the Board has clarified that such a claim can constitute a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii) when the components of the
claim amount to a significant change in duties, responsibilities, or working
conditions. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16.
Thus, although the “significant change” personnel action 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 and significant effects on the
overall nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
section 2302(a)(2)(A)(xii). Skarada, 2022 MSPB 17, ¶ 16 .
In the initial decision, the administrative judge, who did not have the
benefit of the Board’s decision in Skarada, relied, in part, on case law relevant to
establishing a hostile work environment under Title VII. ID at 7-8. In light of
Skarada, however, reliance on Title VII standards to determine whether agency
actions amount to a personnel action that may be the subject of an IRA appeal is
incorrect. See Skarada, 2022 MSPB 17, ¶ 16. Accordingly, we modify the
administrative judge’s analysis of the appellant’s hostile work environment claim
consistent with Skarada.
2 The relevant events occurred after the December 27, 2012 effective date of the WPEA.
Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied the
WPEA to this appeal. 5
Although the administrative judge did not have the benefit of Skarada, we
find no basis to disturb her findings regarding the appellant’s hostile work
environment claim. Specifically, we agree with the administrative judge that the
essence of the appellant’s hostile work environment claim is that the agency
failed to adequately investigate allegations regarding a dispute between the
appellant’s wife and her employing agency, thereby creating a hostile work
environment for the appellant. ID at 7-8. We agree with the administrative judge
that these claims are insufficient to create an actionable hostile work
environment.3
We see no reason to disturb the administrative judge’s finding that the
termination of the appellant’s authorization to telework was a personnel action.
ID at 8-9. We therefore turn to whether the appellant established that he made a
protected disclosure or engaged in protected activity that was a contributing
factor in that personnel action.
The appellant established that he engaged in protected activity that was a
contributing factor in the termination of his authorization to telework.
The administrative judge found that the appellant failed to prove that any
of his disclosures were protected under 5 U.S.C. § 2302(b)(8). ID at 9-14. We
see no reason to disturb those findings. However, we find that the appellant did
prove that he engaged in protected activity under 5 U.S.C. § 2302(b)(9).
Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity
when he discloses information to the agency’s Office of Inspector General (OIG)
(or any other component responsible for internal investigation or review) or OSC
“in accordance with applicable provisions of law.” Here, the record reflects that
the appellant filed a complaint with OIG in July 2018. IAF, Tab 12 at 5. The
3 Having found that the agency’s error regarding the appellant’s probationary period is
not itself a personnel action, we have considered whether it contributed to a hostile
work environment. However, we find that consideration of that additional action does
not alter our conclusion that the appellant failed to establish a hostile work environment
under Skarada.6
record also reflects that the appellant filed an OSC complaint in October 2019.
IAF, Tab 14 at 27-52.4 The Board recently held that, under the broadly worded
provision of 5 U.S.C. § 2302(B)(9)(C), any disclosure of information to OIG or
OSC is protected regardless of its content as long as such disclosure is made in
accordance with applicable provisions of law. Fisher v. Department of the
Interior, 2023 MSPB 11, ¶ 8. Thus, we find that the appellant established that he
engaged in activity protected under 5 U.S.C. § 2302(b)(9)(C) when he filed both
his July 2018 OIG complaint and his October 2019 OSC complaint.5
The most common way for an appellant to prove that a protected disclosure
or activity was a contributing factor in the agency’s taking of a personnel action
is the knowledge/timing test. Scoggins v. Department of the Army , 123 M.S.P.R.
592, ¶ 21 (2016). That test requires the appellant to prove that the official taking
the personnel action knew of the protected disclosure or activity and took the
personnel action within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action. Id.
Once the appellant has satisfied the knowledge/timing test, he has demonstrated
that a protected disclosure or activity was a contributing factor in a personnel
action, even if a complete analysis of all of the evidence would not support such a
finding. Gonzalez v. Department of Transportation , 109 M.S.P.R. 250, ¶ 20
(2008).
4 The copy of the OSC complaint in the record does not indicate the specific date on
which it was filed. The appellant indicated in his initial appeal that he filed the OSC
complaint on October 30, 2019. IAF, Tab 1 at 4. That date is consistent with other
evidence in the record. Specifically, the appellant sent an email to agency officials on
October 30, 2019, attaching his OSC complaint and some of the supporting
documentation he submitted to OSC. IAF, Tab 5 at 4-6. Additionally, in his
November 15, 2019 memorandum terminating the appellant’s telework status, the
deciding official indicated that the appellant had informed the deciding official on
November 4, 2019, that he had been in contact with OSC. IAF, Tab 14 at 72. The
appellant added the termination of his telework status to his OSC complaint on
November 15, 2019. IAF, Tab 7 at 6-8.
5 The portion of the appellant’s OSC complaint alleging reprisal for protected
disclosures also is protected under 5 U.S.C. § 2303(b)(9)(a)(i).7
We find that the knowledge/timing test is satisfied with respect to the
appellant’s OSC complaint. In the November 15, 2019 memorandum terminating
the appellant’s telework status, the deciding official acknowledged that he was
made aware of the appellant’s contact with OSC less than 2 weeks earlier. IAF,
Tab 14 at 72. This is well within the amount of time the Board has recognized as
sufficiently short to satisfy the knowledge/timing test. See Schnell v. Department
of the Army, 114 M.S.P.R. 83, ¶ 22 (2010) (holding that a personnel action taken
within 1 or 2 years of a protected disclosure is sufficiently close in time to satisfy
the timing prong of the knowledge/timing test). Accordingly, we conclude that
the appellant has established a prima facie case that the termination of his
approval for telework was in retaliation for his OSC complaint.
The agency proved by clear and convincing evidence that it would have
terminated the appellant’s authorization to telework in the absence of his
protected activity.
Having found that the appellant failed to prove his prima facie case of
retaliation, the administrative judge did not address whether the agency proved by
clear and convincing evidence that it would have terminated the appellant’s
authorization to telework in the absence of his protected activity. Because the
record is fully developed and there was no hearing requiring demeanor -based
credibility determinations, the Board can determine whether the agency met its
burden without remand. See Forte v. Department of the Navy , 123 M.S.P.R. 124,
¶ 27 (2016).
In determining whether an agency has met its burden to prove that it would
have taken a personnel action in the absence of an employee’s protected activity,
the Board will consider all 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 do not engage in such protected activity, but who8
are otherwise similarly situated. Alarid v. Department of the Army , 122 M.S.P.R.
600, ¶ 14 (2015); see Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999). The Board must consider all the pertinent evidence in the
record, and must not exclude or ignore countervailing evidence by only looking at
the evidence that supports the agency’s position. Alarid, 122 M.S.P.R. 600, ¶ 14;
see Whitmore v. Department of Labor , 680 F.3d 1353, 1367-70 (Fed. Cir. 2012).
The Board does not view the Carr factors as discrete elements, each of which the
agency must prove by clear and convincing evidence, but rather weighs these
factors together to determine whether the evidence is clear and convincing as a
whole. Alarid, 122 M.S.P.R. 600, ¶ 14; Lu v. Department of Homeland Security ,
122 M.S.P.R. 335, ¶ 7 (2015).
Because the personnel action at issue in this appeal is not disciplinary in
nature, Carr factor one does not apply straightforwardly to this case. Smith v.
Department of the Army , 2022 MSPB 4, ¶ 23. Instead, it is appropriate to
consider the broader question of whether the agency had legitimate reasons for its
action. Id. We find that the agency had legitimate reasons for its decision to
terminate the appellant’s authorization to telework. As the deciding official
noted, the appellant generally was not authorized to telework. IAF, Tab 14 at 73.
However, when the appellant raised safety concerns about reporting to work in
November 2019, his first-level supervisor authorized him to telework on an ad
hoc basis while the agency considered his concerns. Id. The appellant submitted
a memorandum dated November 4, 2019, setting forth his safety concerns. Id.
at 69-71. By memorandum dated November 15, 2019, the deciding official
informed the appellant that, although he was sympathetic to the appellant’s
concerns, he had not “describe[d] any reasonable, substantive information of an
actual threatening or unsafe condition” that would warrant his continued absence
from the workplace. Id. at 72. He therefore directed the appellant to return to the
workplace the following week. Id.9
We find that the deciding official’s decision was entirely reasonable in
light of the appellant’s memorandum. Many of the appellant’s claims therein are
vague, speculative, and do not raise concerns for the appellant’s physical safety
in the workplace. The appellant acknowledged in an email to OSC that the
deciding official had asked him to give specific reasons why he felt unsafe but
that he found it difficult to provide “a simple answer” to that inquiry. IAF, Tab 7
at 6. The most concrete claim the appellant made regarding physical safety in the
workplace involves a claim that a coworker of the appellant’s wife made
comments regarding carrying a concealed weapon at the workplace. However,
the appellant and his wife had raised that concern in 2017, and the agency had
investigated it at the time and could not substantiate any threat to the appellant or
his wife. Id. at 107-08, 112-13. We therefore find it is not a compelling reason
to permit the appellant to continue teleworking indefinitely in November 2019.
While the appellant genuinely may have felt unsafe in the workplace, we find that
he did not provide sufficient grounds for the agency to authorize him to telework
due to safety concerns. We therefore find that the first Carr factor weighs
strongly in favor of finding that the agency met its burden.
Turning to the second Carr factor, we find that although there was some
motive to retaliate against the appellant for his OSC complaint, such motive was
not particularly strong. In assessing this factor, we are mindful of the U.S. Court
of Appeals for the Federal Circuit’s instruction that the Board should avoid an
overly restrictive analysis and should fully consider whether a motive to retaliate
can be imputed to the agency officials involved and whether those officials
possessed a “professional retaliatory motive” because the whistleblower’s
disclosures implicated agency officials and employees in general. Robinson v.
Department of Veterans Affairs , 923 F.3d 1004, 1019 (Fed. Cir. 2019); Whitmore,
680 F.3d at 1370.6 We also must consider the appellant’s protected activity in the
6 Historically, the Board has been bound by the precedent of the Federal Circuit on this
issue. However, as a result of changes initiated by the Whistleblower Protection
Enhancement Act of 2012 (Pub. L. No. 112-199, 126 Stat 1465), extended for 3 years10
context of the tense relationship between the appellant and the agency. See Soto
v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 16. The appellant had been
raising issues and filing various complaints for at least 2 years at the time the
agency terminated his authorization to telework, and that history may have added
to the agency’s retaliatory motive.
Nevertheless, the deciding official did not have a strong personal motive to
retaliate against the appellant. In his October 2019 OSC complaint, the appellant
identified a number of agency officials who he alleged were involved in
violations of law, rule, or regulation, IAF, Tab 14 at 47, and taking retaliatory
personnel actions, id. at 37. The official who terminated his authorization to
telework in November 2019 was not among those identified. Thus, although the
deciding official had some motive to retaliate based on his status as a
management official, that motive was not as strong as it might have been because
he was not personally implicated in the appellant’s OSC complaint. Accordingly,
we find that the second Carr factor weighs against finding that the agency met its
burden, albeit not particularly strongly.
The agency did not present any evidence regarding its treatment of
similarly situated non-whistleblowers. While the agency does not have an
affirmative burden to produce evidence concerning each and every Carr factor,
the Federal Circuit has held that “the absence of any evidence relating to Carr
factor three can effectively remove that factor from the analysis,” but that the
failure to produce such evidence if it exists “may be at the agency’s peril,” and
“may well cause the agency to fail to prove its case overall.” Whitmore, 680 F.3d
at 1374-75; Soto, 2022 MSPB 6, ¶ 18. Here, the deciding official indicated that
he “ha[d] not had the occasion to make a similar decision with respect to any
other employee.” IAF, Tab 46 at 7. Given the unusual nature of the personnel
(All Circuits Review Extension Act, Pub. L. No. 113-170, 128 Stat. 1894), and
eventually made permanent (All Circuits Review Act, Pub. L. No. 115-195, 132 Stat.
1510), we must consider this issue with the view that the appellant may seek review of
this decision before any appropriate court of appeal. See 5 U.S.C. § 7703(b)(1)(B).11
action at issue in this case, we find it unsurprising that the agency has no
comparator evidence. Thus, although the absence of evidence regarding Carr
factor three means that factor cannot weigh in favor of the agency, Smith v.
General Services Administration , 930 F.3d 1359, 1367 (Fed. Cir. 2019), we find
that Carr factor three is neutral in this case.
Considering the Carr factors as a whole, we find that the agency met its
burden to show by clear and convincing evidence that it would have terminated
the appellant’s authorization to telework in the absence of his protected activity.
We find that the strong justification for the agency’s action significantly
outweighs any retaliatory motive. We therefore deny the appellant’s request for
corrective action.
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
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.12
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 you13
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: 14
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. 15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Stern_Chad_K_NY-1221-20-0098-W-1_Final_Order.pdf | 2024-04-05 | CHAD KADRI STERN v. DEPARTMENT OF THE ARMY, MSPB Docket No. NY-1221-20-0098-W-1, April 5, 2024 | NY-1221-20-0098-W-1 | NP |
1,864 | https://www.mspb.gov/decisions/nonprecedential/Ashe_LavernDC-0752-21-0616-I-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAVERN ASHE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DC-0752-21-0616-I-3
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ustin Schnitzer , Esquire, Pikesville, Maryland, for the appellant.
Courtney Jean Marshall , Esquire, Joint Base Andrews, Maryland, for the
agency.
Jeremiah Crowley , Esquire, Maxwell Air Force Base, Alabama, 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. On petition for review, she disagrees with some of the
administrative judge’s credibility findings and his determination that she did not
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).
prove her affirmative defense of race discrimination. She also raises new
arguments disputing the propriety of the penalty of removal for her misconduct.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous 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 SUPPLEMENTED by
this Final Order to address the appellant’s newly raised arguments, we AFFIRM
the initial decision.
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); Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant raises the following
arguments for the first time on review. She has not explained why these
arguments could not have been raised before the administrative judge, and thus,
we need not consider them. In any event, as discussed below, these arguments do
not provide a basis to disturb the initial decision.
Regarding the agency’s selection of the penalty of removal, which the
administrative judge affirmed, the appellant suggests for the first time on review
that the agency could have placed her in a different position. Petition for Review2
File (PFR), Tab 3 at 7. When, as here, all of the agency’s charges have been
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. Thomas v. Department of
the Army, 2022 MSPB 35, ¶ 19 . 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 that the agency failed to weigh the relevant factors or
the penalty clearly exceeds the bounds of reasonableness. Id.
Here, the administrative judge concluded that the deciding official properly
considered the relevant Douglas factors based on her written analysis and
testimony.2 Ashe v. Department of the Air Force , MSPB Docket No. DC-0752-
21-0616-I-3, Refiled Appeal File (I-3 RAF), Tab 7, Initial Decision (ID) at 22-23.
In particular, the deciding official considered the availability of alternative
penalties but decided they would not be effective in deterring the conduct.
Ashe v. Department of the Air Force , MSPB Docket No. DC-0752-21-0616-I-2,
Refiled Appeal File (I-2 RAF), Tab 14 at 76. Because we discern no basis to
disturb the administrative judge’s determination that the agency proved its
charges and the penalty of removal did not exceed the bounds of reasonableness,
we agree with his decision to defer to the deciding official’s determination. See
Davis v. U.S. Postal Service , 120 M.S.P.R. 457, ¶ 6 (2013).
We also are not persuaded by the appellant’s newly raised argument,
unsupported by evidence, that she received a “fully successful” performance
rating on June 1, 2020. PFR File, Tab 3 at 5. The appellant’s work record is only
one factor to be considered in assessing the reasonableness of a penalty. See
2 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. 3
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1981) (stating that the
employee’s past work record, including performance on the job, is one factor in a
nonexhaustive list for penalty consideration). In response to the proposed
removal, the appellant raised that her May 2020 performance review was “fully
successful.” I-2 RAF, Tab 14 at 78. The deciding official responded to the
appellant’s email and requested a copy of the performance review, but the
appellant did not reply. Id. The performance review does not appear anywhere in
the record. Thus, the appellant’s argument provides no basis for disturbing the
penalty determination.
The appellant also newly asserts that she was “the only one” that her
first-level supervisor disciplined and that th e agency did not discipline a
coworker who publicly argued with her first -level supervisor. PFR File, Tab 3
at 6-7. The administrative judge found that the appellant’s coworker was not a
valid comparator in the context of the appellant’s race discrimination claim. ID
at 16-17 n.16. We decline to disturb that finding on review.
Moreover, the consistency of the penalty with those imposed upon other
employees for the same or similar offenses is simply one of a number of factors
that are relevant for consideration in determining the appropriateness of a
penalty. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 18. When analyzing a
disparate penalty claim, broad similarity in the misconduct of the appellant and
another individual alone is insufficient to establish that they are appropriate
comparators; the relevant inquiry is whether the agency knowingly and
unjustifiably treated employees who engaged in the same or similar offenses
differently. Id., ¶¶ 11-14.
To the extent that the appellant attempts to argue on review that her
coworker’s behavior was similar to her own, we are not persuaded. The record
demonstrates that, on one occasion, the coworker raised her voice and “yelled” in
the office due to “her inability to understand the work that she was tasked to do.”
I-3 RAF, Hearing Transcript at 51-52, 67-67 (testimony of the appellant’s4
first-level supervisor), 93-95, 112-14 (testimony of the appellant’s second-level
supervisor). Conversely, the appellant sent several disparaging emails, which
disrupted office operations and detrimentally impacted her first-level supervisor’s
confidence as a manager and her mental and emotional wellbeing. Id. at 27-28
(testimony of the appellant’s first-level supervisor). Those emails were
consistent with the appellant’s three previous disciplinary actions for
discourteous conduct and “making malicious and unfounded statements against a
management official.” I-2 RAF, Tab 14 at 110-15. The appellant has not
presented any evidence that her coworker had a similar disciplinary history.
Thus, we cannot find on this record that the agency treated similarly situated
employees differently. Consequently, we find no reason to disturb the
administrative judge’s finding that the penalty of removal was reasonable. ID
at 22-23.
The appellant also argues for the first time on review that her first-level
supervisor discussed the appellant’s medical issues with a coworker. PFR File,
Tab 3 at 5. The appellant provides no explanation for how these alleged
discussions related to her removal for discourteous conduct and failure to follow
supervisory instructions. Thus, the argument provides no basis to grant the
appellant’s petition for review. 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).
Accordingly, we affirm the initial decision as supplemented above.
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
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
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular6
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 7
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of8
competent jurisdiction.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 | Ashe_LavernDC-0752-21-0616-I-3_Final_Order.pdf | 2024-04-05 | LAVERN ASHE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-0752-21-0616-I-3, April 5, 2024 | DC-0752-21-0616-I-3 | NP |
1,865 | https://www.mspb.gov/decisions/nonprecedential/Varnum_Rebecca_E_SF-0752-21-0418-A-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REBECCA E VARNUM,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-0752-21-0418-A-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles H Allenberg , Esquire, Virginia Beach, Virginia, for the appellant.
Brent W. Peden , Carson City, Nevada, 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
denied her attorney fee petition relating to her petition for enforcement. For the
reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the addendum initial decision, and award the requested fees in the
amount of $7,800.
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
¶2The appellant filed a Board appeal challenging a personnel action taken by
the Nevada National Guard. Varnum v. Department of the Air Force , MSPB
Docket No. SF-0752-21-0418-I-1, Initial Appeal File (IAF), Tab 1. The parties
settled the appeal and requested that the Board retain jurisdiction to enforce the
settlement agreement. IAF, Tab 16 at 4-6. The settlement agreement, signed on
September 30, 2021, provided, in pertinent part, that the agency would pay the
appellant $29,952 for lost wages. Id. at 5, ¶ 3.b. The agreement did not contain a
timeline for payment. Id. at 4-6. On October 4, 2021, the administrative judge
issued an initial decision that found that the settlement agreement was lawful on
its face, was freely entered into by the parties, and that the parties understood its
terms. IAF, Tab 17, Initial Decision. He entered the agreement into the record
for enforcement purposes and dismissed the appeal as settled. Id. Neither party
petitioned for review of the initial decision.
¶3On March 11, 2022, the appellant filed a petition for enforcement, in which
she asserted that the agency had not paid her pursuant to the settlement
agreement. Varnum v. Department of the Air Force , MSPB Docket No. SF-0752-
21-0418-C-1, Compliance File (CF), Tab 1 at 4-6. The appellant received her
back pay during the pendency of the enforcement proceedings, in or around mid -
to late-April 2022. CF, Tab 15, Compliance Initial Decision (CID) at 3-4.
Accordingly, the administrative judge dismissed the appellant’s petition for
enforcement as moot. Id. at 2, 5.
¶4Thereafter, the appellant filed a motion for attorney fees in connection with
her petition for enforcement. Varnum v. Department of the Air Force , MSPB
Docket No. SF-0752-21-0418-A-1, Attorney Fee File (AFF), Tab 1. After
affording the parties the opportunity to submit evidence and argument concerning
the appellant’s motion and considering their submissions, AFF, Tabs 2-7, the
administrative judge issued an addendum initial decision denying the appellant’s
request for attorney fees. AFF, Tab 8, Addendum Initial Decision (AID). The2
appellant has filed a petition for review and the agency has filed a response.
Varnum v. Department of the Air Force , MSPB Docket No. SF-0752-21-0418-A-
1, Petition for Review (A-1 PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5To prevail on a motion for attorney fees arising out of a petition for
enforcement, an appellant must prove the following: (1) an attorney-client
relationship existed and fees were incurred; (2) she is the prevailing party; (3) an
award of fees is warranted in the interest of justice; and (4) the fees are
reasonable. Shelton v. Environmental Protection Agency , 115 M.S.P.R. 177, ¶ 12
(2010); see 5 U.S.C. § 7701(g)(1). In order to show that she is the prevailing
party in the compliance phase of the proceedings, an appellant must establish that
the agency materially breached the settlement agreement at issue. Shelton. 115
M.S.P.R. 177, ¶ 12. In cases where the agency complies with the settlement
agreement during the pendency of the petition for enforcement, the appellant is
not required to establish that the agency’s eventual compliance was causally
related to her petition for enforcement in order to establish that she is the
prevailing party. Garstkiewicz v. U.S. Postal Service , 981 F.2d 528, 530 (Fed.
Cir. 1992). Although the appellant bears the ultimate burden of proving the
agency’s noncompliance, the agency bears the burden of producing relevant,
material, and credible evidence of its compliance. Shelton. 115 M.S.P.R. 177,
¶ 12. If a settlement agreement sets no time for performance, a reasonable time
under the circumstances will be presumed. Id.
¶6As discussed in the addendum initial decision, the agency did not dispute
the requested fees or hourly rates, or that the fees were incurred as part of an
attorney-client relationship. AID at 3. We find that the itemized charges and the
hourly rates are reasonable on their face, and we therefore find that the appellant
has proved elements 1 and 4. 3
The appellant was the prevailing party.
¶7In this case, the agency came into compliance with the settlement agreement
during the pendency of the enforcement proceedings. CID at 3-4. The
administrative judge found that the appellant was not the prevailing party because
she did not demonstrate a causal link between her petition for enforcement and
the ultimate recovery. AID at 4. However, the Federal Circuit held in
Garstkiewicz, 981 F.2d at 530, that an appellant is not required to establish that
the agency’s eventual compliance was causally related to her petition for
enforcement. See Shelton, 115 M.S.P.R. 177, ¶ 12. Rather, when the settlement
agreement is silent as to the date by which payment must be made, the ultimate
inquiry is whether the agency made payment within a reasonable time under the
circumstances. Id. We find that a 7-month delay in the agency’s compliance with
a significant provision of the agreement is unreasonable under the circumstances.
See, e.g., Del Balzo v. Department of the Interior , 72 M.S.P.R. 55, 60 (1996)
(finding a 3- to 4-month delay in complying with the terms of a settlement
agreement to be unreasonable), overruled on other grounds by Shelton ,
115 M.S.P.R. 177, ¶ 8. Although the agency has asserted that any delay was
caused by the Defense Finance and Accounting Service (DFAS) and that it
diligently followed up with DFAS to ensure payment was made, we have
reviewed the record and we find that the agency bears some responsibility for the
delayed payment. The record reflects that the agency delayed until November 23
and November 28, 2021 before submitting the necessary documents for
processing payment to DFAS. CF, Tab 3 at 4-15. In any event, the Board has
held in prior cases that the agency is liable for DFAS’s delay because the agency
chose to use DFAS as its paying agent.2 AFF, Tab 7; see Tichenor v. Department
of the Army, 84 M.S.P.R. 386, ¶ 8 (1999). We therefore find that the appellant is
the prevailing party.
2 On review, the appellant asserts that the agency’s response to her fee petition was
untimely and should not be considered. A-1 PFR File, Tab 1 at 7-9. Even considering
the agency’s arguments, we find that the initial decision must be reversed. 4
An award of attorney fees is warranted in the interest of justice.
¶8When a settlement agreement implicitly provides that an agency must
perform its obligations within a reasonable period of time, and the agency delays
its compliance beyond a reasonable period of time, an award of attorney fees is
warranted in the interest of justice. Capehart v. U.S. Postal Service , 83 M.S.P.R.
385, ¶ 6 (1999), overruled on other grounds by Shelton , 115 M.S.P.R. 177, ¶ 8;
Del Balzo, 72 M.S.P.R. at 62. Because we find that a delay of 7 months to pay
back pay was unreasonable under the circumstances, we find that the interest of
justice is served by an award of attorney fees. SeeCapehart, 83 M.S.P.R. 385,
¶ 6; Del Balzo, 72 M.S.P.R. at 62.
ORDER
¶9We ORDER the agency to pay the attorney of record $7,800 in fees. The
agency must complete this action no later than 20 days after the date of this
decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C.
§ 1204(a)(2)).
¶10We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it took to carry out the Board’s Order. We ORDER the appellant and the
attorney to provide all necessary information that the agency requests to help it
carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶11No later than 30 days after the agency tells the appellant or the attorney that
it has fully carried out the Board’s Order, the appellant or the attorney may file a
petition for enforcement with the office that issued the initial decision on this
appeal, if the appellant or attorney believes that the agency did not fully carry out
the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s5
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 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.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.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. 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 | Varnum_Rebecca_E_SF-0752-21-0418-A-1__Final_Order.pdf | 2024-04-05 | REBECCA E VARNUM v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-0752-21-0418-A-1, April 5, 2024 | SF-0752-21-0418-A-1 | NP |
1,866 | https://www.mspb.gov/decisions/nonprecedential/Plunkett_Thomas_A_AT-1221-22-0022-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS A. PLUNKETT,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-1221-22-0022-W-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Denis P. McAllister , Esquire, Glen Cove, New York, for the appellant.
Gregory E. Schrager , Esquire, Tampa, Florida, for the agency.
James Andrew Stevens , Esquire, and Teresa Chin Williams , Esquire,
Miami, 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
denied corrective action in his individual right of action appeal. Generally, we
grant petitions such as this one only in the following circumstances: 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 contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On petition for review, the appellant primarily argues that the
administrative judge abused his discretion by rejecting the parties’ stipulation
offered at the beginning of the first day of the hearing. Petition for Review File,
Tab 3 at 9-14. The appellant’s arguments are unavailing. The parties stipulated,
in relevant part, “that [the appellant] made a protected disclosure . . . in that he
had a reasonable belief of an abuse of authority.” Initial Appeal File (IAF),
Tab 36, Hearing Audio, Day 1. Following the hearing, the administrative judge
issued an order rejecting the stipulation, reasoning that, under 5 C.F.R. § 1201.63,
parties may stipulate to any matter of fact and the proposed stipulation
impermissibly stipulated to a matter of law.2 IAF, Tab 44 at 2. We agree.
2 To the extent that the appellant challenges the administrative judge’s hearing-related
ruling, we decline to address his challenge on review. The administrative judge
provided the appellant with an opportunity to challenge the ruling on the rejected
stipulation before issuing the initial decision, IAF, Tab 44 at 3, and he did not. His
failure to do so precludes his raising the issue on review. See Tarpley v. U.S. Postal
Service, 37 M.S.P.R. 579, 581 (1988) (stating that the appellant’s failure to object to
rulings precludes him from doing so on review); see also Langford v. Department of the
Treasury, 73 M.S.P.R. 129, 138 (1997) (finding that a party may not wait until after
adjudication is complete to object for the first time to an administrative judge’s hearing-2
The Board has held that whether a disclosure is protected is a matter of law
not subject to stipulation and stipulations relating to such matters are not binding.
See Wojcicki v. Department of the Air Force , 72 M.S.P.R. 628, 634 (1996); see
also King v. Department of Veterans Affairs , 105 M.S.P.R. 21, ¶ 16 n.2 (2007)
(stating that the parties may stipulate to facts, but not legal conclusions). Thus,
notwithstanding the stipulation that the appellant made a protected disclosure, the
administrative judge must resolve whether the appellant had a reasonable belief
that the condition reported established an abuse of authority. See Wojcicki,
72 M.S.P.R. at 634. Therefore, it was appropriate for the administrative judge to
reject the stipulation and determine whether the appellant made a protected
disclosure.
Accordingly, we deny the appellant’s petition for review and affirm the
initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
related rulings).
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Plunkett_Thomas_A_AT-1221-22-0022-W-1__Final_Order.pdf | 2024-04-05 | THOMAS A. PLUNKETT v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-1221-22-0022-W-1, April 5, 2024 | AT-1221-22-0022-W-1 | NP |
1,867 | https://www.mspb.gov/decisions/nonprecedential/Nelson_CameronAT-1221-22-0186-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAMERON NELSON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-1221-22-0186-W-1
DATE: April 5, 2024
THIS ORDER IS NONPRECEDENTIAL1
G
eorgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Alicia Ainsworth , Esquire, and Andrew Hass , 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, FIND that the appellant established 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).
over his claims, and REMAND the case to the Atlanta Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed an Environmental Floodplain Specialist,
IC-11, with the agency’s Federal Emergency Management Agency (FEMA).
Initial Appeal File (IAF), Tab 11 at 4, 19. He was appointed to this position on
June 23, 2019, under the Stafford Disaster Relief and Emergency Assistance Act,
Pub. L. 93-288, 88 Stat. 143 (1974), which provides for temporary, emergency
appointments outside title 5. Id. at 22; IAF, Tab 9 at 38. On October 22, 2021,
the agency terminated the appellant based on the charges of conduct unbecoming,
which concerned his “surreptitious audio recording of another FEMA employee
without their knowledge or consent,” and unauthorized use of a travel charge
card. IAF, Tab 11 at 19-23.
At some point following his termination, the appellant filed a complaint
with the Office of Special Counsel (OSC) alleging that he was terminated because
of disclosures he made to the agency’s equal employment opportunity (EEO)
office and Office of Professional Responsibility (OPR). IAF, Tab 9 at 33-53.
By letter dated December 8, 2021, OSC closed its investigation into the
appellant’s complaint and informed him of his IRA appeal rights with the Board.
IAF, Tab 1 at 8.
The appellant filed a timely appeal with the Board. IAF, Tab 1.
In response to the administrative judge’s jurisdictional order explaining how the
appellant could establish jurisdiction over an IRA appeal, the appellant asserted
that on or around January 26, 2021, he told an EEO counselor that he was being
discriminated against based on his race (African American) and sex (male) and
retaliated against based on prior EEO activity. IAF, Tab 9 at 15. Specifically,
he alleged that he disclosed to an EEO counselor that his supervisor sought to
intimidate him by threatening to “let [him] go” unless his performance improved,
that he was verbally abused and intimidated by his supervisor, and that his2
supervisor threatened to engage in potential witness tampering by “throw[ing]”
his weight around.” Id. at 7-8, 15-16. He also asserted that he filed a complaint
with the agency’s OPR regarding these matters. IAF, Tab 15 at 4.
The appellant’s pleadings generally suggest that he believes he was terminated as
a result of the harassment and his communication with the agency’s EEO and
OPR offices. IAF, Tabs 9, 15.
Without holding the appellant’s requested hearing, IAF, Tab 1 at 2,
the administrative judge issued an initial decision, IAF, Tab 16, Initial Decision
(ID) based on the written record. Without deciding whether the appellant proved
that he exhausted his administrative remedy with OSC, the administrative judge
found that the appellant failed to nonfrivolously allege that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8). ID at 7-8. Accordingly, he dismissed the
appeal for lack of jurisdiction. ID at 8.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. He primarily argues the merits of his termination,
specifically with regard to the charge concerning the audio recordings of another
FEMA employee without their knowledge or consent. Id. at 7-8. He also
reiterates his claims of discrimination based on race and sex. Id. at 8, 14, 16.
With his petition for review, he includes emails relating to the audio recordings
and agency regulations/policies related to such activity, and a March 2020 FEMA
Records Disposition Schedule.2 Id. at 18-257. The agency has responded to the
appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish the Board’s jurisdiction over an IRA appeal, the appellant
must prove by preponderant evidence that he exhausted his administrative remedy
2 Because we are remanding this appeal for adjudication on the merits, we need not
determine the effect these documents have on the appellant’s petition for review. The
appellant may submit the documents relevant to his claims during adjudication on
remand. 3
before OSC and make nonfrivolous allegations that: (1) he made a protected
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
protected 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). Edwards v. Department of Labor , 2022 MSPB 9, ¶ 8; Salerno
v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
As set forth above, the appellant has alleged that he disclosed to an EEO
counselor that he was discriminated against on the basis of race and sex,
specifically asserting that his supervisor told him he was going to “let [him] go”
if his performance did not improve, that he was verbally abused and intimidated,
and that his supervisor threatened to engage in witness tampering.
IAF, Tab 9 at 7-8, 14-16. He has also asserted that he similarly complained to the
agency’s OPR, IAF, Tab 15 at 4, and that he was terminated in reprisal for his
communications with the EEO and OPR offices, IAF, Tabs 9, 15.
The appellant exhausted his administrative remedy with OSC.
As noted above, in the initial decision, the administrative judge made no
findings regarding whether the appellant exhausted his administrative remedy
with OSC. ID at 7. However, exhaustion of claims with OSC is generally seen as
a threshold matter and, thus, will be addressed here first. See Carney
v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶ 4 (2014). 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. 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. Id., ¶ 11; Mason v. Department of Homeland Security , 116 M.S.P.R.4
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. Chambers,
2022 MSPB 8, ¶ 11.
Here, the record includes the appellant’s OSC complaint, in which
he discussed his claims of discrimination and asserted that he disclosed to the
agency’s EEO office his claims that his supervisor told him he would be “let go”
if his performance did not improve and harassed and intimated him. IAF, Tab 9
at 44. He also stated to OSC that he contacted OPR with his complaints about his
supervisor. Id. The appellant further alleged in the OSC complaint that, in
reprisal for his disclosures to the EEO office and his complaint to OPR, he was
terminated. Id. at 40-46. Although the appellant’s alleged disclosure to the EEO
counselor concerning his supervisor’s threat to engage in witness tampering does
not specifically appear in the appellant’s OSC complaint or other correspondence
with OSC, the OSC complaint includes substantial discussions of alleged
instances of discrimination and reprisal that were brought to the agency’s EEO
counselor’s attention. Id. at 41-42. We find that such discussions adequately
provided OSC with a sufficient basis to pursue an investigation into his
allegations of whistleblower reprisal. See Chambers, 2022 MSPB 8, ¶ 10
(explaining that an appellant may give a more detailed account of their
whistleblowing activities before the Board than they did to OSC). Based on the
foregoing, we find that the appellant proved by preponderant evidence that he
exhausted his administrative remedy with OSC. As such, we turn to whether the
appellant nonfrivolously alleged that he made a protected disclosure or engaged
in protected activity that was a contributing factor to a personnel action.
The administrative judge correctly found that the appellant’s disclosures to the
EEO counselor are not within the Board’s IRA jurisdiction.
In the initial decision, the administrative judge observed that the “vast
majority” of the appellant’s disclosures to the EEO counselor allege “violations5
of [t]itle VII for race discrimination, the creating of a hostile work environment
based on race, and reprisal for protected activity.” ID at 7. He stated that it is
well-settled that the Whistleblower Protection Enhancement Act (WPEA), Pub. L.
No. 112-199, 126 Stat. 1465 (2012) is “not the proper vehicle for redress of [t]itle
VII violations.” Id. Nonetheless, he further concluded that the appellant’s
disclosures to the agency’s EEO counselor lacked specificity, were too
conclusory, and did not evidence a category of wrongdoing as set forth in
5 U.S.C. § 2302(b)(8).3 ID at 7-8. As such, he found that the appellant failed to
nonfrivolously allege that he made a protected disclosure under the WPEA.
ID at 8.
Regarding the administrative judge’s initial discussion—that the WPEA is
not the proper vehicle for allegations of violations of title VII—the Board
recently discussed this principle in Edwards v. Department of Labor , 2022 MSPB
9. In Edwards, the Board reiterated that the Federal courts and the Board have
found that the Whistleblower Protection Act (WPA), Pub. L. No. 101-12, 103
Stat. 16 (1989), does not extend to claims of discrimination and reprisal arising
under title VII. Id., ¶¶ 10-17. The Board further stated that, although the WPEA
expanded the scope of whistleblower protection, such expansion did not include
title VII-related claims and that such claims remain outside of the Board’s IRA
jurisdiction. Id., ¶ 22. It also acknowledged that redress for violations of title
VII, including discrimination and retaliation, is enforced by the Equal
Employment Opportunity Commission. Id., ¶ 23.
Here, the appellant’s allegations are undisputedly based on claims of
discrimination based on race and sex and retaliation based on prior EEO activity.
IAF, Tab 9 at 7-8, 14-20, 27. Although the appellant argues on review that,
3 A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of
fact 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). Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 12.6
due to the nature of his appointment, his only avenue of recourse was through the
agency’s EEO office, PFR File, Tab 1 at 5, he has not retracted his claim that
he disclosed to the EEO counselor allegations of discrimination and reprisal
arising under title VII. Indeed, in his petition for review, he reiterates his claim
that he was discriminated against based on race and age. Id. at 8, 14, 16.
Accordingly, we agree with the administrative judge that the Board lacks
jurisdiction in this IRA appeal over the appellant’s claims arising under title VII,
which include all of his disclosures to the agency’s EEO counselor.4
See Edwards, 2022 MSPB 9, ¶¶ 10-17, 21-23.
The appellant nonfrivolously alleged that he engaged in protected activity under
5 U.S.C. § 2302(b)(9).
In the initial decision, the administrative judge acknowledged that the
appellant filed a complaint with OPR, but he did not address whether this
complaint constituted protected activity under the WPEA. ID at 5, 8. Thus,
we do so here. Under 5 U.S.C. § 2302(b)(9)(C), disclosing information to a
component responsible for internal investigation or review constitutes protected
activity. It appears undisputed that OPR qualifies as such a component.
4 In the initial decision, the administrative judge considered the appellant’s allegation
that he disclosed to the agency’s EEO counselor that his supervisor threatened to
engage in witness tampering. ID at 8. Specifically, the administrative judge considered
whether this constituted a nonfrivolous allegation of an abuse of authority under
5 U.S.C. § 2302(b)(8), which could form the basis of a nonfrivolous allegation of a
protected disclosure and, thus, establish Board jurisdiction if other elements are also
met. Ultimately, the administrative judge found that the allegation was too conclusory
to constitute a nonfrivolous allegation. Id. We need not determine whether this finding
is correct because the allegation is that the threat to engage in witness tampering is
related to alleged discrimination and reprisal for prior EEO activity, IAF, Tab 9
at 14-20, which takes the allegation outside of the Board’s jurisdiction in an IRA
appeal. See Edwards, 2022 MSPB 9, ¶¶ 10-17, 21-23; Wilson v. Department of
Veterans Affairs, 2022 MSPB 7, ¶ 12 (including claims of retaliation with claims of
discrimination as alleged violations of the EEO statutes when both relate to EEO
matters). Similarly, we make no findings regarding the administrative judge’s
additional discussion of the appellant’s disclosures to the EEO counselor because his
finding regarding the exclusion of EEO matters from IRA jurisdiction is dispositive.
ID at 7-8. 7
The appellant alleged that he was directed to OPR because it was the “component
responsible for internal investigation or review.” PFR File, Tab 1 at 6.
The agency similarly described OPR as the entity that “investigates employee
misconduct allegations.” IAF, Tab 11 at 6. To the extent the appellant’s OPR
complaint included matters relating to his allegations of violations of title VII,
the Board has found that activity qualifying as protected under section 2302(b)(9)
(C) is protected “regardless of its content.” Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 62. Based on the foregoing, we find that the
appellant nonfrivolously alleged that he filed a complaint with a component
responsible for internal investigations, and thus, that he nonfrivolously alleged
that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).
The appellant has nonfrivolously alleged that his OPR complaint was a
contributing factor in his termination.
As previously noted, to establish jurisdiction, an appellant must
nonfrivolously allege that he made a protected disclosure or engaged in protected
activity that was a contributing factor in a personnel action. Edwards,
2022 MSPB 9, ¶ 8. The appellant has alleged that he was terminated in reprisal
for his protected activity, and a termination is a qualifying personnel action under
5 U.S.C. § 2302(a)(2)(A)(iii).
To satisfy the contributing factor criterion at the jurisdictional stage,
the appellant only need raise a nonfrivolous allegation that the fact of, or content
of, the protected disclosure was one factor that tended to affect the personnel
action in any way. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶
19. One way to establish this criterion is the knowledge/timing test, under which
an employee may nonfrivolously allege that the disclosure was a contributing
factor in a personnel action through circumstantial evidence, such as evidence
that the official 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 personnel8
action. Id. The Board has held that a personnel action taken within
approximately 1 to 2 years of the appellant’s disclosure or activity satisfies the
knowledge/timing test. Id.
Here, it is undisputed that the Deputy Cadre Coordinator (DCC)
Program Manager issued the notice terminating the appellant’s appointment.
IAF, Tab 11 at 19. The appellant generally refers to his complaint to OPR in the
same context as his disclosures to EEO, regarding both as “disclosures,” and
he has alleged that the DCC Program Manager was aware of his disclosures.
IAF, Tab 9 at 9, Tab 15 at 4. Such allegations satisfy the knowledge prong of the
knowledge/timing test.
Regarding the timing prong, the appellant does not allege specifically
when the DCC Program Manager became aware of his OPR complaint.
IAF, Tabs 1, 9, 15. However, he alleged that he filed the OPR complaint on
February 2, 2021, and he was subsequently terminated less than 1 year later on
October 22, 2021. IAF, Tab 11 at 19, 22; Tab 15 at 4. Generally, we construe
allegations liberally in favor of finding jurisdiction, given the minimal showing
required to meet the nonfrivolous standard. See Skarada, 2022 MSPB 17, ¶ 6
(stating that any doubt or ambiguity as to whether the appellant made a
nonfrivolous jurisdictional allegation should be resolved in favor of finding
jurisdiction); Jessup v. Department of Homeland Security , 107 M.S.P.R. 1, ¶ 10
(2007) (observing that the appellant’s burden of making a nonfrivolous allegation
is low and requires only a minimal sufficient showing). Here, we reasonably
construe the appellant’s claim that the DCC Program Manager was aware of his
February 2021 OPR complaint to at least allege that she became aware of it
within 1 year of issuing the notice terminating the appellant in October of 2021.
Such an allegation satisfies the timing prong of the knowledge/timing test.
Skarada, 2022 MSPB 17, ¶ 19. Thus, we find that the appellant satisfied both
prongs of the knowledge/timing test. Accordingly, we find that the appellant
nonfrivolously alleged that he engaged in protected activity that was a9
contributing factor in a personnel action, and that he, therefore, established the
Board’s jurisdiction over his appeal.
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.5
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5 When issuing the remand initial decision, the administrative judge should incorporate
the findings and discussions here regarding exhaustion and the appellant’s disclosures
to the agency’s EEO office. 10 | Nelson_CameronAT-1221-22-0186-W-1_Remand_Order.pdf | 2024-04-05 | CAMERON NELSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-1221-22-0186-W-1, April 5, 2024 | AT-1221-22-0186-W-1 | NP |
1,868 | https://www.mspb.gov/decisions/nonprecedential/Castillo_JosephNY-114M-22-0092-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH CASTILLO,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-114M-22-0092-X-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph Castillo , Carolina, Puerto Rico, pro se.
Carla J. Chen , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
In a December 12, 2022 compliance initial decision, the administrative
judge found the agency in noncompliance with the September 8, 2022 initial
decision mitigating the appellant’s removal to a 60-day suspension. Castillo v.
Department of Homeland Security , MSPB Docket No. NY-114M-22-0092-C-1,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Compliance File, Tab 7, Compliance Initial Decision (CID); Castillo v.
Department of Homeland Security , MSPB Docket No. NY-114M-22-0092-Y-1,
Initial Appeal File, Tab 19, Initial Decision (ID). For the reasons discussed
below, we find the agency in compliance and DISMISS the petition for
enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On September 8, 2022, the administrative judge issued an initial decision
mitigating the appellant’s removal to a 60-day suspension and requiring the
agency to take appropriate action. ID at 1, 12. Following the appellant’s petition
for enforcement of this order, the administrative judge issued a compliance initial
decision on December 12, 2022, finding the agency noncompliant because it had
not taken any of the actions specified in the initial decision. CID at 2. The
administrative judge ordered the agency to submit evidence showing that it had
fully complied with the relief ordered in the initial decision. CID at 3.
In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the actions required by the decision, it must
submit to the Office of 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 had taken the
actions identified in the compliance initial decision, along with evidence
establishing that it has taken those actions. CID at 4; see 5 C.F.R. § 1201.183(a)
(6)(i). She also informed the parties of their option to request Board review of
the compliance initial decision by filing a petition for review by January 16,
2023, the date on which the findings of noncompliance would become final unless
a petition for review was filed. CID at 4; see 5 C.F.R. §§ 1201.114(e),
1201.183(a)(6)(ii), 1201.183(b). Neither party filed any submission with the
Office of the Clerk of the Board within the time limit set forth in 5 C.F.R.
§ 1201.114. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the
administrative judge’s findings of noncompliance became final, and the2
appellant’s petition for enforcement was referred to the Board for a final decision
on issues of compliance. Castillo v. Department of Homeland Security , MSPB
Docket No. NY-114M-22-0092-X-1 , Compliance Referral File (CRF), Tab 1.
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 he 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).
On February 2, 2023, the agency responded to the acknowledgement order
and submitted evidence that it had replaced the removal Standard Form 50
(SF-50) with an SF-50 showing a 60-day suspension; returned him to the agency’s
payroll following the 60-day suspension; and paid the appellant back pay and
benefits. CRF, Tab 2 at 5-6, 8-11. The appellant has not responded to this
submission, although the acknowledgement order informed him that if he did not
respond to the agency’s submission within 20 calendar days, the Board might
assume he was satisfied and dismiss his petition for enforcement. CRF, Tab 1
at 3-4. Accordingly, in view of the evidence submitted by the agency and the
appellant’s lack of response, we find the agency 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)).3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Castillo_JosephNY-114M-22-0092-X-1__Final_Order.pdf | 2024-04-05 | JOSEPH CASTILLO v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-114M-22-0092-X-1, April 5, 2024 | NY-114M-22-0092-X-1 | NP |
1,869 | https://www.mspb.gov/decisions/nonprecedential/Barber_Theresa_E_DA-315H-20-0354-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THERESA E. BARBER,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DA-315H-20-0354-I-1
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Theresa E. Barber , Enid, Oklahoma, pro se.
Mark Barnard , Esquire, Fort Gregg-Adams, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1The appellant has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
DISMISS the appeal as settled.
¶2After the filing of the petition for review, the agency submitted a document
entitled “NEGOTIATED SETTLEMENT AGREEMENT AND GENERAL
RELEASE,” which was fully executed on November 3, 2021. PFR File, Tab 5
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
at 4-9. The document provides, among other things, for the withdrawal of all
“appeals, complaints, and grievances, however titled, against the [a]gency, its
employees, or officers that [the appellant] has before the [Equal Employment
Opportunity Commission (EEOC)] or any other forum.” Id. at 5. We conclude
that the above-captioned appeal falls within the broad scope of that language.2
¶3Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). Here, we find that the parties have entered into a settlement
agreement and understand its terms. PFR File, Tab 5 at 7-8. The settlement
agreement is silent with respect to whether the parties intend for it to be entered
into the record for enforcement by the Board. Id. at 8-9. Rather, the settlement
agreement indicates that, should the appellant believe that the agency failed to
comply with the terms of the agreement, the EEOC’s procedures set forth in
29 C.F.R. § 1614.504 shall govern. Id. at 8.
¶4Accordingly, we find that dismissing the appeal with prejudice to refiling
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances and that the settlement agreement should not be entered into the
record for enforcement purposes.
¶5This 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).
2 The agreement also provides that the agency will retract its probationary termination
action against the appellant, which is the basis of the instant appeal, and replace it with
the appellant’s resignation. PFR File, Tab 5 at 5. As such, the appellant’s challenge to
the agency action at issue in this appeal is also otherwise moot. 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 | Barber_Theresa_E_DA-315H-20-0354-I-1__Final_Order.pdf | 2024-04-05 | THERESA E. BARBER v. DEPARTMENT OF DEFENSE, MSPB Docket No. DA-315H-20-0354-I-1, April 5, 2024 | DA-315H-20-0354-I-1 | NP |
1,870 | https://www.mspb.gov/decisions/nonprecedential/Kammunkun_Diana_Z_SF-0752-17-0667-M-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANA Z. KAMMUNKUN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-17-0667-M-2
DATE: April 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elbridge Z. Smith , Esquire, Renn C. Fowler , Esquire, and Gary M. Gilbert ,
Esquire, Silver Spring, Maryland, for the appellant.
Elbridge W. Smith , Esquire, Honolulu, Hawaii, for the appellant.
Loraine Kovach-Padden , Esquire, and Ryan L. Wischkaemper , 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. 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).
2
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 filed this chapter 75 appeal, challenging her removal from
service. Kammunkun v. Department of Defense , MSPB Docket No. SF-0752-17-
0667-I-1, Initial Appeal File (IAF), Tab 1. She indicated in her initial appeal that
she had filed a whistleblower reprisal complaint with the Office of Special
Counsel (OSC) regarding matters arising before her removal. Id. The Board
therefore docketed an individual right of action (IRA) appeal. Kammunkun v.
Department of Defense , MSPB Docket No. SF-1221-17-0675-W-1, Initial Appeal
File (0675 IAF), Tab 2. The appellant subsequently submitted evidence showing
that she amended her OSC complaint to add an allegation that she was removed in
reprisal for her whistleblowing. 0675 IAF, Tab 22. The administrative judge
therefore joined the removal and IRA appeals. 0675 IAF, Tab 54.
The administrative judge held a hearing and issued a single initial decision
in the joined appeals. 0675 IAF, Tab 68, Initial Decision. He found that the
appellant was permitted to challenge her removal in a direct Board appeal or an
OSC complaint, but not both, and that the appellant made a binding election to
pursue the matter in an OSC complaint. Id. at 7-8. As a result, the administrative
3
judge addressed the merits in just the IRA appeal, concluding that the appellant
was not entitled to corrective action regarding her removal or any other personnel
action. Id. at 14-52. Among other things, he found that the agency’s evidence in
support of the appellant’s removal was strong. Id. at 45-49; see Soto v.
Department of Veterans Affairs , 2022 MSPB 6, ¶ 11 (2022) (identifying the
strength of an agency’s evidence in support of a personnel action as one factor
relevant to its burden of proving that it would have taken the same personnel
action in the absence of an employee’s protected disclosures or activity).
The appellant challenged the initial decision before the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit). Although the court affirmed
regarding the appellant’s IRA appeal, it remanded for further proceedings
regarding the appellant’s chapter 75 appeal. Kammunkun v. Department of
Defense, 800 F. App’x 916, 917 (Fed. Cir. 2020). The court explained that the
appellant, who was a supervisor, was not an “employee” subject to the relevant
statutory and regulatory election of remedy requirements. Id.; see Requena v.
Department of Homeland Security , 2022 MSPB 39, ¶¶ 7-8, 10-12 (acknowledging
that the Federal Circuit’s decision in Kammunkun properly determined that
supervisors are not required to elect between filing a direct adverse action appeal
with the Board or an OSC complaint followed by a Board appeal).
On remand from the Federal Circuit, the administrative judge held a new
hearing and further developed the record.2 E.g., Kammunkun v. Department of
Defense, MSPB Docket No. SF-0752-17-0667-M-2, Refiled Remand File
(M-2 RF), Hearing Transcript. He then issued a remand initial decision that
affirmed the appellant’s removal. M -2 RF, Tab 9, Remand Initial Decision
2 The administrative judge dismissed the remanded chapter 75 appeal without prejudice
to accommodate scheduling delays, which resulted in two docket numbers for the one
matter. Kammunkun v. Department of Defense , MSPB Docket No. SF-0752-17-0667-
M-1, Remand File, Tab 55; Kammunkun v. Department of Defense , MSPB Docket No.
SF-0752-17-0667-M-2, Refiled Remand File, Tab 1.
4
(RID). Among other things, this decision rejected the appellant’s various claims
of due process violations. RID at 69-86.
The appellant has filed a petition for review. Kammunkun v. Department of
Defense, MSPB Docket No. SF-0752-17-0667-M-2, Petition for Review (PFR)
File, Tab 1. In her petition, the appellant exclusively challenges just one aspect
of the remand initial decision—the administrative judge’s findings regarding due
process requirements as they relate to an impartial deciding official. Id. at 4-26
(referencing RID at 74-85). The agency has filed a response, to which the
appellant has replied. PFR File, Tabs 3-4.
ANALYSIS
Before we turn to the appellant’s discrete arguments about due process, the
only matter she challenges on review,3 we will provide a brief overview of the
circumstances giving rise to her removal. The appellant held the position of
Supervisory Records and Information Management Specialist for an entity that
was previously known as the Joint POW/MIA Accounting Command but is more
recently named the Defense POW/MIA Accounting Agency (DPAA). IAF,
Tab 21 at 8, Tab 22 at 5. Over the course of a couple of years, the agency
conducted multiple investigations, each of which found that the appellant and
others repeatedly mishandled classified materials. The first was a 2015
investigation about the review and transfer of files to the National Personnel
Records Center, a National Archives and Records Administration (NARA)
facility in St. Louis, Missouri, that is not equipped to store classified materials.
IAF, Tab 18 at 11-21, Tab 22 at 6-8. The second was a 2016 security inquiry
about the improper alteration of classification markings. IAF, Tab 11 at 5-16,
Tab 22 at 9. The third was a 2016 investigation about the transfer and review of
more records to a different NARA facility that cannot store classified materials,
3 The appellant does not challenge the administrative judge’s findings regarding the
charges, nexus, and penalty. We have reviewed those findings and see no basis to
disturb them.
5
this time in Riverside, California, along with subsequent actions of the appellant
and others when they traveled to Riverside to review the records again. IAF,
Tab 15 at 9-40, Tab 22 at 10-15. It was this third investigation, the one about
Riverside, that led to the appellant’s removal.
The appellant played a primary role in the initial review of records for the
removal of classified material before their transfer to Riverside, in
December 2015. E.g., IAF, Tab 15 at 11, 55-56. She then led a trip to Riverside
to review the records again, in June 2016, with the help of two contractors. Id.
at 12, 46, 55. One of those contractors submitted a “statement for the record,”
dated July 2016, alleging that the appellant engaged in various improprieties
during their Riverside trip. Id. at 46. Broadly speaking, she alleged that the
appellant removed classified materials they found, improperly shredded them,
replaced them with unclassified documents to fill the gaps, and then lied to
agency officials about this while coaxing the contractors to do the same. Id.
In September 2016, the Acting Director of DPAA—who would later be the
deciding official in the appellant’s removal—initiated an investigation regarding
these allegations. Id. at 43-46. She identified 10 specific matters for the
investigator to consider. Id. at 43-44. The investigator did so and issued a
December 2016 report about the same. Id. at 9-40. The Acting Director then
reviewed the investigator’s evidence and findings before creating a February 2017
memorandum of record, which described her own analysis of the situation. Id.
at 5-8. This memorandum directed the Acting Chief of Staff—who would
become the proposing official in the appellant’s removal—to consider whether
any DPAA employees should be subject to personnel actions. Id. at 7.
In March 2017, the Acting Chief of Staff proposed the appellant’s removal
for (1) lack of candor, (2) failure to carry out written or oral regulations, orders,
rules, procedures, or instructions, (3) mishandling Government documents, and
(4) misuse or abuse of contractor employees. IAF, Tab 16 at 5-10. Each
stemmed from the Riverside matter. Id. at 5-7. After the appellant responded to
6
the charges, e.g., IAF, Tab 19 at 4-18, the Acting Director, i.e., the deciding
official, sustained all of the charges and the removal, IAF, Tab 21 at 9-28.4
The agency did not violate the appellant’s due process rights.
The Acting Director’s involvement in this case prior to her decision to
remove the appellant forms the basis of the appellant’s petition for review. E.g.,
PFR File, Tab 1 at 4-26. The appellant’s argument can be summarized as
follows: the Acting Director ordered the investigation about allegations that she
crafted, she overrode the investigative report to make her own investigatory
findings, and then she instructed another official to consider remedial actions,
which led to the proposed removal that the Acting Director sustained. Id.
According to the appellant, these circumstances are such that the Acting Director
was not an impartial deciding official. Id.
The administrative judge considered but rejected this argument below. RID
at 74-85. Among other things, he found that the Acting Director credibly testified
that she wrote the February 2017 memorandum because the prior report from the
investigator could have been more succinct. RID at 76. He further found that the
appellant was overstating the significance of any differences between the
investigator’s report and the Acting Director’s memorandum. RID at 76-77
(referencing IAF, Tab 15 at 5-8 (Acting Director’s memorandum), 9-40
(investigator’s report)). The administrative judge also rejected the appellant’s
contention that the deciding official essentially required that the proposing
official propose the removal before us, leaving her with no discretion in the
matter. RID at 78-85.
To establish a due process violation based on the identity of the deciding
official, an employee must assert specific allegations indicating that the agency’s
choice of the deciding official made the risk of unfairness to the appellant
4 The administrative judge found that the agency failed to prove specifications 1 and 3
of its fourth charge, RID at 63, 69, but proved all others for all the charges, RID at 51,
57, 59, 62, 68.
7
intolerably high. Dieter v. Department of Veterans Affairs , 2022 MSPB 32, ¶ 12;
Lange v. Department of Justice , 119 M.S.P.R. 625, ¶ 9 (2013). However, a
deciding official’s awareness of background information concerning the
appellant, her concurrence in the desirability to take an adverse action, or her
predisposition to impose a severe penalty does not disqualify her from serving as
a deciding official on due process grounds. Lange, 119 M.S.P.R. 625, ¶ 9.
Moreover, a deciding official’s mere knowledge of an employee’s background
does not rise to the level of a due process violation unless “that knowledge is a
basis for the deciding official’s determinations on either the merits of the
underlying charge or the penalty to be imposed.” Id. (quoting Norris v. Securities
& Exchange Commission , 675 F.3d 1349, 1354 (Fed. Cir. 2012)).
In Dieter, an appellant argued that the deciding official was biased for
several reasons, including her involvement in an investigation that led to the loss
of his ecclesiastical endorsement from an outside entity, which was a condition of
his employment with the agency and formed the basis of his removal. Dieter,
2022 MSPB 32, ¶¶ 2-4, 13. The Board was not persuaded that these
circumstances rose to the level of a due process violation. Id., ¶¶ 13-14.
In Lange, the Board similarly considered a deciding official’s knowledge of
and involvement in an appellant’s pre-removal investigation. Lange,
119 M.S.P.R. 625, ¶ 10. The administrative judge cited several facts to find that
the appellant was denied due process: the deciding official briefed the inspector
general’s office about the agency’s investigation into the appellant’s alleged
misconduct, he added the appellant’s supervisor as a subject of the investigation,
he had the initial responsibility of screening additional allegations of misconduct
that were not included in the appellant’s proposed removal, and he had received a
memorandum regarding the final investigatory report about the appellant’s
conduct. Id., ¶¶ 3-4, 10. The Board, however, disagreed with the administrative
judge. The Board explained that none of those instances of involvement were
8
relied upon by the deciding official in considering the removal and, together, they
did not illustrate an intolerably high risk of unfairness. Id., ¶ 10.
Once again, it is the appellant’s burden to establish actual bias or an
intolerable risk of unfairness amounting to a due process violation. Martinez v.
Department of Veterans Affairs , 119 M.S.P.R. 37, ¶ 10. The administrative judge
found that the appellant failed to meet this burden, and we agree. RID at 74-85.
Although the appellant has cited several cases in her petition for review,
none are particularly supportive of her position. For example, the appellant has
referred us to a couple of cases in which the Board expressed concern about a
deciding official’s involvement in underlying charges. PFR File, Tab 1 at 11-12
(citing Eichner v. U.S. Postal Service , 83 M.S.P.R. 202 (1999); House v. U.S.
Postal Service, 80 M.S.P.R. 138 (1998)). But the Board expressed this concern in
terms of deciding the appropriate penalty. Eichner, 83 M.S.P.R. 202, ¶¶ 19-20;
House, 80 M.S.P.R. 138, ¶¶ 14-15. The Board did not determine that the deciding
officials’ involvement violated employees’ due process rights in those cases.
The appellant states that the Board erred in the Eichner case by treating the
issue as concerning the penalty, rather than due process, and this “would not
happen today, post- Ward, post-Stone.” PFR File, Tab 1 at 12. Though she has
not elaborated, it seems as if the appellant is referencing Ward v. U.S. Postal
Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit
Insurance Corporation , 179 F.3d 1368, 1376-77 (Fed. Cir. 1999). But those
decisions establish that a deciding official violates an employee’s due process
rights when he relies upon new and material ex parte information as a basis for
his decisions on the merits of a proposed charge or the penalty to be imposed.
E.g., Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 23. The appellant has not
explained why Ward and Stone would require a different result in Eichner or this
appeal, and we are aware of none. The crux of the appellant’s argument seems to
be that the deciding official knew too much about the circumstances surrounding
9
the appellant’s misconduct, not that she knew and relied upon new and material
information without the appellant’s knowledge.
In another example, the appellant has referred us to a civil case in which a
judge failed to recuse himself, even though the respondent party facing a
$50 million lawsuit had recently contributed $3 million to the judge’s election.
PFR File, Tab 1 at 9 (referencing Caperton v. A.T. Massey Coal Co., Inc. ,
556 U.S. 868, 872, 883-87 (2009)). There, the U.S. Supreme Court found that a
judge violated a petitioner’s due process rights when he failed to recuse himself
from a case against a company whose chairman and principal officer had donated
$3 million to the judge’s campaign while the case was pending in the courts.
Caperton, 556 U.S. at 872, 883-87. The Court reasoned that the facts were
“extreme” and reflected a “serious, objective risk of actual bias.” Id. at 886-87.
That extreme set of facts, though, is unlike the circumstances of this appeal, in
which the deciding official was merely more familiar with the investigation and
charges against the appellant than the appellant may have preferred. Moreover,
Caperton is distinguishable from the facts before us because that case involved
the alleged bias of the judge, whereas this case involves an allegation of bias by
the deciding official, whose decision to take an adverse action against the
appellant for her alleged misconduct is subject to de novo review. See Norris,
675 F.3d at 1355-57 (recognizing that “the Board determines de novo the
underlying facts of the case such as whether the employee engaged in the alleged
misconduct and whether the agency exceeded its authority in determining that the
employee’s misconduct would adversely affect the efficiency of the service”).
The appellant has also suggested that the administrative judge erred by
crediting the testimony of the deciding official because the standard for bias is an
objective one. PFR File, Tab 1 at 13-14. However, the administrative judge did
not exclusively rely on the deciding official’s testimony. He considered and
relied upon all the surrounding circumstances while addressing the appellant’s
claim. RID at 74-85. To the extent that the administrative judge did consider and
10
rely upon the testimony of the deciding official, the appellant has not presented
any persuasive reason for us to disturb the administrative judge’s conclusion that
the testimony was credible. See Haebe v. Department of Justice , 288 F.3d 1288,
1301 (Fed. Cir. 2002) (providing that 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; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so).
The appellant has next described the deciding official as effectively
changing the report of investigation in a number of ways, such that she should not
have been involved in the proposed removal that followed. PFR File, Tab 1
at 16-24 (referencing IAF, Tab 15 at 5-8 (deciding official’s summary of the
investigatory report) 9-40 (full investigatory report)). For example, the appellant
argues that the deciding official concluded that more than two classified
documents were sent to the Riverside facility, when the report of investigation
found the matter undetermined. PFR File, Tab 1 at 17 (referencing IAF, Tab 15
at 5, 21-23). In fact, the report of investigation concluded that it was impossible
to prove whether relevant parties discovered more than 100 classified documents
at the Riverside facility, as had been alleged, since the documents in question
were destroyed, preventing a page-by-page analysis of their classification level.
IAF, Tab 15 at 21, 43. But the report went on to discuss all the surrounding
evidence, both evidence lending credence to the claim that the parties discovered
some number of classified documents and other evidence suggesting the number
was less than originally alleged. Id. at 21-23. The deciding official’s subsequent
memorandum indicated that the parties “discovered an unknown number, but
more than two, classified documents” at Riverside. Id. at 5.
Other ways in which the appellant asserts that the deciding official
effectively changed the report of investigation include conclusions about the
appellant directing contractors to replace removed classified documents with
11
unclassified documents, PFR File, Tab 1 at 17-18, the appellant’s role in the
purchase and use of an unapproved commercial shredder, id. at 18-19, the
appellant instructing contractor employees to state “if asked” that only two
classified documents were found, which she “knew to be untrue,” suggesting
higher culpability, id. at 19-20, the appellant being one of two individuals who
instructed the contractor employees to refer to the contracting officer’s
representative anyone who asked about the documents search, id. at 20-21, and
the appellant creating in the mind of a contractor employee the perception that the
appellant could end her job if she did not do what the appellant directed her to do,
and conveying to contractor employees that they were to shield the appellant if
she did something wrong, id. at 22-24. The appellant further argues that the
deciding official made additional “gratuitous findings” that the appellant
destroyed classified documents and made false statements about doing so. Id.
at 24-25.
As previously noted, the administrative judge found that the appellant
overstated the significance of any differences between the investigator’s report
and the memorandum of the individual who was both Acting Director and the
deciding official. RID at 76-77. We agree. The deciding official’s conclusions,
as stated in her memorandum, are supported by the report of investigation.
Turning back to the example described above to illustrate, the contractor that first
alerted the agency of the improprieties surrounding the Riverside trip alleged that
she and the others involved found around 100 classified documents, despite the
appellant representing that they found only 2. IAF, Tab 15 at 46. The
investigator concluded that this was “undetermined,” because “[s]ubstantiating
this allegation requires disproving a negative,” which was “impossible” because
the documents at issue were destroyed. Id. at 21. Nevertheless, the investigator
went on to note that although the appellant was supposed to have removed all
classified documents before they were sent to Riverside, the contractor’s
allegation was plausible, in part because the appellant’s “prior incidents involving
12
the mishandling of classified information undermine any claims of [the
appellant’s] competence.” Id. He further described why those who claimed to
have found around 100 classified documents were more credible than the
appellant and one other official who were also on the Riverside trip. Id. at 21-23.
In her subsequent memorandum, the deciding official seems to have felt less
bound by the absence of the now-destroyed documents. She stated that the
parties found some unknown number of classified documents during the Riverside
trip, more than the two alleged by the appellant, id. at 5, and we agree that the
investigatory report supports that conclusion. To further illustrate, the
appellant’s next claim of the deciding official altering the investigatory report is
even less convincing. PFR File, Tab 1 at 17-18. The investigatory report
indicates that the appellant directed two others to search for classified documents,
remove them, and manipulate those that remained to make it appear as if none had
been removed. IAF, Tab 15 at 23. The subsequent memorandum of the deciding
official concludes similarly. Id. at 5. In her petition, the appellant suggests that
there is some meaningful distinction between the language of these two
conclusions, but we find none. PFR File, Tab 1 at 17-18.
Broadly speaking, we recognize that the appellant has described the
deciding official as having an extensive role in the investigation of the appellant’s
alleged misconduct. E.g., id. at 15-16. We disagree, however, with the
appellant’s assertions about the resulting risk of unfairness. Once more, the
Acting Director of DPAA—who would later be the deciding official in the
appellant’s removal—initiated an investigation after receiving specific allegations
of wrongdoing. IAF, Tab 15 at 43-46. She identified 10 specific matters for the
investigator to consider. Id. at 43-44. The investigator did so and issued a
lengthy report about the same. Id. at 9-40. He enclosed hundreds of pages of
evidence. IAF, Tabs 12-14, Tab 15 at 41-93. The Acting Director then reviewed
the investigator’s evidence and findings before creating a memorandum of record,
which described her own analysis of the situation. IAF, Tab 15 at 5-8. This
13
memorandum ordered several remedial actions pertaining to classified materials
and directed the Acting Chief of Staff—who would become the proposing official
in the appellant’s removal—to consider whether any DPAA employees should be
subject to personnel actions. Id. at 7. Although the memorandum did conclude
that allegations of wrongdoing on the part of the appellant and others were
substantiated, it did not order the proposing official to initiate any particular
adverse action for any employee. To the contrary, the proposing official testified
that it was up to him to determine what, if any, discipline should be proposed, and
the administrative judge found that testimony credible. RID at 80-84. Even
assuming the deciding official influenced the proposing official’s actions, we
discern no error. The same individual may act as the proposing and deciding
official in a chapter 75 proceeding. Hidalgo v. Department of Justice ,
93 M.S.P.R. 645, ¶ 16 (2003). These are not circumstances in which the agency’s
choice of the deciding official made the risk of unfairness to the appellant
intolerably high. Accordingly, we affirm the initial decision.
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
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.
14
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.
15
(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:
16
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.
17
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. | Kammunkun_Diana_Z_SF-0752-17-0667-M-2__Final_Order.pdf | 2024-04-05 | DIANA Z. KAMMUNKUN v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-17-0667-M-2, April 5, 2024 | SF-0752-17-0667-M-2 | NP |
1,871 | https://www.mspb.gov/decisions/nonprecedential/Davis_Janice_M_DC-315H-22-0654-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANICE MOORE DAVIS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-315H-22-0654-I-1
DATE: April 4, 2024
THIS ORDER IS NONPRECEDENTIAL1
J
anice Moore Davis , Bridgeton, North Carolina, pro se.
Dominique Bogatz , Esquire, Richmond, 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 probationary termination appeal for lack of jurisdiction. For the
reasons set forth herein, we GRANT the appellant’s petition for review. We
AFFIRM as MODIFIED the administrative judge’s conclusion that the appellant
does not have a statutory right to appeal her removal, REVERSE the
administrative judge’s conclusion that the appellant failed to make a nonfrivolous
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).
allegation of a regulatory right of appeal, and REMAND the matter to the
Washington Regional Office for further adjudication consistent with this Remand
Order.
ANALYSIS
In the initial decision, the administrative judge concluded that the Board
lacks jurisdiction over this appeal, which concerns the appellant’s probationary
termination from her position in the competitive service. Initial Appeal File
(IAF), Tab 10, Initial Decision (ID) at 1-2, 4. In so concluding, he found that the
appellant had “not [met] the applicable statutory criteria that would have afforded
her Board appeal rights.” ID at 3. He acknowledged that a probationary
employee has Board appeal rights if she alleges that her termination was based on
partisan politics or marital status discrimination; however, he concluded that the
appellant had not made a nonfrivolous allegation that either partisan politics or
marital status discrimination had precipitated her removal. ID at 2-3.
We modify the initial decision to clarify why the appellant does not have a
statutory right to appeal her removal to the Board.
As indicated, the administrative judge found that the appellant does not
have a statutory right to appeal her removal. ID at 3. We agree with this
conclusion; however, we clarify the basis therefor. Only an “employee,” as
defined under 5 U.S.C. chapter 75, can appeal an adverse action to the Board.
Winns v. U.S. Postal Service , 124 M.S.P.R. 113, ¶ 8 (2017), aff’d sub nom.
Williams v. Merit Systems Protection Board , 892 F.3d 1156 (Fed. Cir. 2018); see
5 U.S.C. §§ 7511(a)(1), 7513(d). At the time of the appellant’s March 28, 2022
appointment, in order to qualify as an “employee” of the Department of Defense
with Board appeal rights under chapter 75, an individual appointed to the
competitive service had to show that she was not serving a probationary period or
had completed 2 years of “current continuous service” under appointment to a2
permanent position.2 IAF, Tab 8 at 7-10; see 5 U.S.C. § 7511(a)(1)(A); 10 U.S.C.
§ 1599e; see also Bryant v. Department of the Army , 2022 MSPB 1, ¶¶ 8-10
(finding that the appellant, who was appointed to a competitive service
Department of Defense position while 10 U.S.C. § 1599e was in effect, was
subject to a 2-year probationary period). Here, the record indicated that the
appellant was removed from her position after only approximately 5 months of
Federal service, and she has not alleged otherwise. IAF, Tab 1 at 1, Tab 8
at 7-10, 15. Accordingly, we agree that the appellant does not meet the definition
of “employee” under 5 U.S.C. chapter 75 and, therefore, does not have a statutory
right to appeal her removal to the Board.
We reverse the administrative judge’s conclusion that the appellant failed to make
a nonfrivolous allegation of a regulatory right to appeal her removal.
We agree with the administrative judge’s conclusion that the appellant did
not allege that her termination was based upon either partisan politics or marital
status, which would give rise to a regulatory right of appeal under 5 C.F.R.
§ 315.806(b). ID at 2-3; see Blount v. Department of the Treasury , 109 M.S.P.R.
174, ¶ 5 (2008). The administrative judge, however, did not consider that,
under 5 C.F.R. § 315.806(c), a probationary employee also has a regulatory right
of appeal on the grounds that the agency terminated her for reasons arising
preappointment without complying with the procedural requirements of 5 C.F.R.
§ 315.805, e.g., advance written notice of the proposed termination and the
opportunity to provide a written response. See Blount, 109 M.S.P.R. 174, ¶ 5.
2 Congress enacted the National Defense Authorization Act for Fiscal Year 2016
(2016 NDAA) on November 25, 2015. Pub. L. No. 114-92, 129 Stat. 726. The 2016
NDAA extended the probationary period for an individual appointed to a permanent
competitive service position at the Department of Defense to a 2-year probationary
period and provided that such individual only qualifies as an “employee” under
5 U.S.C. § 7511(a)(1)(A)(ii) if she has completed 2 years of current continuous service.
Pub. L. No. 114-92, § 1105, 129 Stat. 726, 1023-24 (codified, as relevant here, at
10 U.S.C. § 1599e and 5 U.S.C. § 7511(a)(1)(A)(ii)). The National Defense
Authorization Act for Fiscal Year 2022, enacted on December 27, 2021, repealed
10 U.S.C. § 1599e and the 2-year probationary period, effective December 31, 2022.
Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950.3
Here, although the Standard Form 50 (SF-50) effecting the appellant’s
removal indicated that she was removed for “[d]isrespectful behavior,” IAF,
Tab 8 at 15, the agency’s August 12, 2022 notice of termination, of which the
appellant submitted a copy, stated that she was removed because she had failed to
“demonstrate fitness for continued employment” and had “exhibited a pattern of
conduct and performance . . . inconsistent with that required of [her position],”
IAF, Tab 3 at 2-4, Tab 8 at 12-15.3 The termination notice discussed, among
other things, how the appellant had misrepresented her computer-related skills on
her résumé. IAF, Tab 8 at 13. To this end, the notice stated as follows: “[A]
process confirmed that your computer skills were in fact minimal, as previously
reported by [another agency employee]. I explained that you don’t have the
computer/application skills you proclaim to have, and which are listed on your
[résumé].” Id. The letter also provided as follows: “I reviewed your [résumé]
which lists your skills using Microsoft applications of Word, Excel, Outlook,
Power Point, Quick Books and E -procurement systems. Additionally, it states
you are a Certified Acquisition Professional. Your Acquisition Career Brief does
not have those credentials recorded.” Id. In her filings before the administrative
judge, the appellant referenced the agency’s allegations that she had provided
false information on her résumé and asserted, among other things, that the agency
had falsely accused her of lying. E.g., IAF, Tab 9 at 11.
Based on the above, we find that the appellant has made a nonfrivolous
allegation that the agency effected her removal for reasons based in part on
conditions arising before her appointment; indeed, the appellant alleged, and the
decision letter suggested, that her removal was precipitated, at least in part, by
the agency’s belief that she had falsified her résumé. See Walker v. Department
of the Army, 119 M.S.P.R. 391, ¶ 14 (2013) (explaining that preappointment
reasons, or “conditions arising before appointment,” include matters such as the
3 Although the August 12, 2022 termination notice indicated that the appellant’s
removal was “effective immediately,” the corresponding SF-50 indicated that the
appellant was removed on August 19, 2022. IAF, Tab 8 at 12, 15. 4
falsification of an employment application). Moreover, the record suggests that
the appellant was not provided with written notice and an opportunity to respond
to her notice of termination, i.e., that the agency failed to comply with the
procedural requirements of 5 C.F.R. § 315.805. IAF, Tab 8 at 12. We therefore
find that the appellant has made nonfrivolous allegations of Board jurisdiction
and that she is entitled to a jurisdictional hearing; accordingly, we remand the
matter. See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994)
(explaining that an appellant is entitled to a jurisdictional hearing if the appellant
makes a nonfrivolous allegation of Board jurisdiction).
On remand, the administrative judge shall determine if the appellant has
proven, by preponderant evidence, that the agency removed her, at least in part,
for preappointment reasons and failed to comply with the requirements
of 5 C.F.R. § 315.805. See 5 C.F.R. § 1201.56(b)(2)(i)(A). If he finds that the
appellant has established Board jurisdiction on this basis, the merits of the
agency’s decision to remove the appellant are not before the Board; rather, the
sole issue before the Board is whether the agency’s failure to follow the
procedures set forth in section 315.805 constituted harmful error. See
LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 7 (2016). If
harmful error is established, then the agency’s action must be set aside.4 Id.
The appellant’s assertion that she is a whistleblower does not warrant a different
outcome.
The appellant vaguely asserts on review that she would “like to change
[her] plead [sic] to a protected whistleblower, by reporting [her] supervisor [for]
abuse of authority.” Petition for Review (PFR) File, Tab 1 at 1.5 Because the
4 On her initial appeal form, the appellant checked a box indicating that she wished to
appeal a “[n]egative suitability determination.” IAF, Tab 1 at 3. On remand, the
administrative judge shall clarify the basis for this apparent claim.
5 The appellant provides several documents with her petition for review, to include
documents regarding her dental health, documents regarding training, letters of
recommendation, various annotated email correspondence, and documents suggesting
that the appellant previously served in the U.S. Air Force. PFR File, Tab 1 at 18-103.5
appellant did not discernably raise this allegation prior to the issuance of the
initial decision, the administrative judge did not inform her of the applicable
burden of proof with respect to establishing Board jurisdiction for individual right
of action (IRA) appeals pursuant to 5 U.S.C. § 1221. See Burgess v. Merit
Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985). The Board has
jurisdiction over such appeals only if, among other things, the appellant has
exhausted her administrative remedies before the Office of Special Counsel
(OSC). Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 9
(2011). Here, there is nothing in the record to suggest that the appellant has
exhausted her OSC administrative remedies. IAF, Tab 1 at 4; see Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶¶ 11, 14 (explaining the
requirements of exhaustion). Accordingly, we discern no basis for Board IRA
jurisdiction at this time. Should the appellant exhaust her administrative
remedies with OSC, she may file a separate IRA appeal in this regard. See
5 U.S.C. §§ 1221, 1214; 5 C.F.R. part 1209.
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 do not warrant a
different outcome. 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).6
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Davis_Janice_M_DC-315H-22-0654-I-1_Remand_Order.pdf | 2024-04-04 | JANICE MOORE DAVIS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-315H-22-0654-I-1, April 4, 2024 | DC-315H-22-0654-I-1 | NP |
1,872 | https://www.mspb.gov/decisions/nonprecedential/DeMuth_Jason_D_CH-0752-22-0374-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON D. DEMUTH,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-22-0374-I-1
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jason D. DeMuth , Frankfort, Kentucky, pro se.
Bobbi K. Mihal , Esquire, St. Louis, 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
dismissed his removal appeal with prejudice for failure to prosecute. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; 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).
BACKGROUND
In July 2022, the appellant filed an appeal challenging his removal from
Federal service. Initial Appeal Form (IAF), Tab 1. He mailed his initial appeal
form to the regional office and did not register as an e-filer. Id. at 27. On
August 3, 2022, the administrative judge issued an order scheduling a preliminary
status conference for August 12, 2022. IAF, Tab 6 at 1. The order was mailed to
the appellant at the address he listed on his initial appeal form. IAF, Tab 1 at 1,
Tab 6 at 2. The appellant did not appear for the status conference. IAF, Tab 7
at 1. According to the administrative judge, the agency called the appellant on
the day of the conference and left a voicemail on his phone. Id. The
administrative judge issued an order rescheduling the status conference for
August 26, 2022, which was sent to the appellant by mail. Id. at 1-2. The order
warned that failure to participate in the conference could result in sanctions,
including dismissal of the appeal. Id. at 1. The appellant did not appear for the
rescheduled status conference. IAF, Tab 8 at 1. Accordingly, the administrative
judge issued an order instructing the appellant to show cause for his failure to
prosecute and warning him that failure to respond by September 9, 2022, could2
result in dismissal of the appeal. IAF, Tab 8 at 1-2. The appellant did not file a
response. On September 12, 2022, the administrative judge issued an initial
decision dismissing the appeal with prejudice as a sanction for the appellant’s
failure to prosecute. IAF, Tab 9, Initial Decision (ID) at 1-4. The appellant has
filed a timely petition for review and the agency has filed a response in
opposition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Absent a showing of abuse of discretion, the Board will not reverse an
administrative judge’s determination regarding sanctions. Williams v. U.S. Postal
Service, 116 M.S.P.R. 377, ¶ 7 (2011). The sanction of dismissal with prejudice
may be imposed if a party fails to prosecute or defend an appeal. Leseman v.
Department of the Army , 122 M.S.P.R. 139, ¶ 6 (2015); 5 C.F.R. § 1201.43(b).
An administrative judge may impose sanctions upon the parties as necessary to
serve the ends of justice. 5 C.F.R. § 1201.43.
On review, the appellant asserts that, on July 29, 2022, he moved from the
address he listed in his initial appeal form. PFR File, Tab 1 at 1. He states that,
after he moved, someone gathered his mail and brought it to him “about 3 to
4 weeks later.” Id. He provided his new mailing address with his petition for
review. Id. Regarding the status conference, the appellant stated that he was
unable to answer his phone because he “did not have a sufficient amount of time
to work the conference call into [his] schedule.” Id. With his petition for review,
the appellant also filed a statement purportedly written by a union steward. Id.
at 2. Although most of the statement pertains to the merits of the appellant’s
removal, it also asserts that the appellant “did not receive a lot of his mail and
was unable to join in on the conference call.” Id.
An appellant is responsible for notifying the Board of a change of address.
West v. Equal Employment Opportunity Commission , 69 M.S.P.R. 310, 313
(1996); 5 C.F.R. § 1201.26(b)(2). Under these circumstances, we find that the3
appellant did not act diligently because he waited almost 3 months after he moved
to provide the Board with his new address. PFR File, Tab 1 at 1; see Graham v.
U.S. Postal Service , 32 M.S.P.R. 572, 574 (1987) (finding that the appellant’s
failure to notify the regional office of his new address did not establish good
cause for an untimely filing). Even assuming the appellant received the
administrative judge’s orders 4 weeks after they were sent, at a minimum, he
would have received the acknowledgment order2 and the preliminary status
conference order before the initial decision was issued. IAF, Tabs 2, 6. He has
not explained why he took no action to prosecute his appeal when he received
those orders or when the agency called him on August 12, 2022. IAF, Tab 7 at 1;
PFR File, Tab 1 at 1. We find that the administrative judge did not abuse her
discretion in sanctioning the appellant for his failure to exercise due diligence in
prosecuting his appeal. See Turner v. U.S. Postal Service , 123 M.S.P.R. 640,
¶ 16 (2016) (upholding the dismissal of an appeal with prejudice when, after
registering as an e-filer, the appellant took no steps to pursue his appeal), aff’d
per curiam, 681 F. App’x 934 (Fed. Cir. 2017); cf. Sullivan v. Department of
Veterans Affairs , 86 M.S.P.R. 117, ¶ 7 (2000) (finding that the administrative
judge abused her discretion in dismissing the appeal for failure to prosecute
because the appellant had attempted to participate in the proceedings by filing a
timely, albeit incomplete, pleading and leaving a voicemail for the administrative
judge regarding his attempts to comply with an order).
Insofar as the appellant’s remaining arguments pertain to the merits of the
underlying removal, we do not consider them because they are not relevant to the
issue of whether the administrative judge abused her discretion in dismissing this
appeal with prejudice. PFR File, Tab 1 at 2. We therefore deny the petition for
review and affirm the initial decision.
2 The acknowledgment order was sent to the appellant more than 2 weeks before he
moved and noted that the appellant was personally responsible for prosecuting his case
in a timely manner. IAF, Tab 2 at 11, 17. It also contained instructions for registering
as an e-filer. Id. at 16. 4
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.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 | DeMuth_Jason_D_CH-0752-22-0374-I-1__Final_Order.pdf | 2024-04-04 | JASON D. DEMUTH v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-22-0374-I-1, April 4, 2024 | CH-0752-22-0374-I-1 | NP |
1,873 | https://www.mspb.gov/decisions/nonprecedential/Borlongan_Herminio_B_SF-0831-22-0336-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HERMINIO B. BORLONGAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-22-0336-I-1
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Herminio B. Borlongan , Olongapo City, Philippines, pro se.
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 administrative judge’s
initial decision, which dismissed for lack of jurisdiction his appeal of the
agency’s initial decision denying his application for deferred retirement benefits
under the Civil Service Retirement System. On petition for review, the appellant
renews his argument that the Board has jurisdiction over his appeal because the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
agency refused or improperly failed to respond to his request for reconsideration
of its initial decision.2 Generally, we grant petitions such as this one only in the
following circumstances: the administrative judge’s 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
administrative judge’s initial decision, which is now the Board’s final decision.3
5 C.F.R. § 1201.113(b).
2 Although the appellant claims on review that he never received the administrative
judge’s acknowledgment order, which set forth the evidentiary burden on the
jurisdictional issue, the administrative judge’s initial decision provided sufficient notice
of the same. See Melendez v. Department of Homeland Security , 112 M.S.P.R. 51, ¶ 9
(2009) (finding that the lack of notice regarding an issue can be cured if the initial
decision puts the appellant on notice of what he must do to meet his burden on petition
for review); Mapstone v. Department of the Interior , 106 M.S.P.R. 691, ¶ 9 (2007)
(same). Specifically, it explained that the appeal was dismissed based on the lack of
evidence that the appellant had requested a reconsideration decision from the agency.
Initial Appeal File, Tab 6, Initial Decision at 4-5. Despite the opportunity to present
such evidence on review, the appellant has not done so.
3 There is a question regarding the timeliness of the appellant’s petition for review, but
we need not address that issue because the petition for review fails to meet the Board’s
criteria for review. See Pacilli v. Department of Veterans Affairs , 113 M.S.P.R. 526,
¶ 12, aff’d, 404 F. App’x 466 (Fed. Cir. 2010). 2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
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.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Borlongan_Herminio_B_SF-0831-22-0336-I-1__Final_Order.pdf | 2024-04-04 | HERMINIO B. BORLONGAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-22-0336-I-1, April 4, 2024 | SF-0831-22-0336-I-1 | NP |
1,874 | https://www.mspb.gov/decisions/nonprecedential/Woldeab_Damene_W_AT-4324-22-0505-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAMENE WOLDESENBET
WOLDEAB,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
AT-4324-22-0505-I-1
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
amene Woldesenbet Woldeab , Lawrenceville, Georgia, pro se.
Kristin Murrock , Suitland, 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
denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301-4335). On petition for review, the appellant requests the
Board “to kindly review [his] case.” Petition for Review File, Tab 1. Generally,
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).
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 | Woldeab_Damene_W_AT-4324-22-0505-I-1_Final_Order.pdf | 2024-04-04 | DAMENE WOLDESENBET WOLDEAB v. DEPARTMENT OF COMMERCE, MSPB Docket No. AT-4324-22-0505-I-1, April 4, 2024 | AT-4324-22-0505-I-1 | NP |
1,875 | https://www.mspb.gov/decisions/nonprecedential/Chang_AlbertDC-0752-22-0446-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALBERT CHANG,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-0752-22-0446-I-1
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
lbert Chang , Potomac, Maryland, pro se.
Sandra Santos , Fairfield, 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 claiming harassment and retaliation 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
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. We AFFIRM the initial decision
except as expressly MODIFIED as follows: (1) we VACATE the administrative
judge’s finding that the appellant made only generalized allegations and sweeping
conclusions; and (2) we VACATE the administrative judge’s reasoning pertaining
to the agency’s termination of the appellant’s accused harasser.
BACKGROUND
The appellant retired from his position as a GS-14 Supervisory Financial
and Loan Business Specialist in Washington, District of Columbia, in December
2021. Initial Appeal File (IAF), Tab 1 at 1, 7, Tab 7 at 18. He filed an equal
employment opportunity (EEO) complaint asserting that he was forced to retire
due to discrimination based on his race and national origin and retaliation for
prior opposition to harassment. IAF, Tab 1 at 8-44. He received a final agency
decision in May 2022. Id. This appeal followed. Id. at 1, 3.
The administrative judge issued a jurisdictional order providing notice to
the appellant that his appeal would be dismissed absent a nonfrivolous allegation
that his retirement was involuntary. IAF, Tab 5 at 2. Following the parties’
submissions, IAF, Tabs 6-8, the administrative judge dismissed the appeal for
lack of jurisdiction without holding the appellant’s requested hearing, IAF, Tab 9,
Initial Decision (ID) at 11. 2
The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 3, and the agency has responded in opposition to his petition, PFR File,
Tab 4. The appellant has replied to the agency’s response. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
In the initial decision, the administrative judge found that the appellant did
not allege facts which, if proven, could establish that his decision to retire was
involuntary. ID at 10-11. On review, the appellant reasserts that he had no
choice but to retire because he had been subjected to a hostile work environment
since May 2020. PFR File, Tab 3 at 6, Tab 6 at 4-5; IAF, Tab 1 at 5.
An employee-initiated action, such as a resignation or retirement, is
presumed to be voluntary and generally is not an appealable adverse action. See
Shoaf v. Department of Agriculture , 260 F.3d 1336, 1340-41 (Fed. Cir. 2001).
However, the Board has jurisdiction over an employee-initiated action as a
“constructive” adverse action under 5 U.S.C. chapter 75 if the appellant
establishes the following: (1) that he lacked a meaningful choice, and (2) this
was because of the agency’s improper actions. See Bean v. U.S. Postal Service ,
120 M.S.P.R. 397, ¶ 11 (2013) (setting forth a two-part jurisdictional standard as
a unifying principle for all constructive adverse action appeals). To obtain a
jurisdictional hearing, the appellant must make nonfrivolous allegations of a
constructive adverse action. See Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 642-43 (Fed. Cir. 1985); Bean, 120 M.S.P.R. 397, ¶¶ 11, 14. An
allegation generally will be considered nonfrivolous when, under oath or penalty
of perjury, an individual makes an allegation that (1) is more than conclusory;
(2) is plausible on its face; and (3) is material to the legal issues in the appeal.
5 C.F.R. § 1201.4(s).
Turning to the appellant’s allegations, he has been treated for depression
and retired for the sake of his mental health in response to unbearable harassment
based on his race or national origin that went unaddressed by his agency. IAF,3
Tab 6 at 4. He did not allege any specific medical restrictions that were
incompatible with his assigned duties. Cf. Bean, 120 M.S.P.R. 397, ¶¶ 11-13
(explaining that the first part of the two-part jurisdictional standard is met if an
appellant has no option but to work outside of medical restrictions).
Nevertheless, we examine the appellant’s factual allegations to determine whether
he has presented a plausible claim the agency engaged in a course of action that
made working conditions so difficult or unpleasant that a reasonable person in the
appellant’s position would have felt compelled to retire.2 See Axsom v.
Department of Veterans Affairs , 110 M.S.P.R. 605, ¶ 12 (2009); see also Bean,
120 M.S.P.R. 397, ¶ 11 (explaining the first part in the two-part jurisdictional
requirement in constructive adverse action appeals—that the appellant lacked a
meaningful choice).
We disagree with the administrative judge’s statement that the appellant
made only generalized allegations of harassment and discrimination and presented
sweeping conclusions, not facts. ID at 9. The appellant supplied the final agency
decision on his EEO complaint, which contains his specific factual allegations.
IAF, Tab 1 at 8-44. Namely, the appellant set forth specific emails from the
accused harasser3 and specific conduct by the accused harasser in meetings. Id.
For example, the appellant alleged that his colleague harassed him by not
capitalizing the first letter of his name in several emails, assigning 55 projects to
his staff without his consent, refusing to meet with him on work -related matters,
requesting via email that the appellant stop emailing him, and interrupting the
appellant’s discussion of a technical issue during a meeting by yelling, “this is
ridiculous!” IAF, Tab 1 at 9, 26, 28. The appellant also set forth details
regarding his complaints to managers about the alleged harassment as well as the
2 At the jurisdictional stage, we consider the appellant’s allegations of race
discrimination or retaliation only insofar as they relate to this issue. See Pickens v.
Social Security Administration , 88 M.S.P.R. 525, ¶ 6 (2001); Markon v. Department of
State, 71 M.S.P.R. 574, 577-80 (1996).
3 These emails are evidenced in the agency’s file. IAF, Tab 7 at 48-59, 62-64, 73-85.4
ways in which they failed to appropriately address his complaints. IAF, Tab 1
at 5, 12-13, 26-33, Tab 8 at 6-7, 11. Therefore, we vacate the statement in the
initial decision. Nevertheless, the administrative judge discussed the appellant’s
specific factual allegations as background and appears to have considered them in
his decision. ID at 2-4, 10-11. We agree with his conclusion that the facts
described by the appellant did not rebut the presumption of the voluntariness of
his retirement because a reasonable person in his position would not have felt
compelled to retire under such circumstances. ID at 10-11.
Significantly, the administrative judge reasoned that the departure of the
appellant’s accused harasser from the agency in early September 2021, a few
months prior to the appellant’s December 2021 retirement, made his allegations
of an ongoing intolerable working conditions implausible. ID at 9; IAF, Tab 8
at 6-7. We generally agree with this reasoning. Events temporally close to an
employee’s retirement are usually the most probative evidence of involuntariness.
See Shoaf, 260 F.3d at 1342-43 (recognizing, however, that all events must be
considered in context, i.e., as part of the totality of the circumstances). Here, the
main cause of the alleged hostile work environment was no longer a factor by the
time the appellant decided to retire. IAF, Tab 1 at 5, Tab 7 at 38. We note that
the appellant alleged, however, that his depression continued through his
retirement because of the agency’s mishandling of its anti-harassment policy.
IAF, Tab 1 at 5, 13-15, Tab 8 at 6-8; PFR File, Tab 3 at 4-6. He alleged that
Human Resources refused to supply him with a report of its investigation into his
harassment complaint; an unrelated EEO decision issued in November 2021 found
a violation of the Rehabilitation Act in another division headed by his supervisor;
and, upon being told by the appellant that he was considering retirement, his
supervisor suggested that he wished him to leave quietly. IAF, Tab 1 at 5, 13-15,
Tab 8 at 6-8. We find that these circumstances, considered in the context of all
the other events alleged by the appellant beginning in May 2020, could not be
viewed as so difficult or unpleasant as to compel a reasonable person to retire.5
IAF, Tab 1 at 5, 9. Thus, the first part of the two-part jurisdictional standard in
Bean is not met. See Bean, 120 M.S.P.R. 397, ¶ 11. We need not address the
second part, i.e., the agency’s culpability, in this case. Id.
We modify the administrative judge’s decision in one other, minor respect.
We vacate the administrative judge’s reasoning that the agency’s termination of
the appellant’s accused harasser undermined his assertion that the agency failed
to respond to his complaints such that he had no choice but to retire. ID at 9-10;
IAF, Tab 8 at 6-7. As the appellant noted correctly in his petition for review, the
agency did not terminate the appellant’s accused harasser: he separated from the
agency under 5 C.F.R. § 715, which covers non-disciplinary separations, and
began employment at another Federal agency. PFR File, Tab 3 at 5, 9; IAF,
Tab 7 at 38, 70, 98, 101. This factual finding is immaterial to our conclusion that
the appellant has not presented nonfrivolous allegations of working conditions
under which a reasonable employee would have felt compelled to retire.
Lastly, the appellant submits evidence for the first time in his petition for
review. He presents evidence of his antidepressant medications, which he states
were prescribed for symptoms caused by the alleged harassment. PFR File, Tab 3
at 4-5, 7-8. He also submits a March 2022 memorandum from the agency’s
human resources office, which clarifies information already in the record about
his accused harasser’s separation from the agency . PFR File, Tab 3 at 9; IAF,
Tab 7 at 98, 101. We decline to consider evidence submitted by the appellant for
the first time with his petition for review because he has not shown that it was
unavailable before the close of the record before the administrative judge. 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, the new 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). 6
Thus, we affirm the initial decision, which dismissed his appeal for lack of
jurisdiction, as modified.
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).
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
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 on8
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) or9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
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 | Chang_AlbertDC-0752-22-0446-I-1_Final_Order.pdf | 2024-04-04 | ALBERT CHANG v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-22-0446-I-1, April 4, 2024 | DC-0752-22-0446-I-1 | NP |
1,876 | https://www.mspb.gov/decisions/nonprecedential/Townsend_KevinDC-3443-23-0138-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN TOWNSEND,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3443-23-0138-I-1
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Townsend , Arlington, Virginia, pro se.
Mary Bradley and Richard Kane , 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 for lack of jurisdiction his appeal alleging that the agency improperly
designated him as a temporary appointee before converting him to a permanent
appointment. On petition for review, the appellant simply asks the Board to add a
document filed below to his “official records.” 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 and AFFIRM the initial
decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 On review, the appellant also submitted a Standard Form 52 regarding his conversion
to a Career Appointment. Petition for Review File, Tab 1 at 4-5. However, the
appellant offered no explanation as to why this document is new or material, and we
have not considered it. Id. at 3; see Russo v. Veterans Administration , 3 M.S.P.R. 345,
349 (1980); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R.
§ 1201.115(d).
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
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 | Townsend_KevinDC-3443-23-0138-I-1__Final_Order.pdf | 2024-04-04 | KEVIN TOWNSEND v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3443-23-0138-I-1, April 4, 2024 | DC-3443-23-0138-I-1 | NP |
1,877 | https://www.mspb.gov/decisions/nonprecedential/Waguespack_JohnAT-0831-22-0284-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN WAGUESPACK,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-22-0284-I-1
DATE: April 4, 2024
THIS ORDER IS NONPRECEDENTIAL1
John Waguespack , McCalla, Alabama, pro se.
Karla W. Yeakle , 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)
denying the appellant’s application for payment of the decedent Joan Hines’
lump-sum death benefit under the Civil Service Retirement System (CSRS). 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).
2
VACATE the initial decision, and REMAND the case to OPM for a new final
decision.
BACKGROUND
The appellant is the son of Ms. Hines, a former Federal employee covered
under the CSRS. Initial Appeal File (IAF), Tab 1 at 9, Tab 5 at 16. Ms. Hines
retired effective August 1988, having designated her then-husband, Howard
Hines, as her sole beneficiary. IAF, Tab 5 at 19, 21, 41. According to OPM,
Ms. Hines divorced Mr. Hines in September 1995.2 Id. at 5. Ms. Hines died on
December 21, 2021. Id. at 16. Her Certificate of Death, issued by the State of
Louisiana, states that at the time of her death she was widowed. Id.
On or about February 23, 2022, the appellant filed an application with
OPM indicating that he was Ms. Hines’s designated beneficiary and was seeking
payment of any lump-sum death benefit. IAF, Tab 5 at 12-15. OPM denied the
appellant’s claim in a March 16, 2022 final decision, finding that the appellant
was not entitled to a share of the lump-sum death benefit because he was not the
designated beneficiary. Id. at 10.
The appellant filed this appeal of OPM’s final decision to the Board but did
not request a hearing. IAF, Tab 1 at 1. The administrative judge issued an order
advising the parties that he would close the record. IAF, Tab 6. The parties did
not make any additional submissions following the order. After the record
closed, the administrative judge issued an initial decision. IAF, Tab 8, Initial
Decision (ID) at 1. He affirmed OPM’s determination that Mr. Hines was
Ms. Hines’s designated beneficiary and was entitled to the lump-sum death
benefit. ID at 3.
2 OPM has not provided any supporting documentation for this assertion, but the
appellant also has alleged his mother divorced Mr. Hines in September 1995. Petition
for Review File, Tab 1 at 1. Therefore, for purposes of our discussion here, we assume
the parties’ assertion is true.
3
On review, the appellant reasserts that he is the only surviving child of
Ms. Hines. Petition for Review (PFR) File, Tab 1 at 1. He also argues for the
first time that Mr. Hines died on July 18, 1999. Id. He has provided a March
2022 Judgment of Possession in which a Louisiana court judge determined the
appellant was Ms. Hines’s “sole and universal legatee” and was entitled to
possession of her entire estate. Id. at 2. OPM has responded to the petition for
review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
Because the administrative judge did not advise the appellant regarding his
burden, we consider his new argument and evidence.
The Board requires an administrative judge to explain the burdens and
methods of proof for any claim as to which the appellant has some or all of the
burden of proof in an appeal. MSPB Judges’ Handbook, Ch. 9, § 7. He must
fulfill this requirement even if an appellant could have inferred such knowledge
from other sources. Harless v. Office of Personnel Management , 71 M.S.P.R.
110, 113 (1996). This obligation is particularly significant when, as here, an
appellant is pro se. Id.; IAF, Tab 1 at 6. Below, the administrative judge advised
the appellant only that he bore the burden of proving by preponderant evidence
that he was entitled to the retirement benefit he was seeking. IAF, Tab 7 at 1-2
(citing Cheeseman v. Office of Personnel Management , 791 F.2d 138, 140-41
(Fed. Cir. 1986)). However, the administrative judge provided no additional
information to the appellant as to how to prove his claim until issuing the initial
decision. IAF, Tabs 2, 6-7; ID at 2-3.
Further, it appears likely this error prejudiced the appellant in the
adjudication of this matter. Under 5 U.S.C. § 8342(c),3 a CSRS lump-sum death
3 In his initial decision, the administrative judge cited to 5 U.S.C. § 8424(d), which is
the lump-sum death benefit provision under the Federal Employees’ Retirement System
(FERS). ID at 2-3. We find that this citation error did not affect the outcome of the
appeal, and is thus harmless, because the order of precedence under CSRS and FERS is
the same. 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
4
benefit is to be paid, as relevant here, to the individual or individuals surviving
the employee and alive at the date title to the payment arises in the following
order: (1) to the designated beneficiary in a signed and witnessed writing
received by OPM before the employee’s death; (2) to the widow or widower of
the employee; and (3) if none of the above, to the child or children of the
employee and descendants of deceased children by representation.
The appellant asserts for the first time on review that Mr. Hines
predeceased Ms. Hines. PFR File, Tab 1 at 1. He provides the Louisiana court
judgment that he is the “sole and universal legatee” of Ms. Hines. Id. at 2-3. The
appellant was not apprised in OPM’s final decision, its response to the appeal, or
the administrative judge’s orders of the potential significance of the death of Mr.
Hines, whom Ms. Hines designated as her beneficiary in 1975. IAF, Tab 5
at 4-11, 19, Tabs 6-7. It appears likely that he submitted this evidence, and
argued Mr. Hines had died, in response to the initial decision. Specifically, the
administrative judge advised the appellant for the first time in the initial decision
of the order of precedence, and also that lump-sum benefits are made to
individuals who survive the annuitant and are alive when title to the payment
arises. ID at 2-3. Therefore, in the interest of justice, and so that the appellant is
not fighting a fog of generality, we address the appellant’s new argument here.
See Harless, 71 M.S.P.R. at 113 (remanding an appeal to the regional office
because the administrative judge did not issue a written order explaining to the
appellant that he should submit additional evidence to support his claim of
financial hardship in connection with a repayment schedule ).
We remand the matter to OPM for further explanation of its determination and
consideration of the appellant’s new evidence.
The appellant’s new evidence that he is Ms. Hines’s “legatee” may support
his claim that Mr. Hines was not alive at Ms. Hines’s death. Mr. and Ms. Hines
resided together, and Ms. Hines resided at the time of her death and died, in
provides no basis for reversal of an initial decision).
5
Louisiana. IAF, Tab 5 at 16, 19. The Board has applied substantive state law to
determine the proper recipient of a lump-sum benefit when necessary to identify a
member of the statutory class in the order of precedence. Wengel v. Office of
Personnel Management , 100 M.S.P.R. 11, ¶ 8 (2005); see Alvarez v. Office of
Personnel Management , 64 M.S.P.R. 534, 536-38 (1994) (applying the law of the
Philippines to presume that a decedent’s widow had passed away, thus entitling
the appellant to a lump-sum death benefit). Louisiana law defines a legatee as
someone who is a successor as the result of a valid will. La. Civ. Code Ann. arts.
874, 876. The determination that the appellant is the sole successor named in Ms.
Hines’s will does not prove it is more likely than not that Mr. Hines predeceased
Ms. Hines. Ms. Hines may not have named Mr. Hines in her will for a number of
reasons, including that they were divorced 26 years before her death.4
Further, we observe that OPM has not stated whether Ms. Hines cancelled
her designation of Mr. Hines as her beneficiary in a signed and witnessed writing
received by OPM before her death. IAF, Tab 5 at 19; see 5 U.S.C. § 8342(c). No
designation, change, or cancellation of a beneficiary in a will, divorce decree, or
other document has any force or effect if it is not so executed and filed. 5 C.F.R.
§ 831.2005(b); see Mackey v. Office of Personnel Management , 54 M.S.P.R. 158,
162 (1992) (finding no evidence that a decedent filed with OPM a copy of his
divorce decree, which allegedly cancelled his designation of beneficiary, and thus
the requirements of 5 U.S.C. § 8342(c) were not satisfied). Because OPM is most
likely to have evidence relating to any change in beneficiary, it should clearly
4 An obituary available online for Ms. Hines indicates that Ms. Hines was survived by
the appellant and seven grandchildren, as well as that Mr. Hines predeceased Ms. Hines.
Obituary for Joan Mary Schulz, Times-Picayune (Dec. 27-28, 2021),
https://obits.nola.com/us/obituaries/nola/name/joan-schulz-obituary?id=32005395 (last
visited Apr. 3, 2024). We do not express an opinion here as to what weight to give this
obituary or its impact on the appellant’s benefit claim. See 5 U.S.C. § 8342(c)
(providing that not only children, but also “descendants of deceased children by
representation” are third in the order of precedence for a lump-sum death benefit);
5 C.F.R. § 1201.64 (providing that the Board may take official notice of matters of
common knowledge);
6
resolve this question in a new reconsideration decision so that the Board can
make findings on a complete record.
In a case similar to the instant appeal, the Board held that when OPM
issued a final decision denying an application for lump-sum death benefits
without resolving the dispositive issue of the validity of a designation of
beneficiary, the appropriate disposition was to remand the case to OPM for
reconsideration of the matter. Stubblefield v. Office of Personnel Management ,
60 M.S.P.R. 455, 457, 460 (1994). Based on the record before us, we find that
OPM must address whether the appellant is eligible to receive all or a portion of
the lump-sum benefit due to the alleged 1999 death of Mr. Hines and whether Ms.
Hines made a valid change in her beneficiary designation. Because OPM did not
address these dispositive issues in its final decision, we remand to OPM for a new
final decision.5 IAF, Tab 5 at 10-11; see Stubblefield, 60 M.S.P.R. at 460.
ORDER
For the reasons discussed above, we remand this case to OPM for further
adjudication in accordance with this Remand Order.
OPM shall issue a new reconsideration decision addressing the appellant’s
new evidence and any evidence relating to any change in the decedent’s
beneficiary. OPM shall issue the new reconsideration decision within 60 days of
the date of this Order and advise the appellant of his right to file an appeal with
the Board if he disagrees with that new decision.
We further ORDER OPM 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. We ORDER the appellant to provide all necessary
5 In light of our decision to remand this matter to OPM, we need not address the
appellant’s argument that he was not contacted by the administrative judge for the close
of record conference. PFR File, Tab 1 at 1; 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).
7
information OPM requests to help it carry out the Board’s Order. The 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 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
OPM did not fully carry out the Board’s Order. 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. 5 C.F.R. § 1201.182(a).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Waguespack_JohnAT-0831-22-0284-I-1__Remand_Order.pdf | 2024-04-04 | JOHN WAGUESPACK v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-22-0284-I-1, April 4, 2024 | AT-0831-22-0284-I-1 | NP |
1,878 | https://www.mspb.gov/decisions/nonprecedential/Whelpdale_Robert_V_DA-0752-22-0063-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT V. WHELPDALE,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-0752-22-0063-I-1
DATE: April 4, 2024
THIS ORDER IS NONPRECEDENTIAL1
Robert V. Whelpdale , Athens, Texas, pro se.
Nathan Atkinson , Kansas City, Kansas, 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 of an allegedly involuntary
reassignment that resulted in a reduction in pay and grade. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the appeal to the Dallas 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 employed as a GS-13 Facilities Manager for the Bureau
of Prisons at the Federal Medical Center (FMC) in Fort Worth, Texas. Initial
Appeal File (IAF), Tab 1 at 1, Tab 2 at 2, Tab 6 at 19. On October 19, 2021,
at 9:00 a.m., the appellant attended a meeting with three agency officials,
including the Regional Director, concerning the delay in the completion of a
Mental Health Unit at FMC and deficiencies in the appellant’s department at the
FMC. IAF, Tab 1 at 5, Tab 6 at 10, Tab 14 at 6. The appellant informed the
agency officials that the Mental Health Unit project experienced numerous
problems, including lead-based paint abatement, failure to solicit architectural
engineering firm services, partial approval and lack of updated blueprints, and
staff shortages. IAF, Tab 1 at 5. At that point, according to the appellant, the
Regional Director asked the other two agency officials to leave the room and told
the appellant that he could retire, be reassigned, or he would “take a team to Fort
Worth and find things to walk [the appellant] out.” IAF, Tab 14 at 6. After the
other two agency officials rejoined the meeting, the appellant requested to be
reassigned to a Facilities Manager position in Grand Prairie, Texas, and an
agency official responded that he could apply for the position and offered him
reassignment to a General Foreman position in Seagoville, Texas. IAF, Tab 6
at 10-11, Tab 14 at 6. According to the appellant, he had until 4:00 p.m. that
same day to submit his request for reassignment. IAF, Tab 14 at 6. Later that
same day, the appellant requested to be reassigned to the General Foreman
position in Seagoville, Texas, with “retention in order to match [his] current pay
as a GS-13 step 6.” IAF, Tab 6 at 24-25.
Two days later, on October 21, 2021, the appellant requested a lateral
transfer to a vacant GS-13 Facilities Manager position in Grand Prairie, Texas.
IAF, Tab 9 at 6. The Regional Director responded that he could apply for the
position and that his request for reassignment as General Foreman in Seagoville,2
Texas, had been approved. Id. at 7. The appellant was reassigned to the WS-14
position of General Foreman, effective November 21, 2021. IAF, Tab 6 at 19.
On November 20, 2021, the appellant filed a Board appeal challenging the
reduction in pay or grade and alleging that his reassignment to the new position
was involuntary. IAF, Tab 1 at 3, 5. In an order to show cause, the
administrative judge informed the appellant that the Board may not have
jurisdiction over his appeal, apprised him of his jurisdictional burden, and
ordered him to submit evidence and argument on the jurisdictional issue. IAF,
Tab 8. The appellant responded that, among other things, he was coerced into
accepting the reassignment and that he should have been reassigned to the vacant
Facilities Manager position in Grand Prairie, Texas, instead of the position he
was offered. IAF, Tab 9 at 2, Tab 14 at 2-4.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 16, Initial Decision (ID) at 1, 7. Specifically, the administrative judge found
that the appellant failed to allege facts that could show that his reduction in grade
and pay was involuntary because it was obtained through duress or coercion. ID
at 6. In so finding, she noted that the appellant attested only generally that he felt
intimidated and threatened and he believed he had to accept the reassignment due
to his financial obligations to his family; however, the appellant initiated his
reduction in grade when he accepted the reassignment that the agency offered. ID
at 6. She further noted that, while the appellant was concerned that he could have
been removed, the agency had not yet proposed any action; thus, the appellant
could have remained in the Facilities Manager position and challenged any action
he believed to be improper. ID at 6.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 3. He asserts that the administrative judge did not
consider his allegations in his affidavit that the agency forced him to accept a
reduction in pay and grade because the Regional Director threatened to remove3
him and he was faced with the need to make an immediate decision as to whether
to accept the reassignment or face removal; he argues that he is entitled to a
hearing because there are disputed issues that need to be resolved. Id. at 6, 9-11.
He further asserts that the agency did not have a legitimate basis to force him to
accept a reduction in pay and grade, as demonstrated by his recent positive
performance evaluations. Id. at 9. He claims that he was not responsible for the
difficulties that arose during the Mental Health Unit project, as it was beset by
issues beyond his control. Id. at 11-12. The agency has not filed a response.
ANALYSIS
Although the Board generally does not have jurisdiction over
reassignments, the Board has jurisdiction over agency actions that result in a
reduction in grade or pay. See McAlexander v. Department of Defense ,
105 M.S.P.R. 384, ¶ 7 (2007); see also 5 U.S.C. § 7512(3), (4). However, a
reduction in grade or pay that an employee accepts voluntarily is not within the
Board’s jurisdiction. See Harris v. Department of Veterans Affairs , 114 M.S.P.R.
239, ¶ 8 (2010). This appeal presents two issues, whether the appellant
experienced a reduction in grade or pay and whether the action was involuntary.
We will address the points in turn.
The appellant experienced a reduction in grade and pay.
As noted, the agency reassigned the appellant from a GS-13 position to a
WG-14 position. IAF, Tab 6 at 19. When an employee is reassigned from a
position under one pay system to a position with a lower rate of basic pay under a
different pay system and given retained pay but not retained grade, he has
suffered a reduction in pay. McAlexander, 105 M.S.P.R. 384, ¶ 7. Because the
reassignment was between two pay systems, we must determine whether the
appellant suffered a reduction in grade or pay.
Grade means “a level of classification under a position classification
system.” 5 U.S.C. § 7511(a)(3); 5 C.F.R. § 752.402. Pay means “the rate of4
basic pay fixed by law or administrative action for the position held by an
employee.” 5 U.S.C. § 7511(a)(4); 5 C.F.R. § 752.402. This means “the rate of
pay before any deductions and exclusive of additional pay of any kind,” 5 C.F.R.
§ 752.402, but the “rate of pay” includes locality pay, Zajac v. Department of
Agriculture, 112 M.S.P.R. 160, ¶ 5 (2009); 5 C.F.R. § 531.203.
Here, the agency reassigned the appellant from a GS-13 Facilities Manager
position, with a rate of basic pay of $55.52 per hour, equivalent to $115,873 per
year, to the WS-14 General Foreman position, with a rate of basic pay of $47.69
per hour, equivalent to $99,529 per year. IAF, Tab 6 at 19, 21-22. The
reassignment resulted in a reduction in pay across or between position
classification systems. See Malan v. Department of the Air Force , 55 M.S.P.R.
283, 290-91 (1992) (explaining that moving a wage grade employee to a general
schedule position having a lower rate of pay is a reduction in pay);
cf. Arrington v. Department of the Navy, 117 M.S.P.R. 301, ¶ 12 (2012) (finding
that an appealable reduction in grade did not occur when an employee was
converted from one pay system to another without a reduction in pay). Moreover,
the agency characterized the action as a change to a lower grade and a reduction
in pay. IAF, Tab 6 at 19, 21-22. Before the Board, the agency does not contest
that characterization. Thus, we find that the appellant suffered an appealable
reduction in grade and pay.2
The appellant nonfrivolously alleged that his reduction in grade and pay were
involuntary.
If an appellant makes a nonfrivolous allegation casting doubt on the
voluntariness of his acceptance of a reduction in grade or pay, he is entitled to a
2 The agency noted, during the October 19, 2021 meeting, that the appellant was offered
a retention incentive, i.e., the agency would match his then-current pay for one year.
IAF, Tab 6 at 11. It is not clear if the appellant received this incentive. However, a
retention incentive is considered a bonus and is not part of the basic pay of an employee
for any purpose. 5 U.S.C. § 5754(e)(3); 5 C.F.R. §§ 575.309(h), 575.311(g); see
Riojas v. U.S. Postal Service, 88 M.S.P.R. 230, ¶ 7 (2001) (stating that a bonus is not
part of basic pay).5
hearing at which he must prove jurisdiction by a preponderance of the evidence.
Harris, 114 M.S.P.R. 239, ¶ 9. To meet the nonfrivolous standard, an appellant
need only plead allegations of fact that, if proven, could show jurisdiction. Id.
Merely pro forma allegations are insufficient to meet the standard, however. Id.
In determining whether the appellant has made such a nonfrivolous allegation, the
administrative judge may consider the agency’s documentary submissions. Id.
However, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties, and the agency’s evidence may not be
dispositive. Id.; Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994).
An appellant may establish that his acceptance of a reduction in grade or
pay was involuntary, and thus within the Board’s jurisdiction, by presenting
sufficient evidence that it was the result of duress or coercion brought on by the
agency, or his reasonable reliance on misleading statements by the agency.
Harris, 114 M.S.P.R. 239, ¶ 8. The fact that an employee faces a choice between
two unpleasant options does not render his acceptance of the agency’s proposal
involuntary. Id. However, if the appellant can establish that he accepted a
reduction in pay or grade to avoid a threatened removal, and if he can further
show that the agency knew or should have known that the action could not be
substantiated, then the decision to accept the reduction in grade or pay may be
considered coerced and therefore involuntary. Id.
Here, the appellant submitted an affidavit in which he alleged that his
reassignment was involuntary based on coercion. IAF, Tab 14 at 6. He reiterates
on review that he was under significant duress and pressure given the limited time
he had to make a decision and his financial obligations to his family. PFR File,
Tab 3 at 12; IAF, Tab 14 at 16. He argues that he only accepted the reassignment
because the Regional Director made an “unsubstantiated threat” to remove him.
PFR File, Tab 3 at 12. As stated previously, according to the appellant, the6
Regional Director told him in the October 19, 2021 meeting that he would “take a
team to Fort Worth and find things to walk [the appellant] out” unless the
appellant retired or accepted a reassignment.3 PFR File, Tab 3 at 11; IAF, Tab 14
at 6. The appellant also disputes on review the agency’s allegations that he
experienced performance problems as a Facilities Manager and observes that he
had an above-average performance record. PFR File, Tab 3 at 9. The record
reflects that the appellant received performance ratings of excellent or
outstanding for the 2018, 2019, and 2020 rating periods. IAF, Tab 14 at 24, 33,
44. Notably, the appellant’s performance evaluations do not contain any
discussion of his deficiencies in managing and completion of the Mental Health
Unit project. IAF, Tab 14 at 24-52. Although the appellant acknowledges that
there were multiple problems that arose during the Mental Health Unit project, he
attributes them to issues beyond his control. PFR File, Tab 3 at 11-12; IAF,
Tab 1 at 5. He suggests that he was not provided adequate time to address those
problems because the events of this appeal took place before the project’s 3-year
deadline. PFR File, Tab 3 at 12; IAF, Tab 1 at 5. We find that the appellant’s
statements and supporting submissions are sufficient to constitute a nonfrivolous
allegation that the agency did not have legitimate reasons for the threatened
removal.
In finding that the appellant failed to nonfrivolously allege that his
reduction in grade or pay was involuntary, the administrative judge correctly
noted that the agency had not yet proposed an adverse action and he had the
option to remain in the Facilities Manager position and to challenge any agency
action he believed to be improper. ID at 6. We clarify, however, that the
3 The appellant observed that the Regional Human Resource (HR) Administrator and the
Acting Deputy Regional Director, who were also present during the meeting, were
asked to leave the room before the Regional Director made this statement. IAF, Tab 14
at 6. On this point, the Regional HR Administrator’s contemporaneous handwritten
notes documenting the October 19, 2021 meeting are consistent with the appellant’s
allegations. She noted that the appellant had a one-on-one discussion with the Regional
Director in which the appellant had been offered “some outs.” IAF, Tab 6 at 15. 7
appellant need only allege that he accepted a reduction in grade or pay to avoid a
threatened removal—an action need not have been proposed.4 Harris,
114 M.S.P.R. 239, ¶ 8.
As noted above, the appellant alleged that the Regional Director informed
him during a meeting that, if he did not accept a reassignment, he must retire or
face removal and imposed a short timeframe for making a decision, which caused
him to accept a reassignment.5 IAF, Tab 14 at 6. The Board has found that such
circumstances are sufficient to show that an employee’s decision was involuntary.
See, e.g., Jones v. Department of the Treasury , 107 M.S.P.R. 466, ¶¶ 3, 17 (2007)
(finding that the appellant made a nonfrivolous allegation that his retirement was
involuntary when he alleged that he retired because of a threatened removal);
Huyler v. Department of the Army , 101 M.S.P.R. 570, ¶¶ 2, 7 (2006) (finding that
the appellant made a nonfrivolous allegation that his reduction in grade was
involuntary when he alleged that he accepted the reduction in grade because of a
threatened removal).
Accordingly, we find that the appellant has alleged facts which, if proven,
could establish that he accepted a reduction in grade or pay under the threat of a
removal action that the agency knew or should have known could not be
substantiated. Because the appellant has made a nonfrivolous allegation that his
reduction in grade or pay was involuntary, he is entitled to a hearing on the issue
of jurisdiction. Harris, 114 M.S.P.R. 239, ¶ 11; Goldberg, 97 M.S.P.R. 441,
¶¶ 9-10.
4 The Regional Director’s statement that he would “find things to walk [the appellant]
out” could reasonably be interpreted as suggesting that the Regional Director would
base an action on minor or trivial issues and that he would take the action without
providing the appellant advanced notice and an opportunity to respond to a proposed
removal.
5 The Regional HR Administrator did not reference a possible removal as one of the
options presented to the appellant. However, it appears that she was not present in the
room at the time the Regional Director made the alleged threat. PFR File, Tab 3 at 11;
IAF, Tab 14 at 6. In the absence of a hearing, the administrative judge may not accept
the agency’s assertions as dispositive. See Ferdon, 60 M.S.P.R. at 329.8
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.9 | Whelpdale_Robert_V_DA-0752-22-0063-I-1__Remand_Order.pdf | 2024-04-04 | ROBERT V. WHELPDALE v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-0752-22-0063-I-1, April 4, 2024 | DA-0752-22-0063-I-1 | NP |
1,879 | https://www.mspb.gov/decisions/nonprecedential/Luna_JoseDA-0731-23-0067-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE LUNA, JR,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0731-23-0067-I-1
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose Luna, Jr. , El Paso, Texas, pro se.
Mark W. Hannig , Esquire, El Paso, 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 his suitability 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
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 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 | Luna_JoseDA-0731-23-0067-I-1__Final_Order.pdf | 2024-04-04 | null | DA-0731-23-0067-I-1 | NP |
1,880 | https://www.mspb.gov/decisions/nonprecedential/Perry_LawrenceDC-0752-22-0209-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWRENCE PERRY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-22-0209-I-1
DATE: April 4, 2024
THIS ORDER IS NONPRECEDENTIAL1
L
awrence Perry , Altenglan, Germany, pro se.
David H. Roberts , Esquire, APO, Europe, 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 chapter 75 removal 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 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).
The appellant was a GS-9 Supervisory Postal Operations Specialist,
employed at the agency’s Landstuhl Regional Medical Center Postal Facility in
Kaiserslautern, Germany. Initial Appeal File (IAF), Tab 1 at 1, 7. On January
28, 2022, the agency issued a decision to remove him, effective February 25,
2022. Id. at 3, 7. Prior to the effective date of his removal, on February 3, 2022,
the appellant, who is pro se, filed this appeal challenging the merits of the
removal.2 Id. at 1, 5. On his appeal form, he checked the box for “Involuntary
Resignation” to describe the agency action that he was appealing. Id. at 3. He
attached a copy of the January 28, 2022 removal decision to his appeal. Id. at 7.
The administrative judge issued an order advising the parties of the
appellant’s burden to prove jurisdiction over an alleged involuntary resignation
appeal. IAF, Tab 3. He ordered the appellant to provide evidence and argument
regarding the jurisdictional issue. IAF, Tab 3. After neither party responded to
the order, the administrative judge issued an initial decision finding that the
appellant failed to establish Board jurisdiction over his alleged involuntary
resignation. IAF, Tab 6, Initial Decision at 1-2, 6.
The appellant has filed a petition for review in which he states that he “was
removed from [his] job for Conduct Unbecoming a Federal Employee.” Petition
for Review (PFR) File, Tab 1 at 5. He disputes the misconduct for which he was
removed, argues his removal was the result of agency error, and raises various
mitigating factors. Id. at 9-13. The agency has not responded to the petition for
review.
Because it appeared that the appellant did not resign but was removed from
his position, the Office of the Clerk of the Board issued an order to the parties to
indicate whether he resigned from the agency. PFR File, Tab 3. Both parties
responded and informed the Board that the appellant was removed. PFR File,
Tab 4 at 4, Tab 5 at 4.
2 The appellant submitted a designation of representative form below, but both in that
submission and on review, he states that his representative is deceased. IAF, Tab 4
at 3-4, Petition for Review File, Tab 1 at 6, Tab 4 at 4.2
The Board has chapter 75 jurisdiction over the removal of an individual
who meets the definition of “employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C.
§§ 7512(1), 7513(d), 7701(a); Moncada v. Executive Office of the President,
Office of Administration , 2022 MSPB 25, ¶¶ 13-14, 24. As relevant here, the
definition of “employee” includes a nonprobationary appointee in the competitive
or excepted service who has completed, depending on the circumstances, 1 to 2
years of current continuous service. 5 U.S.C. § 7511(a)(1); e.g., Moncada, 2022
MSPB 25, ¶ 14 (finding that appellant met the definition of an employee under
5 U.S.C. § 7511(a)(1)(A) because at the time of his removal he occupied a
position in the competitive service, was not serving a probationary or trial period,
and had completed 1 year of current continuous service under other than a
temporary appointment limited to 1 year or less). The appellant indicated on his
appeal form that he was not serving a probationary or trial period, and that he had
18 years and 7 months of Government service. IAF, Tab 1 at 1. The agency has
not contested this assertion, and further concedes on review that the appellant’s
removal was “under the provisions of 5 U.S.C. Chapter 75.” PFR File, Tab 5.
Accordingly, we find that the Board has jurisdiction over this appeal.
The agency argues that the appeal should nonetheless be dismissed because
the appellant failed to respond to the administrative judge’s jurisdictional order.
PFR File, Tab 5 at 5. We are not persuaded. “The Board has the authority,
indeed the obligation, to determine its own jurisdiction over a particular appeal.”
Parrish v. Merit Systems Protection Board , 485 F.3d 1359, 1362 (Fed. Cir. 2007)
(citation omitted). The Board may raise the issue of jurisdiction at any time
during a Board proceeding, as we do here.3 Becker v. Department of Veterans
Affairs, 115 M.S.P.R. 409, ¶ 4 (2010). To the extent that the agency is suggesting
3 Although not raised by the parties, we acknowledge that the appellant filed his appeal
before the agency effected his removal. IAF, Tab 1 at 1, 7. However, it is the
Board’s practice to adjudicate an appeal that was premature when it was filed but
becomes ripe while pending with the Board. Becker v. Department of Veterans Affairs ,
107 M.S.P.R. 327, ¶ 7 (2007). Therefore, we conclude the early filing of this appeal
does not prevent its adjudication at this time.3
that the appeal should be dismissed as a sanction, we disagree. A party’s failure
to comply with a single order does not justify the sanction of dismissal. Horton
v. Department of the Interior , 104 M.S.P.R. 115, ¶ 10 (2006). This is particularly
true in this case because the administrative judge failed to provide this pro se
appellant with notice of how to establish jurisdiction over his removal.
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). Accordingly, this appeal
must be remanded to the Washington Regional Office for adjudication of the
appellant’s removal on the merits.4
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.
4 In light of our jurisdictional finding here, we find it unnecessary to review the
documents the appellant has submitted for the first time on review. PFR File, Tab 1
at 15-95 On remand, the administrative judge should provide the parties with an
opportunity to conduct discovery and submit relevant documents into the record, and
should hold the appellant’s requested hearing. IAF, Tab 1 at 2; 5 C.F.R. §§ 1201.41(b)
(setting forth the authority of the administrative judge to rule on discovery, ensure the
record is developed, and convene a hearing, among other matters), 1201.73 (setting out
the Board’s discovery procedures).4 | Perry_LawrenceDC-0752-22-0209-I-1__Remand_Order.pdf | 2024-04-04 | LAWRENCE PERRY v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-22-0209-I-1, April 4, 2024 | DC-0752-22-0209-I-1 | NP |
1,881 | https://www.mspb.gov/decisions/nonprecedential/Stevens_David_A_AT-0842-21-0545-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID A. STEVENS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0842-21-0545-I-1
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Stevens , Munford, Tennessee, pro se.
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 final decision of the Office of Personnel Management (OPM)
finding that the appellant’s nonappropriated fund service was not creditable
towards his Federal Employees’ Retirement System (FERS) annuity. For 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).
reasons discussed below, we DENY the appellant’s petition for review, VACATE
the initial decision, and DISMISS the appeal for lack of jurisdiction.
BACKGROUND
On January 5, 1987, the appellant started a Nonappropriated Fund
Instrumentality (NAFI) position with the Department of the Navy (Navy) and
enrolled in the Navy’s NAFI retirement program.2 Initial Appeal File (IAF),
Tab 1 at 4, Tab 18 at 73. On or about September 29, 1993, the appellant’s NAFI
position was converted into a General Schedule (GS) position and the appellant
was automatically enrolled in FERS. IAF, Tab 1 at 4, Tab 18 at 73. Thereafter,
on or about August 15, 1994, the appellant accepted a NAFI position
and reenrolled in the Navy’s NAFI retirement program. IAF, Tab 1 at 4,
Tab 18 at 73. Later, on or about March 1, 1998, the appellant’s NAFI position
was converted to a GS position, and he was reenrolled in FERS. IAF, Tab 1 at 4,
Tab 18 at 73.
On March 6, 1998, the appellant executed form NAF-CS-1 entitled
“ELECTION TO RETAIN NAFI RETIRMENT COVERAGE AS A RESULT OF
MOVE FROM A NONAPPROPRIATED FUND POSITION TO A CIVIL
SERVICE POSITION AFTER AUGUST 9, 1996.” IAF, Tab 18 at 31
(punctuation as in the original). The form provided the appellant with the
irrevocable option to either (1) retain NAFI retirement coverage regardless of
future moves between NAFI and civil service positions or (2) enter the FERS
retirement plan “without receiving any service credit in FERS . . . for time spent
under the NAFI plan.” Id. The appellant elected option 2. Id. He subsequently
2 A nonappropriated fund instrumentality is generally one to which the Government has
provided funds to initiate operations and the Government loan is repaid out of profits
earned by the activity. Thus, the activity is created by the Government, with
Government funds, for Government personnel. Military exchanges and similar entities
are the major types of NAFIs. Suarez v. Office of Personnel Management , 58 M.S.P.R.
639, 641 n.1 (1993 ).2
applied for a refund of his NAFI retirement contributions and received a lump
sum check by letter dated April 2, 1998. Id. at 28, 30.
Effective March 31, 2019, the appellant retired and applied for an
immediate FERS retirement annuity. Id. at 4, 99-108. As part of his application,
the Navy completed a form entitled Certified Summary of Federal Service
showing the appellant’s service history, which included a written note that the
appellant’s NAFI service was not creditable for his FERS retirement annuity
because the appellant elected option 2 on his signed NAF-CS-1 form. Id. at 104.
On May 18, 2019, the appellant sent a letter to OPM requesting to make a
one-time election to combine his NAFI service and FERS service towards a single
retirement benefit under section 1043 of the National Defense Authorization Act
for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 434-39 (codified at
5 U.S.C. § 8347) (PL 104-106) and OPM Benefits Administration Letter (BAL)
96-108, which provided guidance on PL 104-106. IAF, Tab 5 at 36. On
December 16, 2019, OPM issued an initial decision denying the appellant’s
request to combine his NAFI service and FERS service because he had not signed
an election form to do so before August 11, 1997, the deadline under PL 104-106.
Id. at 43-44.
The appellant requested reconsideration of that decision and, on April 17,
2020, OPM subsequently issued another initial decision. Id. at 47, 61-62. OPM
informed the appellant that, under 5 C.F.R. part 847, subpart E, “[w]hen an
employee elects to retroactively return to . . . FERS coverage, or to have NAFI
service credited towards FERS, employee contributions and government
contributions made to the NAFI retirement plan transfer to the Civil Service
Retirement and Disability Fund.” Id. at 61. OPM noted that it had not received
any transfers of contributions from the appellant’s NAFI retirement plan that it
could use to apply to his annuity to make the NAFI service creditable, and it
denied his request to credit his NAFI service for that reason and his failure to
sign the election form by the required date. Id. at 61-62. The appellant again3
requested reconsideration and, on December 18, 2020, OPM sent him a letter
informing him that, under 5 C.F.R. § 847.304, a part of the regulations
implementing PL 104-106, a NAFI agency may waive the August 11, 1997
deadline to elect NAFI service to be credited under FERS. Id. at 65-66, 77. OPM
instructed the appellant to contact his NAFI agency to inquire about whether they
would approve a waiver. Id. at 77. The appellant contacted the agency per
OPM’s instructions, but his former employer ultimately informed him by email
that it determined through discussions with OPM that it was not responsible for
providing a waiver and it advised the appellant that his case had been submitted
to OPM’s reconsideration branch. Id. at 79, 83.
On July 14, 2021, OPM issued a final decision affirming the initial
decision, finding that the appellant’s NAFI service was not creditable towards his
retirement under FERS. Id. at 88. The final decision explained that the
appellant’s NAFI service from January 5, 1987, until September 28, 1993,
and from August 15, 1994, until February 28, 1998, did not meet the requirements
set out at 5 C.F.R. § 847.202(d) and 5 C.F.R. § 831.305. Id. at 88-89. It also
explained that the appellant was not eligible to combine his FERS and NAFI
service towards one retirement benefit under PL 104-106 because OPM’s
BAL 96-108, its guidance on implementing PL 104-106, targeted employees who
were in FERS-covered positions at that time and the appellant was then a NAFI
employee, and because the appellant’s conversion to a FERS position in 1998 was
not a qualifying move under the regulations. Id. at 89. The final decision also
noted that the appellant was ineligible because, in 1998, he elected not to remain
in the NAFI retirement program, and because he subsequently received a refund
of his NAFI retirement contributions. Id.
The appellant filed a timely Board appeal, contending that OPM’s final
decision was incorrect for several reasons, including that the appellant’s first
conversion to a FERS position on September 29, 1993, was a qualifying move and
that current NAFI employees at that time were also potentially eligible to4
combine their service under BAL 96-108. IAF, Tab 1 at 6. In an initial decision
dated January 28, 2022, the administrative judge affirmed OPM’s final decision
based on the written record because the appellant withdrew his request for a
hearing. IAF, Tab 23, Initial Decision (ID) at 1. The administrative judge found
that, under 5 C.F.R. § 847.202(f), in order for the appellant’s NAFI service to
qualify for FERS service credit, his move from a NAFI position to a FERS
position had to have occurred between January 1, 1987, and August 9, 1996. ID
at 4. The administrative judge concluded that, because it was undisputed that
appellant’s move between these positions did not occur until March 1, 1998, OPM
correctly determined that the appellant’s move was not a qualifying move. Id.
The administrative judge also concluded that, because the appellant failed to
establish entitlement to FERS service credit based on his NAFI service, it was
unnecessary to address the fact that the appellant requested and received a refund
of his NAFI retirement contributions. ID at 5.
The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. He argues that the administrative judge incorrectly decided
several important facts, failed to apply PL 104-106 correctly, and that the initial
decision was wrong because OPM failed to submit required documents by the
established deadline and thus those documents should be inadmissible. Id. at 4-5.
OPM has filed a response. PFR File, Tab 4.
ANALYSIS
Although not raised by either party on appeal or on review, we find that we
must vacate the initial decision because the Board presently lacks jurisdiction
over this matter. See Waldrop v. U.S. Postal Service , 72 M.S.P.R. 12, 15 (1996)
(stating that “[a]s a limited-jurisdiction tribunal, the Board must satisfy itself that
it has authority to adjudicate the matter before it and may raise the matter of its
own jurisdiction sua sponte at any time); see also Rodriguez v. Department of
Homeland Security , 112 M.S.P.R. 446, ¶ 10 (2009).5
Section 1043 of PL 104-106 created an opportunity for certain FERS and
NAFI employees who had a qualifying move after December 31, 1965, and before
August 10, 1996, to retroactively elect to combine their FERS and NAFI service
towards a single retirement benefit. IAF, Tab 5 at 34; see 5 C.F.R. part 847,
subpart D (elections of coverage under the retroactive provisions). Individuals
were required to make such a retroactive election by August 11, 1997. 5 C.F.R.
§ 847.304(a). Under OPM’s regulations implementing PL 104-106, each agency
was responsible for notifying its employees of the opportunity to make the
election and for counseling employees with respect to the election. 5 C.F.R.
§ 847.105(a). The regulations also assigned each agency the responsibility of
determining whether an employee qualifies to make an election under subparts B
(elections to continue retirement coverage after a qualifying move) and D.
5 C.F.R. § 847.105; see Regdon v. Department of the Army , 117 M.S.P.R. 348,
¶ 6 (2012).3
Additionally, the regulations also give individuals the right to request the
Board to review a final agency determination of their eligibility to make
an election. 5 C.F.R. § 847.107(a). An appeal to the Board is the exclusive
remedy for review of agency decisions concerning eligibility to make the
retroactive election under 5 C.F.R. part 847, subparts B and D. 5 C.F.R.
§ 847.107(b); see Markanich v. Office of Personnel Management , 104 M.S.P.R.
323, ¶ 11 (2006). Further, when an agency determines that an employee is not
eligible to make an election under 5 C.F.R. part 847, subparts B or D, it must
issue a final decision to the employee in writing that sets forth the agency’s
findings and conclusions and contains notice of the right to request review by the
Board. 5 C.F.R. § 847.106; Markanich, 104 M.S.P.R. 323, ¶ 11.
In this case, the appellant should have raised the issue of whether he is
eligible to retroactively elect to have his prior NAFI service treated as creditable
3 The time limits for making an election under subparts B and D may be waived under
certain circumstances, including a lack of notice or counseling. 5 C.F.R. §§ 847.206(b),
847.302, 847.304(b). 6
service for purposes of his FERS annuity with his former employer instead of
OPM. Under the regulations set forth above, the appellant’s former employing
agency, the Navy, must issue a final written decision before he can request review
by the Board. See 5 C.F.R. §§ 847.106, .107(a); Markanich, 104 M.S.P.R. 323,
¶¶ 6, 12 (holding that the administrative judge correctly concluded that the Board
lacked jurisdiction to adjudicate whether the appellant was entitled to make a
retroactive election under section 1043(c) of PL 104-106 because the appellant’s
former employer had not issued a final written decision on the matter); see also
Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985)
(stating that the Board’s jurisdiction is limited to those matters over which it has
been given jurisdiction by law, rule, or regulation).
Here, the Navy has not issued a final written decision on whether the
appellant is eligible to make a retroactive election. Although the agency
completed the appellant’s Certified Summary of Federal Service form with a note
that his NAFI service was not creditable as a part of his application for a FERS
retirement annuity, that form does not constitute a final written decision under the
regulation noted above. IAF, Tab 18 at 104; see 5 C.F.R. § 847.106(b). Further,
the agency’s brief email to the appellant stating that it “was not responsible for
providing a waiver with regard to [his] PL 104-106 request” does not constitute a
final written decision either, as it does not detail any agency findings or
conclusions as to the appellant’s eligibility to combine his FERS and NAFI
service toward one retirement benefit.4 IAF, Tab 5 at 83; see 5 C.F.R.
4 Although the record contains separate email exchanges between the agency and OPM
representatives about the waiver request wherein the agency’s representative analyzes
the appellant’s eligibility to combine his FERS and NAFI service toward one retirement
benefit, those findings and conclusions were not set forth in a communication to the
appellant. IAF, Tab 18 at 32-36. Further, those communications do not analyze the
appellant’s repeated argument that BAL 96-108 stated that certain current NAFI
employees, not just FERS employees, could also elect to combine their FERS and NAFI
service toward one retirement benefit or his argument that his first conversion to a
FERS position on September 29, 1993 was a qualifying move — and whether he should
have been given an election opportunity then, and the implications if he was not. IAF,
Tab 1 at 6, Tab 5 at 33-36.7
§ 847.106(b); cf. Regdon, 117 M.S.P.R. 348, ¶ 6 (finding that an email constituted
a final agency decision under 5 C.F.R. part 847 when the agency clearly denied
the appellant the opportunity to elect to transfer his FERS retirement
contributions to his NAFI retirement plan and gave him one choice to combine
retirement plans that he had to elect immediately). Accordingly, when the agency
issues a final written decision setting forth its findings and conclusions
containing a notice of his appeal rights, then the appellant may appeal that
decision to the Board. See 5 C.F.R. § 847.107(a); Markanich, 104 M.S.P.R. 323,
¶ 12.5
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
5 An agency final decision on the appellant’s eligibility to combine his service under
PL 104-106 seems especially prudent in this case as the appellant has thus far failed to
receive a clear and consistent answer on his eligibility that addresses all his arguments
and concerns, the most pertinent of which are mentioned above.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
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 obtain9
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 10
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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Stevens_David_A_AT-0842-21-0545-I-1__Final_Order.pdf | 2024-04-04 | DAVID A. STEVENS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0842-21-0545-I-1, April 4, 2024 | AT-0842-21-0545-I-1 | NP |
1,882 | https://www.mspb.gov/decisions/nonprecedential/Felmlee_HollyDC-1221-22-0276-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOLLY FELMLEE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-22-0276-W-1
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Holly Felmlee , APO, APO/FPO Europe, pro se.
Jason Myers , APO, APO/FPO Europe, 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 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
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
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, we VACATE the initial
decision, but still DISMISS the appeal for lack of jurisdiction, although for
different reasons than those relied upon by the administrative judge.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency terminated the appellant during her probationary period on
December 10, 2021, citing several performance-related incidents as the basis for
its action. Initial Appeal File (IAF), Tab 10 at 25-26, 55. The appellant then
filed a whistleblower reprisal complaint with the Office of Special Counsel
(OSC), in which she alleged that the agency retaliated against her by, among
other acts, terminating her for requesting a religious accommodation seeking
exemption from COVID-19 vaccination and testing requirements, for “refusing to
be discriminated against” based on her religion, and for filing an Equal
Employment Opportunity (EEO) complaint and a report to Congress regarding her
religious discrimination allegations.2 IAF, Tab 1 at 7-8. OSC subsequently
2 Although the appellant also alleged in her OSC complaint that the agency improperly
accessed her medical records by emailing her asking for COVID-19 vaccine
documentation, there is no indication that the appellant alleged that these actions were
in retaliation for her protected disclosures or activity, or that this claim in her OSC
complaint itself constituted a protected disclosure or activity which led to retaliation by
the agency, IAF, Tab 1 at 8, 10-11, and this claim is thus outside the scope of this IRA
appeal.
3
issued the appellant a close-out letter, id. at 7, and she filed an IRA appeal with
the Board,3 id. at 1-12.
In response to the administrative judge’s notice to the appellant of her
burden to establish jurisdiction over her appeal, including of her requirement to
show that she exhausted her administrative remedies before OSC, IAF, Tabs 5, 8,
the appellant alleged that the agency terminated her because of two memoranda
she sent to her leadership and EEO complaints she had filed. IAF, Tab 9 at 6-7.
In one of the memoranda, dated December 8, 2021, the appellant stated, among
other things, that the agency’s COVID-19 testing was being performed in
unsterile conditions by untrained persons and that the testing swabs were
sterilized with a certain toxic chemical. Id. at 11. In a second undated
memorandum, she listed other chemicals contained in the COVID-19 tests and
their potential health risks and stated that only employees with pending religious
exemptions were being targeted for mandatory tests. Id. at 12-13. In both
memoranda the appellant invoked standards from the Occupational Health and
Safety Administration (OSHA). Id. at 11-13.
In the initial decision, the administrative judge dismissed the appeal
without holding the appellant’s requested hearing, finding that the appellant
failed to raise sufficient nonfrivolous allegations establishing Board jurisdiction.
IAF, Tab 11, Initial Decision (ID). She first found that the appellant exhausted
her administrative remedies with OSC for the claims set forth in OSC’s close-out
letter and that the appellant therefore exhausted her claim that the agency
3 The appellant filed a separate appeal in which she alleged that her probationary
termination was due, among other things, to her religious beliefs and politically
motivated stance towards COVID-19 vaccination and testing. Felmlee v. Department of
Defense, MSPB Docket No. DC-315H-22-0155-I-1, Initial Appeal File, Tab 1 at 7,
Tab 6 at 4, Tab 9 at 17. The administrative judge dismissed the appeal, finding that the
appellant failed to make a nonfrivolous allegation of Board jurisdiction, including over
any claim that her termination was based on her affiliation with a political party or
candidate. Felmlee v. Department of Defense , MSPB Docket No. DC -315H-22-0155-
I-1, Initial Decision (Feb. 14, 2022). The initial decision became the final decision of
the Board when neither party filed a petition for review. 5 C.F.R. § 1201.113.
4
retaliated against her because of her memoranda regarding the alleged health
hazards presented by the agency’s COVID-19 tests. ID at 4. The administrative
judge then found that the appellant’s statements in her memoranda were
insufficient to establish a nonfrivolous allegation that she made protected
disclosures or engaged in protected activity and that there was no evidence that
the appellant’s memoranda were a contributing factor in her termination because
there was no evidence she forwarded the memoranda to the deciding official.
ID at 4-6. Finally, the administrative judge found that the appellant’s claims of
religious discrimination did not serve as an independent source of Board
jurisdiction in the absence of an otherwise appealable action. ID at 6.
The appellant filed a petition for review, in which she repeats her claim
that she was terminated because of her disclosures of “illegal” COVID-19 testing
practices and OSHA violations and requests the ability to conduct discovery.
Petition for Review (PFR) File, Tab 1. The agency filed a response. PFR File,
Tab 3.
We find that the appellant failed to establish jurisdiction over her appeal,
but for reasons different than those articulated by the administrative judge. The
Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
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). Edwards v. Department of Labor , 2022 MSPB 9, ¶ 8; see 5 U.S.C.
§§ 1214(a)(3), 1221(e)(1). The substantive requirements of exhaustion are met
when an appellant has provided OSC with sufficient basis to pursue an
investigation. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 7;
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
5
previously raised with OSC. Chambers, 2022 MSPB 8, ¶ 10. An appellant may
demonstrate exhaustion through her initial OSC complaint or correspondence
with OSC, other sufficiently reliable evidence such as an affidavit or declaration
attesting that she raised with OSC the substance of the facts in her Board appeal,
or unrebutted statements to that effect on a certified initial appeal form . Id., ¶ 11
& n.7.
Because the appellant did not file her OSC complaint or an affidavit or
other statement as to the matters she raised with OSC, we are left to discern the
contents of her OSC complaint from the available relevant documents—OSC’s
close-out letter and letter explaining its preliminary findings. IAF, Tab 1 at 7-11.
These letters show that the appellant alleged in her OSC complaint that her
protected disclosures or activity only consisted of her (1) request for a religious
accommodation seeking exemption from COVID-19 vaccination and testing
requirements; (2) “refusing to be discriminated against” based on her religion;
and (3) filing an EEO complaint and report to Congress regarding her alleged
religious discrimination. Id. Nowhere in OSC’s correspondence does there
appear any reference to an allegation, raised in the appellant’s attempt to
establish jurisdiction during the appeal, that the appellant was retaliated against
because of her disclosure of safety hazards posed by the agency’s COVID-19
tests or to any fact arguably related to the safety of the tests. Id. There is also no
assertion or indication in the record that the appellant sent the memoranda
regarding her safety concerns to OSC as part of her complaint or at any time
thereafter. Accordingly, the appellant failed to establish exhaustion over any
claim that the agency retaliated against her because of her expression of concerns
related to the safety of the COVID -19 tests. Thus, having failed to establish
exhaustion, the Board lacks jurisdiction over these claims.
¶1We also find that the Board lacks jurisdiction over the claims the appellant
actually did make in her OSC complaint. In Edwards, 2022 MSPB 9, ¶¶ 2, 22, the
Board reaffirmed the longstanding principle that Title VII-related claims made to
6
a supervisor or an EEO office, such as those the appellant asserted in her OSC
complaint, are excluded from protection under the whistleblower protection
statutes. As part of its analysis in Edwards, the Board, among other things,
discussed longstanding precedent stating that reprisal for filing an EEO complaint
is a matter relating solely to discrimination and is not protected by 5 U.S.C.
§ 2302(b)(8). Id., ¶ 10. The Board further found that EEO complaints related to
matters covered by Title VII were also not within the purview of 5 U.S.C.
§ 2302(b)(9)(A)(i) and that the Board thus lacked jurisdiction to consider such
allegations in the context of an IRA appeal. Id., ¶ 25. We find these principles to
be controlling and that the Board therefore lacks jurisdiction over this appeal.4
The appellant’s disclosure to Congress of alleged religious discrimination
is similarly not protected under 5 U.S.C. § 2302(b)(8). See Redschlag v.
Department of the Army , 89 M.S.P.R. 589, ¶ 84 (2001) (holding that the Board
would not consider as protected whistleblowing activity a disclosure of
discrimination made in a letter to a Member of Congress). Section 2302(b)(8)(C)
does prohibit taking a personnel action because of “any disclosure to Congress
(including any committee of Congress) by any employee of an agency . . . of
information described in subparagraph (B) . . . .” Section 2302(b)(8)(B),
however, covers disclosures of information an employee reasonably believes
evidences “any violation (other than a violation of this section) of any law, rule,
or regulation . . . .” Because an allegation of religious discrimination constitutes
an allegation of a violation of 5 U.S.C. § 2302(b)(1)(A), see Zidele v. Defense
Logistics Agency , 6 M.S.P.R. 455, 457 (1981), such a disclosure is excluded
under 5 U.S.C. § 2302(b)(8)(C) as a “violation of this section.”
4 The appellant asks on review for the ability to conduct discovery in order to interview
agency personnel. PFR File, Tab 1 at 4-5. However, because we determine that the
matters that the appellant exhausted in her OSC complaint are outside the Board’s
jurisdiction as a matter of law, there is no basis for discovery.
7
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.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
9
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
10
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.
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. | Felmlee_HollyDC-1221-22-0276-W-1__Final_Order.pdf | 2024-04-04 | HOLLY FELMLEE v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-22-0276-W-1, April 4, 2024 | DC-1221-22-0276-W-1 | NP |
1,883 | https://www.mspb.gov/decisions/nonprecedential/Hawkins_RickeyAT-0752-22-0392-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICKEY HAWKINS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-22-0392-I-1
DATE: April 4, 2024
THIS ORDER IS NONPRECEDENTIAL*
Rickey Hawkins , Madison, Alabama, pro se.
Erika McPherson , Redstone Arsenal, Alabama, 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 concerning his removal for medical inability as untimely
filed by 9 days without good cause shown. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
** A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant was removed from Federal service for medical inability to
perform, effective April 9, 2022. Initial Appeal File (IAF), Tab 1 at 8-10. On
May 18, 2022, he filed an initial appeal by facsimile (fax). Id. at 1. The agency
requested that the administrative judge dismiss the appeal as untimely because it
was not filed within 30 days of the effective date of the removal, i.e., no later
than May 9, 2022. IAF, Tab 7 at 7. The administrative judge issued a timeliness
order, which notified the appellant that his appeal appeared to be untimely filed
by 9 days. IAF, Tab 8 at 2. In the order, the administrative judge instructed the
appellant how to establish good cause for an untimely filing and instructed him to
file evidence and argument in support thereof. Id. at 2-4. The appellant filed two
responses to the timeliness order. IAF, Tabs 9-10. In relevant part, the appellant
asserted, without support, that he filed his “application” with the Board on May 5,
2022. IAF, Tab 10 at 2. He asserted that he attempted to send documents to the
regional office, which he later learned were “cut off in the fax.” IAF, Tab 9 at 3.
The appellant also generally referenced his medical conditions; however, he did
not specifically explain how his medical conditions affected his ability to timely
file an appeal. IAF, Tab 10 at 2. Without holding a hearing, the administrative
judge issued an initial decision dismissing the appeal as untimely filed by 9 days
without good cause shown. IAF, Tab 13, Initial Decision at 1-6.
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. On review, the appellant asserts that his initial appeal was timely
filed on May 6, 2022. PFR File, Tab 1 at 2, 4-6. He has attached a “fax delivery
report” showing a fax transmission to the regional office on that date. Id. at 2, 4.
The “status” column on the fax delivery report indicates that the transmission was2
delivered. Id. He has also filed documents related to his medical condition. Id.
at 7-9.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, a Board appeal must be filed no later than 30 days after the
effective date of the action being appealed, or 30 days after the date of receipt of
the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). Fax
transmissions are considered filed on the date of the facsimile. 5 C.F.R.
§ 1201.4(l). The date of the appellant’s initial appeal is May 18, 2022, 9 days
after the filing deadline. IAF, Tab 1 at 1.
The Board will dismiss an appeal that is untimely filed unless the appellant
shows good cause for the delay. 5 C.F.R. §§ 1201.22(c), 1201.56(b)(2)(i)(B). To
establish good cause for the untimely filing of an appeal, a party must show that
he exercised due diligence or ordinary prudence under the particular
circumstances of the case. 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 his excuse and
his showing of due diligence, whether he is proceeding pro se, and whether he has
presented evidence of the existence of circumstances beyond his control that
affected his ability to comply with the time limits or of unavoidable casualty or
misfortune which similarly shows a causal relationship to his inability to timely
file his petition. See 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).
Under the circumstances of this case, we find that the appellant’s lateness
should be excused. The appellant, who is proceeding pro se, has asserted that he
attempted to file his initial appeal by fax on May 6, 2022, 3 days before the filing
deadline expired, which seems to be corroborated by the fax transmission sheet
bearing that date. PFR File, Tab 1 at 2, 4. The appellant has asserted that he
reasonably believed that the regional office received the fax because the3
transmission report noted a successful delivery. Id. He asserts that he did not
learn until some later time that his fax transmissions to the regional office were
“cut off.” IAF, Tab 9 at 3. Under similar circumstances, the Board has found
that good cause exists when an appellant reasonably believed that he filed his
appeal in a timely way. See Salazar v. Department of the Army , 115 M.S.P.R.
296, ¶¶ 6-8 (2010) (excusing a filing delay when the appellant alleged that he
attempted to electronically file his petition for review on time and the e -appeal
system showed that the appellant had, in fact, accessed the system prior to the
date that his petition was due; it was possible to exit the system without receiving
a clear warning that he had not yet filed his pleading; and once he became aware
that his petition had not been filed, the appellant submitted a petition for review
that included an explanation of his untimeliness); Lamb v. Office of Personnel
Management, 110 M.S.P.R. 415, ¶ 9 (2009) (excusing the untimely filing of an
initial appeal when the appellant reasonably believed he filed timely by
completing all questions on the online appeal form and exited the website without
receiving a clear warning that his appeal was not filed). The agency has not
shown that it would be prejudiced by the filing delay.
For these reasons, we find good cause to waive the filing deadline and we
vacate the initial decision dismissing the appeal as untimely filed without good
cause. We note that the appellant’s filings indicate that he may not be
challenging the merits of his removal for medical inability and, instead, he may
be seeking to address his alleged entitlement to severance pay. IAF, Tab 1 at 6;
PFR File, Tab 7 at 3. An agency’s denial of severance pay is not within the
Board’s jurisdiction. See Ward v. U.S. Consumer Product Safety Commission ,
8 M.S.P.R. 603, 603-04 (1981). On remand, the administrative judge shall clarify
the scope of the issues and, if appropriate, he shall issue a jurisdictional order
explaining the methods by which the appellant may establish jurisdiction over the
issues in this appeal. 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.5 | Hawkins_RickeyAT-0752-22-0392-I-1__Remand_Order.pdf | 2024-04-04 | RICKEY HAWKINS v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-22-0392-I-1, April 4, 2024 | AT-0752-22-0392-I-1 | NP |
1,884 | https://www.mspb.gov/decisions/nonprecedential/Doyle_WilliamDE-0752-21-0204-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM DOYLE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-21-0204-I-2
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
B
obby R. Devadoss , Esquire, Claire Ocana , Esquire, and Morgan
Valasquez , Esquire, Dallas, Texas, for the appellant.
Eric J. Teegarden , Esquire, Fort McCoy, 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
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).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address an additional due process claim, we AFFIRM the initial decision.
BACKGROUND
The appellant was removed from his position as Alcohol & Drug Control
Coordinator for the Army Reserve Command at Fort Douglas in Salt Lake City,
Utah, for “sending an electronic mail (email) message to multiple recipients that
included language of a threatening nature and for being on duty while under the
influence of alcohol/drugs, to a degree which would interfere with proper
performance of duty or would be prejudicial to the maintenance of discipline.”
Doyle v. Department of the Army , MSPB Docket No. DE-0752-21-0204-I-1,
Initial Appeal File (IAF), Tab 7 at 13. The agency specifically alleged that the
appellant sent an email to approximately 7,500 employees and contractors within
the 76th Operation Response Command in which he said “[y]ou are traitors to the
US Constitution and God. You will die.” Id. The agency further alleged that on
the same day, the appellant had telephone conversations both with his first-level
supervisor and with local police in which he admitted sending the email and
appeared to be intoxicated because he was slurring his words. Id. at 13, 96. As a
result of the appellant’s email, “tenant organizations on Fort Douglas released
their workforces early” and “Fort Douglas increased its security posture.”
Id. at 14. 2
The appellant filed this appeal. IAF, Tab 1 at 4, 6. After holding a
hearing, the administrative judge issued an initial decision affirming the removal.
Doyle v. Department of the Army , MSPB Docket No. DE-0752-21-0204-I-2,
Refiled Appeal File (RAF), Tab 7, Initial Decision (ID) at 1, 17. She found that
the agency proved its narrative charge by preponderant evidence. ID at 5-7.
She rejected the appellant’s implied arguments that the agency violated his due
process rights. ID at 12-16; e.g., IAF, Tab 7 at 24-26. She concluded that the
agency proved a nexus between the appellant’s misconduct and the efficiency of
the service, that the deciding official properly considered the relevant Douglas
factors, and that the penalty of removal was within the limits of reasonableness.2
ID at 7-12.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant
challenges the administrative judge’s finding that the agency met its burden of
proof concerning the charge and the reasonableness of the penalty. PFR File,
Tab 1 at 6-9, 13-15. He argues that the administrative judge erred in crediting the
testimony of both his first-level supervisor and the deciding official. Id. at 11-13.
He also reasserts most of his due process claims and raises new ones. PFR File,
Tab 1 at 9-11, 14-15.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the charge.
The agency proposed and ultimately removed the appellant based on a
single, unlabeled narrative charge. IAF, Tab 7 at 11-15, 87-92. It generally
described his misconduct as sending an email with “threatening language” and
being under the influence of alcohol such that it could interfere with his work
performance or the maintenance of discipline. Id. at 13, 87. The administrative
judge found that the agency proved its charge, including that the appellant sent
2 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. 3
the email in question while working and was intoxicated when he did so.
ID at 5-7. She also concluded that the appellant’s email caused the agency to
take certain increased security measures and caused tenant organizations
to release their full-time staff early on the day in question. ID at 3, 7; IAF,
Tab 7 at 22.
The parties do not dispute on review that the appellant sent the email while
working. ID at 6; PFR File, Tab 1 at 7. However, the appellant appears to
disagree that the agency’s increased security measures were sufficient to justify
its description of his email as threatening. ID at 7; PFR File, Tab 1 at 14.
He concedes that he had “one drink during lunch prior to sending his email” and
that he was still under the influence of alcohol when he spoke to the police 1 hour
after sending the email. Hearing Transcript (HT) at 13, 16 (testimony of the
appellant); IAF, Tab 7 at 97; PFR File, Tab 1 at 7. However, he disagrees that, as
charged by the agency, he was intoxicated such that he could not perform his job
duties. PFR File, Tab 1 at 6-7. He also argues that the agency failed to prove
that his email interfered with the maintenance of discipline. Id. at 8.
We turn first to the appellant’s arguments that the agency’s security
measures do not reflect that his email was threatening, and, relatedly, that the
agency failed to prove his email was prejudicial to the maintenance of discipline.
PFR File, Tab 1 at 6-7, 11. Although not framed by the appellant as such,
we find that these arguments go to the interpretation of the agency’s charge.
An agency is not required to affix a label to a charge but may simply describe
actions that constitute misbehavior in narrative form in its charge letter. Otero v.
U.S. Postal Service , 73 M.S.P.R. 198, 202-03 (1997). Hypertechnical common
law pleading is not Board practice, and so an agency is not required to narrowly
label its charge with magic words for it to be sustained by the Board. Id. at 203.
Here, the administrative judge appropriately found that the gravamen of the
agency’s charge was that the appellant sent the email at issue and was impaired
by alcohol during the workday. ID at 6. Accordingly, she found that the agency4
was not required to prove that the appellant threatened his coworkers under the
Metz test, and instead sustained the specification because the agency proved the
facts outlined in its proposal. ID at 7 (citing Metz v. Department of the Treasury ,
780 F.2d 1001, 1002-04 (Fed. Cir. 1986) (identifying five evidentiary factors for
determining whether an agency proved an employee made a threat under the
applicable reasonable person standard)). We find no error in this respect.
The mere fact that an agency describes an appellant’s conduct as “threatening” in
its narrative charge does not require the application of Metz. See Otero,
73 M.S.P.R. at 201-04 (declining to apply the Metz test to a charge of improper
conduct notwithstanding the agency’s description of the appellant’s conduct as
“threatening” in the narrative accompanying the charge); see also Pinegar v.
Federal Election Commission , 105 M.S.P.R. 677, ¶ 28 (2007) (noting that the
agency charged the appellant with inappropriate remarks, not with making a
threat, and therefore, it was not required to prove whether the conduct constituted
a threat); Wiley v. U.S. Postal Service , 102 M.S.P.R. 535, ¶¶ 2, 10-11 (2006)
(finding that the agency was not required to prove that the appellant’s threatening
remarks constituted a threat under the Metz test when the agency charged him
with improper conduct in violation of its zero tolerance policy based on
threatening remarks, which he made in the presence of two coworkers), aff’d per
curiam, 218 F. App’x 1001 (Fed. Cir. 2007). Here, the agency specified in its
proposed removal that the appellant sent the email, its contents, the date it was
sent, and its recipients. IAF, Tab 7 at 87. We discern no basis to disturb the
administrative judge’s unchallenged determination that the agency proved these
facts; thus, she did not err in finding that the agency proved its narrative charge.
ID at 5-6.
In any event, the appellant’s argument regarding the agency’s security
response is unavailing. According to the appellant, the agency was already
considering increasing security . PFR File, Tab 1 at 13. The record contradicts
the appellant’s argument. During the hearing, the Fourth Protection5
Noncommissioned Officer-in-Charge (NCOIC) testified that he was considering
increasing security at the Fort Douglas gates due to the events of January 6, 2021,
but decided it was unnecessary due to other precautions in place. HT at 78-79,
83-85 (testimony of the NCOIC). However, he testified that the General in
charge of Fort Douglas ordered that military police be present at the gates in
response to the appellant’s email. HT at 78-79 (testimony of the NCOIC).
The appellant has not challenged the veracity of the NCOIC’s testimony. Thus,
the appellant’s assertion that the agency did not increase security in response to
his statement to approximately 7,500 employees, “you will die,” is unsupported.
IAF, Tab 7 at 97.
We similarly reject the appellant’s argument that the agency did not prove
that he was under the influence of alcohol to a degree which would interfere with
the proper performance of duty. PFR File, Tab 1 at 7-8. Again, we note that the
agency used a narrative charge. When, as here, the agency’s charge contains a
narrative explanation for the basis of its action, the agency may sustain its charge
by proving one or more of the incidents described therein; proof of every incident
is not required. Otero, 73 M.S.P.R. at 204. In any event, when an agency
provides two alternative descriptions of a charge, it need only prove one of them.
Jenkins v. Department of the Treasury , 104 M.S.P.R. 345, ¶ 9 (citing Lachance v.
Merit Systems Protection Board , 147 F.3d 1367, 1372-74 (explaining that when
an agency “set forth two alternative characterizations” of a charge, proof of one
of those alternatives may be sufficient to sustain the charge)), aff’d per curiam ,
244 F. App’x 349 (Fed. Cir. 2007).
Here, the agency alleged that the appellant was “under the influence . . . to
a degree which would interfere with proper performance of duty, or would be
prejudicial to the maintenance of discipline.” IAF, Tab 7 at 87.3 Thus,
3 To the extent the appellant is arguing on review that the agency failed to prove he was
intoxicated, or that his intoxication caused him to send out the email, we are not
persuaded. PFR File, Tab 1 at 7-8. In responding to the proposed removal, the
appellant sought to excuse his behavior, in part, by indicating that he had been drinking.6
the agency could prove misconduct based either on the appellant’s potential
inability to perform his duties or the potential prejudice to the maintenance of
discipline. As discussed above, the agency proved the latter, and thus the charge.
The administrative judge properly found that the agency did not have to
prove a particular level of response to show that the appellant’s conduct “would
be prejudicial to the maintenance of discipline.” ID at 7. We note that
“discipline” is a broad term, which the dictionary defines as “control gained by
enforcing obedience or order” and “orderly.” Merriam-Webster’s Collegiate
Dictionary 330 (10th ed. 2002). The appellant’s intoxication clearly impacted the
state of order, because his email caused tenant agencies on Fort Douglas to
release employees early as a safety precaution. IAF, Tab 7 at 14, 22.
Although it was not necessary for the agency to prove the alternative basis
of its charge, we conclude it did so. The appellant’s intoxication at work plainly
interfered with his job duties as the Alcohol & Drug Control Coordinator, such as
training individuals who conduct drug and alcohol testing. HT at 8 (testimony of
the appellant). As the deciding official reasonably explained, “[t]he [Alcohol and
Drug Coordinator] should be a person who [is not intoxicated while on duty].
IAF, Tab 7 at 25. He characterized his drinking as “a terrible decision,” and described
his efforts to “ensure that nothing like this happens again,” including getting “rid of all
the alcohol in [his] house.” Id. Further, he essentially admitted during his hearing
testimony that he was under the influence of alcohol when he sent the email. HT
at 12-13 (testimony of the appellant). An agency may rely on an appellant’s admissions
in support of its charge, and an appellant’s admission to a charge can suffice as proof of
the charge without additional proof from the agency. Cole v. Department of the Air
Force, 120 M.S.P.R. 640, ¶ 9 (2014). Here, the appellant did not attempt to recant his
admissions or claim they were involuntary. Further, his testimony is consistent with his
prior admission. Therefore, we find his admission and testimony are preponderant
evidence that his use of alcohol caused him to send out the email. See id., ¶¶ 9-11
(finding that an agency proved an appellant used marijuana when he made numerous
unrecanted admissions that he did not claim were coerced or otherwise involuntary). In
light of this determination, we decline to address the appellant’s argument that the
administrative judge should not have credited the testimony of the appellant’s first-level
supervisor as to the appellant’s slurred speech and “tirade” during a conversation
following the email. PFR File, Tab 1 at 8; ID at 6-7; HT at 33-34 (testimony of the
appellant’s first-level supervisor).7
There’s a lot of trust we place in . . . the [Alcohol and Drug Coordinator] as well
to adhere to the same standards we would expect of service members[.]”
HT at 53 (testimony of the deciding official).
Therefore, the appellant has not provided a reason to disturb the
administrative judge’s finding that the agency proved the essence of its charge.
The administrative judge properly rejected the appellant’s due process arguments.
The appellant also challenges the penalty of removal on due process
grounds. Specifically, he argues that (1) the deciding official consulted with
“Legal and LMER” without informing the appellant, (2) the agency did not
specify which infraction on the table of penalties covered the appellant’s
misconduct, and (3) the deciding official said he relied on the appellant’s lack of
trust in his coworkers although the issue of trust was not mentioned in the
proposed removal letter. PFR File, Tab 1 at 9-11, 14-15. The appellant also
alleges that the agency never provided him with copies of coworkers’ complaints,
social media posts, and media requests concerning the email, despite the fact that
both the proposal and final decision letter referenced them in support of the
penalty of removal. Id.; IAF, Tab 7 at 14, 22. The administrative judge rejected
these arguments below, reasoning that the appellant had a meaningful opportunity
to respond to all of the evidence the deciding official considered.4 ID at 12-16.
A deciding official violates an employee’s due process rights when he
relies upon new and material ex parte information as a basis for his decisions on
either 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). While
confirming or clarifying information is not new, previously undisclosed opinions
4 The administrative judge found the appellant failed to prove that the deciding official
considered the U.S. Army Reserve’s decision to permanently revoke the appellant’s
access to its classified and unclassified networks. ID at 15-16; RAF, Tab 2 at 9-14.
The appellant does not challenge this determination on review, and we discern no basis
to disturb it. 8
on the evidence are. Johnson v. Department of the Air Force , 50 F.4th 110,
115-16 (Fed. Cir. 2022)
The appellant has not identified any new and material evidence the
deciding official purportedly obtained in conversations with “Legal and LMER.”
See 5 C.F.R. § 1201.115(a)(2) (“A petitioner who alleges that the judge made
erroneous findings of material fact must explain why the challenged factual
determination is incorrect and identify specific evidence in the record that
demonstrates the error.”). Nor has he challenged the veracity of the deciding
official’s testimony that his conversation with “Command’s attorney” did nothing
more than confirm that removal was not “outside of [his] bounds as the deciding
official.” HT at 52-53 (testimony of the deciding official) .
Similarly, the appellant has not shown that the agency’s failure to specify
an offense in the table of penalties and explicitly reference his lack of trust in the
proposal letter were new and material evidence. Regarding the agency’s table of
penalties, the appellant appears to be reraising his argument from below that
he was not able to respond fully to the proposed removal because the agency did
not label its charge.5 HT at 26-27 (testimony of the appellant); IAF, Tab 7 at 24,
27-28. The administrative judge found no due process violation, and we agree.
ID at 13-14. An agency denies an appellant due process when its deciding
official relies, without notifying the appellant, on the recommended penalty in its
table of penalties for an offense with which he was not charged. Jenkins v.
Environmental Protection Agency , 118 M.S.P.R. 161, ¶¶ 9-12 (2012). However,
the mere lack of a charge label is not a violation of due process. See Otero,
73 M.S.P.R. at 202.
5 The appellant also suggested below that the agency erred in failing to provide him
with a copy of its table of penalties. IAF, Tab 7 at 27-28. The administrative judge
was not persuaded, noting that the table was publicly available online. ID at 14. We
further observe that the appellant submitted a copy with his prehearing submissions
below. RAF, Tab 2 at 26-33. The appellant does not contest the determination that he
could have viewed the table of penalties at any time on the internet, and we discern no
basis to disturb it.9
Consistent with the agency’s decision to use a narrative charge, the
deciding official testified that he generally considered the agency’s table of
penalties but did not “know that there was one [offense that he] considered the
most.” HT at 64 (testimony of the deciding official); IAF, Tab 7 at 22, 24. The
appellant has not identified any evidence that the deciding official considered an
offense that was inconsistent with the agency’s narrative charge. Nor did he
testify that he viewed the narrative charge as correlating with a particular offense
on the agency’s table. Therefore, the appellant has not stated a basis to grant
review.
We likewise find that the deciding official’s reliance on the appellant’s
lack of trust in his coworkers did not violate his due process rights. The
appellant’s attorney made this due process argument in his closing argument;
however, the administrative judge did not address it. HT at 91-92 (closing
argument of the appellant’s attorney). Therefore, we modify the initial decision
to do so. An employee is “not deprived of due process by not being advised in
advance that the deciding official might draw [an] inference from the nature of
the charged conduct.” Harding v. U.S. Naval Academy , 567 F. App’x 920,
925-26 (Fed. Cir. 2014).6 The agency’s proposal notice quoted the appellant’s
email, in which he identified the approximately 7,500 coworkers receiving it as
“traitors.” IAF, Tab 7 at 87, 97. In making his penalty determination, the
deciding official observed that the appellant “has made it clear that the does not
trust [his coworkers] and [they] are traitors, a quite slanderous accusation.” Id.
at 23. Similarly, the deciding official testified that the use of the word “traitor”
in the proposal notice “signifie[d] some lack of trust” by the appellant in his
coworkers. HT at 62 (testimony of the deciding official). We find that the
agency did not violate the appellant’s due process because the deciding official
6 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court’s reasoning persuasive, as we do here. See
Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513, ¶ 12 (2011).10
logically inferred from the use of the word “traitors” that the appellant did not
trust his coworkers.
Finally, the appellant argued below and on review that the agency failed to
provide him with evidence of coworkers’ complaints, social media posts,
or media requests concerning his email. HT at 91 (closing argument of the
appellant’s attorney); PFR File, Tab 1 at 9-10. The administrative judge rejected
this argument because there was no evidence that the deciding official received
those documents himself. ID at 14-15; HT at 64 (testimony of the deciding
official). She properly concluded that the appellant knew the information would
be considered and had the opportunity to respond before he was removed.
ID at 15; see Stone, 179 F.3d at 1377. Specifically, she quoted the proposal
notice, which stated “[y]our email has appeared on social media.” ID at 15
(quoting IAF, Tab 7 at 88).
In responding to the proposal, the appellant acknowledged that it stated that
his email “may have been shared online,” but defended his actions on the basis
that he had not shared the email or seen any online posts containing it.
IAF, Tab 7 at 28. He did not request any further materials. Id. The Board has
found that there is no due process violation when, as here, the appellant fails to
request the underlying materials on which the agency relies in reaching the
removal decision. McNab v. Department of the Army , 121 M.S.P.R. 661, ¶ 18
(2014). For the same reason, the appellant cannot claim that the agency’s failure
to provide evidence of complaints, social media posts, or media requests
constituted harmful error.7 See id., ¶¶ 16-17 (finding no harmful error because
7 Once the Board determines that the ex parte communications did not violate the
appellant’s due process rights, it must consider whether the agency’s failure to specify
in its proposed removal a charge in the table of penalties, that it was considering the
appellant’s lack of trust in his coworkers, and that the deciding official had a
conversation with “Legal and LMER” constituted harmful error. Ward, 634 F.3d
at 1282. The appellant has not pointed to any rule the agency violated, and we are not
aware of one. Moreover, there is no suggestion that the agency would reach a different
conclusion in the absence of such error. Stephen v. Department of the Air Force ,
47 M.S.P.R. 672, 685 (1991) (explaining that the Board will reverse the action for11
the appellant did not request the materials underlying his removal). Therefore,
we affirm the administrative judge’s finding that the agency’s failure to provide
these documents did not amount to a due process violation.
The administrative judge properly found that the agency established a nexus
between the appellant’s misconduct and the efficiency of the service.
The administrative judge concluded that there was a nexus between the
appellant’s misconduct and the efficiency of the service. ID at 7-8.
The appellant avers that the agency failed to prove that his removal promotes the
efficiency of the service for a variety of reasons, including for example that
“there is no tangible evidence that this event caused the Agency to need to
increase security.” PFR File, Tab 1 at 14-15. There is a presumption of nexus
when the misconduct occurred in part at work. Campbell v. Department of the
Army, 123 M.S.P.R. 674, ¶ 24 (2016) (citing Parker v. U.S. Postal Service ,
819 F.2d 1113, 1116 (Fed. Cir. 1987)). As the administrative judge found and the
appellant does not dispute, the appellant’s sustained misconduct occurred while
he was on duty and involved the use of Government equipment. ID at 8.
Therefore, we find the appellant’s arguments without merit and affirm the
administrative judge’s finding that the agency proved nexus.
The administrative judge properly found that the penalty was within the limits of
reasonableness.
The administrative judge found that the deciding official properly
considered the relevant Douglas factors before concluding that removal was
appropriate. ID at 8-11. She therefore deferred to his penalty selection. ID at 8.
After reviewing the deciding official’s penalty analysis, the administrative judge
harmful error only when the evidence and argument of record shows that the procedural
error was likely to have caused the agency to reach a conclusion different from the one
it would have reached in the absence or cure of the error). Nor did the fact that the
deciding official did not review the social media posts constitute harmful error because
the appellant has not identified any rule requiring the deciding official to review the
documents, and there is no suggestion that he would have reached a different conclusion
had he either reviewed the documents or not referenced them in the removal decision.
See Stephen, 47 M.S.P.R. at 685.12
concluded that a removal did not exceed the tolerable limits of reasonable.
ID at 8-12. The appellant again argues that the penalty of removal is
unreasonable. PFR File, Tab 1 at 13-15; RAF, Tab 2 at 4, Tab 4 at 4.
When, as here, all of the agency’s charges have been 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. Davis v. U.S. Postal Service , 120 M.S.P.R.
457, ¶ 6 (2013). 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. The Board will modify the penalty only when it finds that the
deciding official failed to weigh the relevant factors or that the penalty the
agency imposed clearly exceeded the bounds of reasonableness. Davis,
120 M.S.P.R. 457, ¶ 6.
The administrative judge concluded that the deciding official properly
considered the relevant Douglas factors based on his written analysis and
testimony. ID at 8-11. She credited the deciding official’s testimony concerning
the severity of the appellant’s misconduct and its relation to his job duties.
ID at 9-10. Specifically, she credited the deciding official’s testimony that the
appellant, as the Alcohol & Drug Control Coordinator, should not have been
intoxicated on duty. ID at 9; HT at 53 (testimony of the deciding official).
As discussed above and contrary to the appellant’s suggestion, the agency
increased its security because of his email. HT at 82-85 (testimony of the
NCOIC). Further, tenant organizations released their full-time staff early on the
day in question. IAF, Tab 7 at 22.
The administrative judge found that organizations with whom the appellant
worked expressed concern about working with him and that his email appeared on
social media, thereby rejecting the appellant’s argument that his email did not
create notoriety for the agency. ID at 16; HT at 39, 42-43 (testimony of the
Human Resources Officer), 54 -55 (testimony of the deciding official); PFR File,13
Tab 1 at 15. Although the appellant argues that the two most similar charges on
the agency’s table of penalties do not list removal as a penalty for a first offense,
the table is only one factor to be considered in assessing the reasonableness of a
penalty. PFR File, Tab 1 at 15; see Phillips v. Department of the Interior ,
95 M.S.P.R. 21, ¶ 17 (2003), aff’d, 131 F. App’x 709 (Fed. Cir. 2005). This is
especially true when, as here, the agency has designated the table as a “guide to
discipline” and allows “[d]eviations” for matters such as when the misconduct is
“especially serious.” RAF, Tab 2 at 26; see Phillips, 95 M.S.P.R. 21, ¶ 17
(concluding that it was within a deciding official’s discretion to apply the listed
misconduct that most nearly resembled the circumstances of the appellant’s case
given that the agency described the table of penalties as a “[g]uide” and “general
framework within which supervisors may exercise sound judgment in dealing
with the particular circumstances”).
The administrative judge found that the deciding official made
an independent decision to remove the appellant. ID at 11. She acknowledged
that the deciding official stated that the penalty of removal was too severe in
an initial email to an agency Human Resources Officer approximately 3 weeks
before he issued the removal decision. Id.; RAF, Tab 2 at 24. However,
she credited the deciding official’s testimony that he prematurely expressed that
opinion before reviewing the Douglas factors and that he concluded that removal
was appropriate after conducting that analysis. ID at 11; HT at 51 (testimony of
the deciding official).
On review, the appellant argues that the administrative judge erred in
crediting the deciding official’s testimony because he testified at one point that
he could not consider the appellant’s intent behind the email but, according to the
appellant, contradicted himself when he later testified that he considered the word
“traitor” to signify a lack of trust. PFR File, Tab 1 at 12. He argues that the
deciding official’s “contradictory, noncommittal responses” draw his credibility
into question. Id. The Board must give “special deference” to an administrative14
judge’s demeanor-based credibility determinations, “[e]ven if demeanor is not
explicitly discussed.” Purifoy v. Department of Veterans Affairs , 838 F.3d 1367,
1373 (Fed. Cir. 2016).
Here, the appellant has not provided a sufficiently sound reason to overturn
the administrative judge’s credibility finding, and we discern none. ID at 11; see
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding
that the Board may overturn an administrative judge’s demeanor-based credibility
findings only when it has “sufficiently sound” reasons for doing so).
The deciding official testified that he could not know whether the appellant
intended the email as a threat and because he “could only consider what was sent
in that email.” HT at 58 (testimony of the deciding official). He also testified
that by using the word “traitor” in the appellant’s email he “signifie[d] some lack
of trust” in his coworkers. HT at 62 (testimony of the deciding official). We do
not perceive these statements to be inconsistent. The deciding official could have
concluded that the appellant lacked trust in his coworkers because he called his
coworkers traitors in the email itself, while at the same time being unable to
further determine the appellant’s intent. The deciding official’s testimony that
he did not consider whether the appellant’s actions were malicious supports our
interpretation. HT at 58-59 (testimony of the deciding official). Therefore,
we defer to the administrative judge’s decision to credit the deciding official’s
testimony.
The appellant has not identified any mitigating factors that the deciding
official failed to consider. PFR File, Tab 1. As the administrative judge
recognized, the deciding official considered that “the appellant had no prior
disciplinary actions, and had 17 years of successful service with the government.”
ID at 10; IAF, Tab 7 at 21. Further, the deciding official considered the
appellant’s expressed remorse and additional “significant mitigating
circumstances,” including “[a]lcohol abuse[, the] anniversary of [his] spouse’s
death[,] . . . [and] stress.” ID at 10-11; IAF, Tab 7 at 22-23. Nonetheless,15
the administrative judge explained that the deciding official reasonably
determined that aggravating factors outweighed those mitigating factors.
ID at 11; IAF, Tab 7 at 23. We see no reason to disturb these well -reasoned
findings. McCarty v. Department of the Navy , 72 M.S.P.R. 201, 202-03, 205, 207
(1996) (determining that an administrative judge erred in mitigating the removal
to a lesser penalty when an appellant with prior discipline was charged with
making a statement to a coworker that resulted in anxiety and disruption in the
workplace, notwithstanding the appellant’s 15 1/2 years of satisfactory service),
aff’d per curiam , 114 F.3d 1207 (Fed. Cir. 1997) ; Tate v. Department of Defense ,
57 M.S.P.R. 180, 189-91 (1993) (finding the penalty of removal was reasonable
for the sustained charges of threatening a supervisor and absence without leave
even though they were the appellant’s first offenses in 24 years of service).
Accordingly, we affirm the initial decision as modified above.
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
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
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. 17
(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: 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 | Doyle_WilliamDE-0752-21-0204-I-2_Final_Order.pdf | 2024-04-04 | WILLIAM DOYLE v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-21-0204-I-2, April 4, 2024 | DE-0752-21-0204-I-2 | NP |
1,885 | https://www.mspb.gov/decisions/nonprecedential/Black_Erroll_T_SF-0714-18-0797-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERROLL T. BLACK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-18-0797-I-1
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Erroll T. Black , North Las Vegas, Nevada, pro se.
Stephen Funderburk , Seattle, Washington, for the agency.
Matthew S. Voss , North Las Vegas, Nevada, 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 for failure to prosecute. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On September 14, 2018, the appellant filed a Board appeal challenging his
removal pursuant to 5 U.S.C. § 714. Initial Appeal File (IAF), Tab 1. After
filing his initial appeal, however, he did not participate in proceedings or respond
to any of the administrative judge’s orders. In particular, he did not appear for
the preliminary status and prehearing conferences, did not submit a prehearing
submission, did not comply with the administrative judge’s order granting the
agency’s motion to compel, and did not respond to her order to show cause why
the appeal should not be dismissed for failure to prosecute. IAF, Tab 11 at 1,
Tab 18 at 1, Tab 21, Initial Decision (ID) at 2. The administrative judge thus
found that the appellant had failed to exercise due diligence and dismissed the
appeal with prejudice for failure to prosecute. ID at 3.
The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Leseman v. Department of the Army ,
122 M.S.P.R. 139, ¶ 6 (2015); 5 C.F.R. § 1201.43(b). Such a sanction should be
imposed only when a party has failed to exercise basic due diligence in
complying with Board orders or when a party has exhibited negligence or bad
faith in its efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. Repeated failure2
to respond to multiple Board orders can reflect a failure to exercise basic due
diligence. Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶ 9 (2011). Absent
an abuse of discretion, the Board will not reverse an administrative judge’s
determination regarding sanctions. Leseman, 122 M.S.P.R. 139, ¶ 6.
As noted above, the appellant did not respond to the administrative judge’s
orders or appear for the scheduled status conference or prehearing conference .
After his failure to appear for the preliminary status conference, the
administrative judge warned him that his continued failure to respond to her
orders could lead to the imposition of sanctions, including dismissal of his appeal
for failure to prosecute. IAF, Tab 1 at 1. In addition, she gave him an
opportunity to show cause why his appeal should not be dismissed for failure to
prosecute, but he did not respond. IAF, Tab 18 at 1. Given the appellant’s
repeated failure to respond to the administrative judge’s orders below, we agree
that the sanction of dismissal with prejudice was appropriate. See Leseman,
122 M.S.P.R. 139, ¶ 6.
On review, the appellant appears to argue that the sanction of dismissal was
inappropriate because he did not receive any of the administrative judge’s orders.
PFR File, Tab 1. He explains that he was “in the process of moving,” went on
three vacations, and did not check his mail every day. Id. at 3. He further states
that “certified mail is best” or a phone call to ensure that he is “properly notified”
of hearing dates. Id. at 4. However, when he filed his initial appeal, he
registered as an e-filer and consented to accept case-related documents in
electronic form at the email address he provided. IAF, Tab 1 at 2; see 5 C.F.R.
§ 1201.14(e)(1). Thus, he is deemed to have received the administrative judge’s
orders on the dates of electronic submission. 5 C.F.R. § 1201.14(m)(2); IAF,
Tab 9 at 2, Tab 10 at 5, Tab 11 at 8, Tab 18 at 3. Further, as an e-filer, the
appellant was responsible for ensuring that email from @mspb.gov was not
blocked by filters, 5 C.F.R. § 1201.14(j)(2), and for monitoring case activity at
the Repository at e -Appeal Online to ensure that he received all case -related3
documents, 5 C.F.R. § 1201.14(j)(3). Therefore, even if the appellant did not
receive the administrative judge’s orders, it was attributable to his own lack of
due diligence and provides no basis to disturb 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
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 | Black_Erroll_T_SF-0714-18-0797-I-1__Final_Order.pdf | 2024-04-04 | ERROLL T. BLACK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-18-0797-I-1, April 4, 2024 | SF-0714-18-0797-I-1 | NP |
1,886 | https://www.mspb.gov/decisions/nonprecedential/Beaman_Clifton_E_DC-0752-21-0543-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLIFTON E. BEAMAN, JR.,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-21-0543-I-1
DATE: April 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
ameron Bonney Evans , Esquire, and Neil Bonney , Esquire, Virginia
Beach, Virginia, for the appellant.
Lorna Jerome , Esquire, and Edith L. Moore McGee , Washington, D.C., for
the agency.
Russell E. Booker, III , Esquire, Norfolk, 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
affirmed his removal. For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant’s petition for review, VACATE the initial decision, and REVERSE the
appellant’s removal.
BACKGROUND
The appellant was employed as a GS-8 Lead Firefighter with the U.S. Coast
Guard. Beaman v. Department of Homeland Security , MSPB Docket
No. DC-0752-21-0543-I-1, Initial Appeal File (0543 IAF), Tab 5 at 40. On
January 16, 2021, K.Q., another Firefighter, returned to work after testing
positive for COVID-19. 0543 IAF, Tab 7 at 33-35. The appellant and several
other firefighters were concerned that K.Q. was still contagious, because K.Q.
was still symptomatic, was not consistently wearing a mask, and allegedly stated
that he refused to take a COVID-19 test.2 Id. at 34-35; Pierce v. Department of
Homeland Security , MSPB Docket No. DC-0752-21-0576-I-1, Hearing Recording
(0576 HR), dated Dec. 6, 2021 (testimony of the appellant).
That same day, i.e., January 16, 2021, the appellant and two other
firefighters, Pierce and Simpson, spoke to their supervisor about their concerns
regarding K.Q.’s return. 0543 IAF, Tab 7 at 11, 18-19, 23; Beaman v.
Department of Homeland Security , MSPB Docket No. DC-0752-21-0543-I-1,
Hearing Recording (0543 HR), dated Nov. 29, 2021 (testimony of the supervisor).
According to the supervisor, the appellant, Pierce, and Simpson threatened to not
report to duty for their next shift, i.e., January 18 to January 19, 2021, if K.Q.
remained at the fire station. 0543 IAF, Tab 7 at 11; 0543 HR, dated Nov. 29,
2021 (testimony of the supervisor). Specifically, the supervisor claimed that
Pierce and Simpson said that they were “tapping out” and that the appellant said
that the supervisor “[would not] be the only one not here,” referring to the
supervisor’s upcoming leave. 0543 IAF, Tab 7 at 11; 0543 HR, dated Nov. 29,
2021 (testimony of the supervisor). On January 17, 2021, the appellant and four
2 K.Q. had been medically cleared to return to work. 0543 IAF, Tab 7 at 33-34; Beaman
v. Department of Homeland Security , MSPB Docket No. DC-0752-21-0543-I-1, Hearing
Recording (0543 HR), dated Nov. 29, 2021 (testimony of the Fire Chief).2
other firefighters, i.e., Pierce, Simpson, Hunt, and McDilda, called out sick for
the January 18 to January 19, 2021 shift. 0543 IAF, Tab 7 at 24-25.
The agency conducted an administrative investigation into the five
firefighters’ “alleged coordination of [a] work stoppage.” Id. at 5. Based on the
results of the administrative investigation, the agency removed all five
firefighters, i.e., Pierce, Simpson, McDilda, Hunt, and the appellant, effective
July 16, 2021, on charges of improper conduct and providing inaccurate
information. 0543 IAF, Tab 5 at 44-46, 104-06; Pierce v. Department of
Homeland Security , MSPB Docket No. DC-0752-21-0576-I-1, Initial Appeal File
(0576 IAF), Tab 5 at 21-23, 105 -07; Hunt v. Department of Homeland Security ,
MSPB Docket No. DC-0752-21-0551-I-1, Initial Appeal File (0551 IAF), Tab 5
at 28-29, 53-54; Simpson v. Department of Homeland Security , MSPB Docket No.
DC-0752-21-0570-I-1 (0570 IAF), Tab 5 at 29-32, 54-56; McDilda v. Department
of Homeland Security , MSPB Docket No. DC-0752-21-0582-I-1, Initial Appeal
File (0582 IAF), Tab 7 at 21-22, 107-08.
The five firefighters, who were represented by the same attorney, filed
separate Board appeals challenging their removals.3 0543 IAF, Tab 1; 0551 IAF,
Tab 1; 0570 IAF, Tab 1; 0576 IAF, Tab 1; 0582 IAF, Tab 1. Because the cases
involved very similar facts, the administrative judge adjudicated the cases
together.4 Specifically, she scheduled the testimony of witnesses relevant to all
five cases, such as the supervisor, the proposing official, and deciding official, on
one single day, and scheduled the testimony for case-specific witnesses, such as
the appellants, their wives, and doctors, on five separate days.5 0543 IAF,
3 Because the documents and testimony in the record of the other four firefighter cases
can be independently found and verified, we take official notice of it. See 5 C.F.R.
§ 1201.64 (explaining that “[o]fficial notice is the Board’s or judge’s recognition of
certain facts without requiring evidence to be introduced establishing those facts”).
4 The administrative judge did not consolidate the cases.
5 It is unclear why the appellant testified on the same day as Pierce, and thus, his
testimony is located in the record for Pierce v. Department of Homeland Security ,
MSPB Docket No. DC-0752-21-0576-I-1. 0576 HR, dated Dec. 6, 2021.3
Tab 13. Then, the administrative judge issued five separate initial decisions
sustaining the removals of all five firefighters. 0543 IAF, Tab 33, Initial
Decision (0543 ID); 0551 IAF, Tab 32; 0570 IAF, Tab 30; 0576 IAF, Tab 26;
0582 IAF, Tab 32.
The appellant’s removal is the only removal before the Board because he is
the only firefighter that filed a petition for review—thus, we limit our review to
the facts pertinent to his case. As stated above, the appellant was removed based
on charges of improper conduct and providing false information. 0543 IAF,
Tab 5 at 42, 104-06. The first charge, improper conduct, is supported by three
specifications. Id. at 104. The first specification claims that on January 16,
2021, the appellant “coordinated an attempted work stoppage when [he]
influenced other members of the firefighter team [he led] to call in sick for the
[January 18-19, 2021] 48-hour shift. . . .” Id. The agency’s second and third
specifications of the improper conduct charge allege that the appellant
participated in an attempted work stoppage by not reporting to work on
January 18 and January 19, 2021, as “an expression of [his] discontent with
management[].” Id.
The second charge, providing inaccurate information, is supported by five
specifications. Id. at 105. The first three specifications allege that the appellant
provided inaccurate information by calling in sick on January 18 and January 19,
2021 (specification 1), and recording sick leave in the agency’s time and
attendance system for January 18, 2021 (specification 2) and January 19, 2021
(specification 3), when he was “not sick or medically incapacitated.” Id. at 105.
The agency’s fourth specification alleges that the appellant provided inaccurate
information when he claimed during the administrative investigation that “[he]
did not remember saying to [his] supervisor or others that [he was] going to call
in sick.” Id. Finally, the agency’s fifth specification alleges that the appellant
provided inaccurate information when he stated during the administrative4
investigation that “[he] did not recall coordinating an attempted work stoppage by
influencing [his] team members to call in sick.”6 Id.
In the initial decision in the appellant’s appeal, the administrative judge
sustained both charges, finding, among other things, that “the appellant planted
the seed” and “kicked things off” with regards to the sick-out.7 0543 ID at 21-23.
Then, the administrative judge denied the appellant’s claim that the agency
violated his due process rights, finding, in part, that the agency was under no
obligation to provide documents to the appellant that were not considered by the
deciding official in his removal. 0543 ID at 31-32. Next, she denied the
appellant’s harmful error claim, finding that there was no evidence the agency
used the appellant’s approved sick leave against him, violated its policies related
to sick leave or COVID-19, or that it failed to provide a safe working
environment. 0543 ID at 33-35. Finally, after finding that the agency had
established nexus and that removal was within the bounds of reasonableness, the
administrative judge affirmed the appellant’s removal. 0543 ID at 35-41.
The appellant has filed a petition for review, challenging, among other
things, the administrative judge’s findings on the merits of the charges, arguing
that he presented evidence of incapacitation on January 18 and January 19, 2021,
and asserting that he did not coordinate a sick-out, or influence any other
firefighter to participate in a sick-out.8 Petition for Review (PFR) File, Tab 1
6 On review, the appellant objects to the term “work stoppage,” arguing that because of
the way the fire station was set up, it was impossible to have a complete cessation of
operations, i.e., a work stoppage, and thus, the charges cannot stand. Petition for
Review (PFR) File, Tab 1 at 9-10. Because we find that the agency failed to prove its
charges on other grounds, we need not address the accuracy of the work stoppage term.
Nevertheless, in the interest of using precise language, we have chosen to use the phrase
“sick-out” in place of “work stoppage,” unless quoting the agency’s documents.
7 Although the administrative judge sustained the charges, 0543 ID at 23, she did not
explain her findings as it related to the individual specifications, 0543 ID at 21-23.
8 On review, the appellant also argues that the agency committed harmful error by
improperly replacing his supervisor as the proposing official with another manager in
order to impose a harsher penalty and that the agency violated his due process rights by
failing to provide him with the investigator’s notes during the reply period. PFR File,5
at 6-11. The agency has responded in opposition to the appellant’s petition for
review, PFR File, Tab 3, and the appellant has replied to the agency’s response,
PFR File, Tab 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).
As set forth below, we find that the agency has failed to prove that the
appellant committed the misconduct as it alleged. First, we find that the agency
has failed to prove by preponderant evidence that the appellant coordinated the
sick-out, and thus, specification 1 of the first charge, improper conduct, cannot
stand. Then, we find that the agency failed to prove that the appellant was not
Tab 1 at 11-19. Regarding the appellant’s harmful error claim, the supervisor testified
that he requested to be recused as the proposing official because he felt too closely
intertwined with the facts of the cases. 0543 HR, dated Nov. 29, 2021 (testimony of the
supervisor). Thus, there is no evidence that the agency ousted the supervisor as
proposing official in order to install a proposing official who would impose a harsher
penalty, and therefore, we find no harmful error. Next, regarding the appellant’s due
process claim, we agree with the administrative judge that there is no evidence that the
deciding official considered the investigator’s notes in removing the appellant, and
thus, the agency was under no obligation to provide the appellant with these notes
during the reply period. 0543 ID at 31-32. Furthermore, the agency provided the
appellant with the notes during discovery, and thus, he had the opportunity to present
arguments pertaining to those notes in front of the administrative judge. 0543 IAF,
Tab 17 at 59-75.6
medically incapacitated on January 18 and January 19, 2021, and therefore,
specifications 2 and 3 of the improper conduct charge also cannot stand. Then,
we find that, because the agency failed to prove that the appellant was not
medically incapacitated or that he was the coordinator of the sick-out,
specifications 1, 2, 3, and 5 of the agency’s second charge, the providing
inaccurate information charge, cannot stand. Finally, we find that the agency has
failed to prove that the appellant provided inaccurate information when he
claimed not to remember telling his supervisors or others that he was going to call
out sick, and thus, specification 4 also cannot stand. Accordingly, because the
agency failed to prove any of its specifications, neither of its charges can be
sustained, and thus, we order that the appellant’s removal be reversed.
Specification 1 of the improper conduct charge (Charge 1) cannot be sustained
because the agency did not prove by preponderant evidence that the appellant was
the coordinator of the sick-out.
The agency’s first specification underlying the improper conduct charge
alleged that the appellant “coordinated an attempted work stoppage when [he]
influenced other members of the firefighter team [he led] to call in sick for the
[January 18 to January 19, 2021 shift] that [he was] scheduled to work as an
expression of [his] discontent with management’s decision [to allow K.Q. to
return to work].” 0543 IAF, Tab 5 at 104. Of the five firefighters removed, the
appellant is the only one charged with coordinating the sick-out; the others were
simply charged with participating in the sick-out. Compare id. at 104-05, with
0551 IAF, Tab 5 at 53-54; 0570 IAF, Tab 5 at 54-55; 0576 IAF, Tab 5 at 105-06;
0582 IAF, Tab 7 at 107-08. In other words, the agency charged the appellant as
the “ring leader” of the sick-out. 0543 IAF, Tab 5 at 104-05, Tab 7 at 9, 12.
Thus, the agency must meet a higher bar, and prove not just that the appellant
participated in discussions regarding a sick-out, but was the individual
responsible for coordinating the sick-out. Contrary to the administrative judge’s
findings, 0543 ID at 21-23, we do not find that the agency met this burden.7
The agency has presented no evidence, beyond speculation, that the
appellant was the individual responsible for organizing the sick-out. 0543 IAF,
Tab 7 at 9, 12; 0543 HR, dated Nov. 29, 2021 (testimony of the supervisor).
Indeed, it appears that several of the removed firefighters were equally as active
as the appellant in the discussions regarding a sick-out. For instance, during the
January 16, 2021 conversation, Pierce and Simpson both told their supervisor that
they were “tapping out” if K.Q. was allowed to remain at the fire station.
0543 IAF, Tab 7 at 11; 0543 HR, dated Nov. 29, 2021 (testimony of the
supervisor). There is no indication that Pierce or Simpson made this comment
under the influence, or at the instigation, of the appellant. Indeed, while their
supervisor stated that all three firefighters, i.e., Pierce, Simpson, and the
appellant, threatened not report to duty, there is nothing in his testimony about
the conversation that indicates that the appellant was the leader of the group.9
0543 IAF, Tab 7 at 11; 0543 HR, dated Nov. 29, 2021 (testimony of the
supervisor).
The agency also relies heavily on a series of text messages sent in a group
chat, which included the appellant, Pierce, Simpson, Hunt, and McDilda.
0543 IAF, Tab 5 at 94-100, 104-06. These text messages, most of which were
between the appellant, Pierce, and Hunt, refer to the group’s discontent with the
return of K.Q., and appear to discuss a sick-out. Id. at 94-100; 0543 HR, dated
Nov. 29, 2021 (testimony of the deciding official). However, these messages do
not prove that the appellant was the leader of this sick-out effort.
As noted by the administrative judge, the messages appear to demonstrate
that it was Pierce, not the appellant, who was “the most active on the text string
and egged everyone on.” 0543 ID at 22. For instance, it was Pierce who first
9 To the extent that the agency argues that the appellant’s position as the Lead
Firefighter influenced the others to participate in the sick-out, the position of Lead
Firefighter is not a supervisory role, and thus, the appellant had no supervisory control
or influence over his team members. Additionally, the agency has presented no
evidence that the appellant used his position as the team lead to improperly influence
the other firefighters to call out sick.8
confirmed that he would not report to duty, texting “IM OUT BOTH DAYS.”
0543 IAF, Tab 5 at 95 (emphasis and spelling in original). It was also Pierce who
sent the first text on the day the five firefighters called out, asking “[s]o what’s
the word?” and then, receiving no response after more than an hour, stating “[s]o
two of us are out both days so far. I just called in.” Id. at 97. It was then Hunt
who responded “[d]ropped the bomb. Called out [sick leave],” to which Pierce
responded “[t]hree down so far.” Id. at 97-98. Then, after some discussion
between Pierce and the appellant regarding K.Q. working overtime to cover the
shifts, Pierce responded “[f]our of us so far.” Id. at 98-99. The appellant then
responded “5” and Pierce replied “[l]ol almost there.” Id. at 99. While these text
messages may establish that the appellant was involved in discussions regarding a
sick-out, they do not prove that the appellant coordinated and influenced others to
participate in the sick-out.
Although we recognize that the appellant’s behavior may very well
constitute misconduct, participating in discussions regarding a sick-out was not
the basis of the agency’s charge. Id. at 104-05. The Board adjudicates an
agency’s charge as it is described in the agency’s proposal and decision notices.
Stuhlmacher, 89 M.S.P.R. 272, ¶ 14; Rackers, 79 M.S.P.R. at 276. The agency
charged the appellant with coordination of the sick-out, not mere participation in
discussions of a sick-out, and the agency is bound by the charge it brought, not
one it could have brought. See Stuhlmacher, 89 M.S.P.R. 272, ¶ 14 (explaining
that the Board will not sustain an agency action on the basis of charges that could
have been brought but were not) . Therefore, because the agency failed to prove
that the appellant committed the misconduct it described in its proposal notice,
the first specification cannot be sustained.9
Specifications 2 and 3 of the improper conduct charge (Charge 1) cannot be
sustained because the agency failed to prove by preponderant evidence that the
appellant’s failure to report to duty was not the result of medical incapacitation
on January 18 and January 19, 2021.
The agency alleges in its second and third specification that the appellant
“participated in an attempted work stoppage when [he] failed to report for duty as
an expression of [his] discontent with management[]” on January 18 and
January 19, 2021, respectively. 0543 IAF, Tab 5 at 104. It is undisputed that the
agency approved the appellant’s request for sick leave on January 18 and
January 19, 2021. 0543 IAF, Tab 7 at 24-25; 0543 HR, dated Nov. 29, 2021
(testimony of the appellant’s supervisor). Thus, in order to sustain both
specifications, the agency must prove that the appellant’s failure to report for
duty, while he was on approved sick leave, constituted misconduct. In order to
do so, the agency must show that the appellant was actually not entitled to the
approved sick leave, i.e., that he was not incapacitated due to an injury on
January 18 and January 19, 2021. 5 C.F.R. § 630.401(a) (setting forth
requirements for granting sick leave, including incapacitation due to illness or
injury).
In the initial decision, the administrative judge sustained the specifications,
apparently finding that the appellant’s failure to report for duty constituted
misconduct because he was not medically incapacitated on January 18 and
January 19, 2021. 0543 ID at 20-23. However, as the appellant argues on
review, he submitted significant evidence proving that he was incapacitated on
January 18 and January 19, 2021, and therefore, that it was proper for him to be
on approved sick leave those dates. PFR File, Tab 1 at 6-9. For instance, the
appellant presented objective medical evidence, supported by other corroborating
evidence, establishing that he was incapacitated for duty on January 18 and
January 19, 2021. First, his chiropractor testified that, on January 19, 2021, he
treated the appellant for a back injury that the appellant suffered on January 16,10
2021,10 after purportedly falling from a ladder while working on his boat at his
house. 0543 HR, dated Nov. 30, 2021 (testimony of the appellant’s chiropractor).
The chiropractor testified that he performed an examination, which included a
series of motion orthopedic tests, and confirmed that the appellant had suffered an
injury consistent with a fall. Id. He also found no evidence that the appellant
was exaggerating or misrepresenting his condition. Id. Therefore, based on his
medical findings, the chiropractor testified that the appellant was incapacitated
for duty on January 18 and January 19, 2021. Id.
The chiropractor’s testimony is consistent with the medical documentation
in the record, which includes the chiropractor’s report detailing his medical
findings, a copy of the appellant’s x-rays, and a medical note from the
chiropractor excusing the appellant from work until January 25, 2021, to recover
from the accident. 0543 IAF, Tab 5 at 82-91, Tab 24. The appellant’s medical
evidence is also consistent with other evidence in the record, including a letter
from the county’s emergency services department, stating that the appellant was
also absent from his part-time emergency medical technician position during the
same timeframe due to medical reasons. 0543 IAF, Tab 19 at 98. Furthermore,
the appellant was on sick leave from his position with the agency until
January 27, 2021, using a total of 96 hours of sick leave. 0543 IAF, Tab 7 at 6,
37. However, the agency does not appear to question his use of sick leave after
January 19, 2021. 0543 IAF, Tab 5 at 104-06, Tab 7 at 6.
While the appellant has presented significant evidence to support his claims
of incapacitation, the agency has presented no evidence that undermines or
contradicts the appellant’s evidence. While we acknowledge that the agency
presented evidence that the appellant was in discussions with the other
firefighters regarding a sick-out, such evidence does not prove that the appellant
was not also medically incapacitated on January 18 and January 19, 2021.
10 The appellant suffered his injury on January 16, 2021, which was a Saturday, and
because January 18, 2021 was a Federal holiday, the appellant did not seek treatment
until January 19, 2021. 0576 HR (testimony of the appellant). 11
0543 IAF, Tab 5 at 94-100. Although the agency was understandably suspicious
of the appellant’s claims of injury, such suspicions, without more, do not
overcome the appellant’s evidence of incapacitation. Therefore, the agency did
not prove that the appellant’s failure to report to duty, when he was on approved
sick leave, constituted misconduct, and thus, the second and third specifications
of the first charge, improper conduct, cannot be sustained. 0543 IAF, Tab 5
at 104.
In conclusion, the agency has failed to prove the misconduct alleged in any
of the specifications underlying its first charge. Accordingly, the first charge of
improper conduct cannot be sustained.
Specifications 1, 2, and 3 of the providing inaccurate information charge
(Charge 2) cannot be sustained because the agency failed to prove that the
appellant was not incapacitated by injury.
The agency alleges in the first three specifications of the second charge that
the appellant provided inaccurate information by calling out sick (specification 1)
and recording sick leave in the agency’s time and attendance system
(specifications 2 and 3) for January 18 and January 19, 2021, when the appellant
was “not sick or medically incapacitated.” Id. at 105. Thus, to prove all three of
these specifications, the agency must establish that the appellant was “not sick or
medically incapacitated” on January 18 and January 19, 2021. Id. As we have
discussed in length above, the agency failed to prove that the appellant was not
medically incapacitated on January 18 and January 19, 2021, and thus,
specifications 1, 2, and 3 cannot be sustained.
Specification 5 of the providing inaccurate information charge (Charge 2) cannot
be sustained because the agency failed to prove the appellant coordinated the
sick-out.
We address the fifth specification of the second charge, before the fourth
specification, because our previous finding that the agency did not prove that the
appellant coordinated the sick-out directly influences our finding here.
Specifically, the agency’s fifth specification alleges that the appellant provided12
inaccurate information when he stated, during the administrative investigation,
that he “did not recall coordinating an attempted work stoppage by influencing
[his] team members to call in sick.” Id. In order to prove this specification, the
agency must prove that the appellant coordinated the sick-out. As discussed in
detail above, the agency failed prove that the appellant coordinated and
influenced others to participate in a sick-out. Therefore, specification 5 cannot be
sustained.
Specification 4 of the providing inaccurate information charge (Charge 2) cannot
be sustained because the agency failed to prove that the appellant provided
inaccurate information.
In the fourth specification, the agency alleges that the appellant provided
inaccurate information when he claimed during the administrative investigation,
that “[he] did not remember saying to [his] supervisor or others that [he was]
going to call in sick.”11 Id. As we have stated, the Board adjudicates the charge
as it is described in the agency’s proposal and decision notices. Rackers,
79 M.S.P.R. at 276. Because of the manner in which the agency chose to draft
this specification, it is not sufficient to prove that the appellant told his supervisor
and others that he was going to call in sick. Instead, the agency must prove that
the appellant’s statement that he “did not remember” doing so was inaccurate.
0543 IAF, Tab 5 at 105. Thus, because of its language choices, the agency is
required to prove the mental state of the appellant, specifically, whether he was
being truthful when he stated that he did not remember a statement he made
several months earlier. The agency failed to introduce any evidence regarding the
appellant’s mental state during the interview, or any evidence that demonstrates
that the appellant did, in fact, remember telling his supervisor and others that he
was going to call in sick. Therefore, specification 4 cannot be sustained.
11 The appellant claims that, during his interview in the administrative investigation, he
denied that he told his supervisors or others that he was going to call out sick.
PFR File, Tab 1 at 15. Even assuming arguendo that the appellant denied making this
statement in the interview, the specification would still not stand, as the agency would
not have proven the charged misconduct.13
The agency has failed to prove the underlying specifications of either
charge, and thus, its charges of misconduct against the appellant cannot be
sustained. Accordingly, the appellant’s removal is reversed.
ORDER
We ORDER the agency to cancel the removal action and to restore the
appellant to his GS-8 Lead Firefighter (Hazmat Technician/Basic Life Support)
position effective July 16, 2021. 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 Back Pay Act and/or
Postal Service 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 not14
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 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 RIGHTS12
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
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.15
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 at16
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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,17
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.13 The court of appeals must receive your petition for
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. 115-195,18
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. 19
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20
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. | Beaman_Clifton_E_DC-0752-21-0543-I-1_Final_Order.pdf | 2024-04-04 | null | DC-0752-21-0543-I-1 | NP |
1,887 | https://www.mspb.gov/decisions/nonprecedential/Baisden_Clara_M_CH-0432-19-0219-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLARA M. BAISDEN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-0432-19-0219-I-1
DATE: April 4, 2024
THIS ORDER IS NONPRECEDENTIAL1
William J. O’Malley , Esquire, Columbus, Ohio, for the appellant.
C. Michael Meehan , Esquire, Christine Roark , Esquire,
and Jeffrey Csokmay , Esquire, Columbus, Ohio, 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
sustained her performance-based removal. 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 consistent 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).
2
Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed.
Cir. 2021).
BACKGROUND
The Department of Defense (DOD) Defense Logistics Agency (DLA)
appointed the appellant to the position of Contract Specialist, Basic Contract
Administrator, in November 2017. Initial Appeal File (IAF), Tab 33 at 4. She
came to the agency with more than a decade of Federal contracting experience
and two Defense Acquisition Workforce Improvement Act (DAWIA)
certifications. IAF, Tab 31 at 4, 13-16.
In May 2018, approximately 6 months into her time with the agency, the
appellant’s supervisor denied her request for telework, warning that her
performance was unacceptable. IAF, Tab 14 at 96-97. He indicated that the
appellant would be given an evaluation period, but a performance improvement
plan (PIP) would follow if her performance did not improve. Id. at 96.
In July 2018, the agency issued the appellant a written counseling,
indicating that her performance had not yet improved. Id. at 72-76. The
counseling letter recounted five performance standards or elements, the
appellant’s deficiencies in each, and how she must improve. Id.
In August 2018, approximately 9 months into her time with the agency, the
agency placed the appellant on a 90-day PIP. Id. at 64-71. The PIP relied on the
same five performance standards discussed in the counseling letter, again
providing a description of successful performance, the appellant’s deficiencies,
and what the appellant needed to do to improve. Id.
In December 2018, the agency concluded that the appellant failed the PIP.
Id. at 40-44. Consequently, the agency proposed the appellant’s removal for
unacceptable performance, once again relying on the same five performance
standards or critical elements: processing post award requests (PARs),
completing contractor performance assessment ratings system (CPARS)
3
assessments, exercising contract options, timely and accurately completing
contract annual reviews, and timely and accurately completing delivery order
sourcing. Id. at 31-38. After the appellant responded, id. at 25-30, the deciding
official issued a decision to sustain the removal action, id. at 21-24.
The appellant timely filed the instant appeal to challenge the agency’s
removal action. IAF, Tab 1. She raised affirmative defenses of race
discrimination, age discrimination, equal employment opportunity (EEO) reprisal,
and reprisal for filing a complaint with the agency’s Office of Inspector General
(OIG). Id. at 3.
The administrative judge developed the record and held the requested
hearing before affirming the appellant’s removal. E.g., IAF, Tab 39, Hearing
Recording, Day 1, Tab 41, Hearing Recording, Day 2, Tab 42, Initial Decision
(ID). She found that the agency met its burden of proving the appellant’s
unacceptable performance, ID at 4-20, and the appellant failed to prove her
affirmative defenses, ID at 20-26. 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.
ANALYSIS
Remand is required in light of Santos .
At the time the initial decision was issued, the Board’s case law stated that,
to prevail in an appeal of a performance-based action under chapter 43, an agency
must establish by substantial evidence that: (1) the Office of Personnel
Management approved its performance appraisal system; (2) the agency
communicated to the appellant the performance standards and critical elements of
her 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 her
performance during the appraisal period and gave her a reasonable opportunity to
improve; and (5) the appellant’s performance remained unacceptable in at least
4
one critical element. White v. Department of Veterans Affairs , 120 M.S.P.R. 405,
¶ 5 (2013). Substantial evidence is “[t]he degree of relevant evidence that a
reasonable person, considering the record as a whole, might accept as adequate to
support a conclusion, even though other reasonable persons might disagree.”
5 C.F.R. § 1201.4(p). Substantial evidence is a lesser standard of proof than
preponderance of the evidence and, to meet this standard, the agency’s evidence
need not be more persuasive than that of the appellant. Towne v. Department of
the Air Force, 120 M.S.P.R. 239, ¶ 6 (2013). The administrative judge found that
the agency proved these elements. ID at 4-20.
On review, the appellant argues that the agency failed to prove some, but
not all, of the aforementioned elements. PFR File, Tab 1 at 5-22. We will
address those elements that she has specifically challenged, along with one
additional element that is not described above and was not addressed during the
proceedings below.
The agency communicated its performance standards.
An agency is required to communicate to its employees the performance
standards and critical elements of their positions. 5 U.S.C. § 4302(c)(2). Such
communication may occur through written instructions, information concerning
deficiencies and methods of improving performance, memoranda describing
unacceptable performance, responses to the employee’s questions concerning
performance, or in any manner calculated to apprise the employee of the
requirements against which he is to be measured. Chaggaris v. General Services
Administration, 49 M.S.P.R. 249, 254 (1991).
The administrative judge found that the agency proved this element of its
burden because the agency informed the appellant of her performance standards
on at least three occasions: when she was hired, when her supervisor changed, in
or around April 2018, and before the start of her PIP, in or around August 2018.
ID at 7. On review, the appellant acknowledges that agency officials provided
her with the applicable standards on multiple occasions before her PIP, including
5
once reading them aloud. PFR File, Tab 1 at 6. She nevertheless argues that the
agency never truly communicated these standards because there was no “social
contract” or “mutual understanding of how the standards would be met.” Id.
at 5-7. Yet she fails to identify anything about the agency’s communications that
left her unsure of what the agency expected in terms of performance, and we do
not find those performance standards particularly complicated.
To illustrate, the performance standard for completing CPARS assessments
simply required that the appellant “submit[] draft CPAR assessments to
[s]upervisor . . . in CPAR system within 35 calendar days of the end of the
contract performance period.” IAF, Tab 14 at 61, 66-67, 73-74. It further
describes performance that would be deemed unacceptable, such as not meeting
expectations for quality of work and missing targeted deadlines. Id. at 61. Given
the numerous occasions in which the agency provided this information to the
appellant, along with additional information regarding observed deficiencies, we
are unpersuaded by the appellant’s assertion that those standards were never truly
communicated.
The agency provided a reasonable opportunity to improve.
The employee’s right to a reasonable opportunity to improve is a
substantive right and a necessary prerequisite to all chapter 43 actions. Lee v.
Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 32 (2010). In
determining whether an agency met its obligation of affording an employee a
reasonable opportunity to demonstrate acceptable performance, relevant factors
include the nature of the duties and responsibilities of the employee’s position,
the performance deficiencies involved, and the amount of time given to the
employee to demonstrate acceptable performance. Id. Notably, an agency is not
required to provide an employee with any formal training as part of the
reasonable opportunity to improve period. Corbett v. Department of the Air
Force, 59 M.S.P.R. 288, 290 (1993).
6
On review, the appellant reasserts that the agency failed to give her
adequate training.2 PFR File, Tab 1 at 7-12. Among other things, she argues that
the agency provided minimal training, which was generally informal and
haphazard. Id. The administrative judge discussed this at length, in terms of
training the agency provided before the PIP, training the agency provided during
the PIP, and training the agency denied for reasons ranging from its expectations
due to the appellant’s prior experience and the appellant’s backlog of work. ID
at 7-12. She concluded that, despite arguments to the contrary, the agency proved
that it gave the appellant a reasonable opportunity to improve. ID at 12. We
discern no basis for disturbing the administrative judge’s conclusions.
It is evident that the agency overestimated the appellant’s abilities and
experience, initially, but it then took remedial action by increasing the appellant’s
training. E.g., IAF, Tab 14 at 40, 65, 70, 76-87, Tab 19 at 108-10, Tab 20
at 97-99. Most notably, the agency assigned the appellant a trainer in January
2018, and he retained that role for most of the calendar year, including the PIP
period that ended in November 2018. E.g., IAF, Tab 20 at 97-99. Throughout
that time, this trainer provided extensive instruction on various aspects of the
appellant’s job. Id. By his own explanation, the trainer taught the appellant
“every activity that is necessary for the successful performance of her job as a
[Basic Contract Administrator], each activity multiple times.” Id. at 97.
Specific to the PIP period, the administrative judge recognized that the
appellant’s supervisor and her trainer were available throughout for assistance
and feedback, with the exception of a period in which the trainer was absent. ID
at 11-12. On that point, the appellant argues that she avoided seeking assistance
from her supervisor during the PIP because she worried that the supervisor would
2 Relatedly, the appellant further argues that the agency should not have placed her on
the review period that preceded her PIP. PFR File, Tab 1 at 12-14. She asserts, for
example, that it was too soon in her time with the agency to identify performance
deficiencies and too soon after she received a new supervisor. Id. To the extent that it
is relevant, the appellant may present this argument during the remand proceedings.
See infra p. 10.
7
have used her requests for assistance to support the eventual removal action. PFR
File, Tab 1 at 15. However, the appellant’s failure to avail herself of the
assistance offered was at her own peril. See Goodwin v. Department of the Air
Force, 75 M.S.P.R. 204, 208-09 (1997) (an agency afforded the appellant a
reasonable opportunity to improve where it gave her a detailed PIP letter and
written feedback during the PIP, and her supervisor made herself available to
provide assistance, but the appellant did not request further assistance).
The appellant’s performance remained unacceptable.
Failure to demonstrate acceptable performance under a single critical
element will support a removal in a chapter 43 action such as this. Towne,
120 M.S.P.R. 239, ¶ 29 n.12. Nevertheless, the administrative judge addressed
all of the critical elements underlying the appellant’s removal, finding that the
agency proved each by substantial evidence. ID at 12-20. On review, the
appellant also presents arguments for them all: processing post award requests,
PFR File, Tab 1 at 16-17, completing CPARS assessments, id. at 18-19,
exercising contract options, id. at 19-20, completing annual reviews, id. at 20-21,
and completing delivery order sourcing, id. at 21-22. For the sake of brevity, we
will only address a couple.
We will first consider the critical element mentioned above, completing
CPARS assessments. Supra p. 5. Again, to be fully successful, the appellant’s
performance plan required that she submit draft CPARS assessments to her
supervisor in the CPAR system within 35 days of the end of the contract
performance period. E.g., IAF, Tab 14 at 61, 66, 73. The performance plan
further provided that her performance would be deemed unacceptable if, among
other things, she failed to meet expectations for quality of work or missed
targeted deadlines. Id. at 61.
The agency alleged that the appellant’s performance remained unacceptable
in this critical element because she had three CPARS assessments due during the
PIP period, but two were turned in late and all three were of low quality,
8
requiring numerous corrections. Id. at 32, 46-48. The administrative judge relied
on documentary evidence and hearing testimony to find that the agency proved
the appellant’s unacceptable performance in this element. ID at 14-15.
On review, the appellant reasserts that one of the late CPARS assessments,
Breton-0192, was not her responsibility because another individual—the
Contracting Officer—took over the assignment during her absence. PFR File,
Tab 1 at 18.3 We are not persuaded. The only evidence the appellant directed us
to on review is not supportive. See Weaver v. Department of the Navy ,
2 M.S.P.R. 129, 133 (1980) (before the Board will undertake a complete review
of the record, the petitioning party must explain why the challenged factual
determination is incorrect, and identify the specific evidence in the record which
demonstrates the error). Instead, the cited evidence indicates that the
Breton-0192 CPARS assessment was due on September 22, 2018, but the
appellant missed that deadline. IAF, Tab 14 at 47-48. Although the Contracting
Officer eventually took over the assignment, the evidence the appellant pointed us
to suggests that he did not do so until weeks after the appellant’s missed deadline.
Id.
For the other CPARS assessment that the agency deemed untimely,
Evans-0085, the appellant argues that documented comments from the
Contracting Officer “clearly indicates it was completed.” PFR File, Tab 1 at 18.
Yet the only evidence to which the appellant has referred reflects nothing of the
sort. Id.; IAF, Tab 14 at 47. Instead, that evidence consists of comments, dated a
week after the Evans-0085 due date, indicating that the assignment “still needs
more work.” IAF, Tab 14 at 47. Other evidence, including bi-weekly feedback
notes from when the Evans-0085 CPARS assessment was due, specifically
3 In making this argument, the appellant cites “Tab 41, p.48” and “Tab 41, p. 47 of
340.” PFR File, Tab 1 at 18. This appears to be a typographical error, where the
appellant inverted the numerals of the tab number. Pages 47 and 48 of tab 14 discuss
the matter at hand, while tab 41 is an electronic recording of hearing testimony without
page numbers. Compare IAF, Tab 14 at 47-48, with IAF, Tab 41.
9
describe the appellant as having missed the October 23, 2018 deadline for
submission. Id. at 48, 336. Under these circumstances, we need not address the
appellant’s other argument about her CPARS assessments, regarding their quality.
PFR File, Tab 1 at 18-19. Because the appellant failed to complete two of her
three CPARS assessments within the designated timeline for doing so, as required
by the applicable performance standard, it is apparent that the appellant exhibited
unacceptable performance in this critical element.
We will next discuss one other critical element: completing delivery order
sourcing. To be fully successful, this element required that the appellant
accurately source delivery orders within an average of 5-7 calendar days of their
receipt. E.g., IAF, Tab 14 at 63, 69, 75.
The agency alleged that the appellant’s performance during the PIP period
remained unacceptable in this element because she was untimely for at least 17
out of 21 orders, with the majority taking the appellant more than 2 weeks.4 Id.
at 33-34, 43-44, 54-57. The administrative judge relied upon the agency’s
documentation, hearing testimony, and the appellant’s admissions to find that the
agency proved this unacceptable performance. ID at 19.
On review, the appellant argues that the agency’s numbers “were
fabricated.” PFR File, Tab 1 at 21. She asserts that she timely completed “most
all” of the associated tasks for this critical element. Id. The appellant further
explained that these tasks were time consuming and it was inevitable that many
would be untimely. Id. at 21-22. However, she has once again failed to direct us
to any persuasive evidence that warrants us disturbing the administrative judge’s
conclusion. Instead, the appellant has merely referred to her own testimony,
4 We recognize that the agency’s documentation contains a numerical discrepancy.
Although the PIP summary and the proposal to remove the appellant describe the
appellant as failing 20 out of 24 tasks in this critical element during the PIP, IAF,
Tab 14 at 33-34, 43, an attached breakdown with the specific tasks assigned and their
status shows that the appellant failed 17 out of 21 tasks during the PIP, id. at 54-56.
The administrative judge relied on the latter, more detailed description, and we will as
well. ID at 19.
10
along with her response to the proposed removal, where she summarily stated that
the agency’s numbers were not accurate and her untimeliness on some tasks was
unavoidable. Id.; IAF, Tab 14 at 29-30. Such conclusory assertions do not
persuade us that the administrative judge erred in crediting the agency’s detailed
evidence of the appellant’s unacceptable performance in this critical element.
E.g., IAF, Tab 14 at 54-56, 338.
On remand, the agency must justify its PIP.
Although the appellant has identified no basis for us to disturb the
administrative judge’s findings regarding the agency proving the elements
described above, we must remand this appeal for the agency to prove one
additional element. During the pendency of the petition for review in this case,
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held in Santos,
990 F.3d at 1360-61, that in addition to the five elements of the agency’s case set
forth above, the agency must also justify the institution of a PIP by proving by
substantial evidence that the employee’s performance was unacceptable prior to
the PIP. The Federal Circuit’s decision in Santos applies to all pending cases,
including this one, regardless of when the events took place. Lee v. Department
of Veterans Affairs , 2022 MSPB 11, ¶ 16. Accordingly, we remand the appeal to
give the parties the opportunity to present argument and additional evidence on
whether the appellant’s performance during the period leading up to the PIP was
unacceptable in one or more critical elements. See id, ¶¶ 15-17. On remand, the
administrative judge shall accept argument and evidence on this issue, and shall
hold a supplemental hearing if appropriate. Id.,¶ 17.
The appellant failed to prove her claims of discrimination and EEO reprisal.
The administrative judge found that the appellant failed to meet her burden
of proof for claims of race discrimination, age discrimination, and EEO reprisal.
ID at 21-24. In reaching that conclusion, she considered whether any of those
prohibited considerations—race, age, or EEO activity—was a motivating factor in
11
the appellant’s removal. ID at 20-21 (citing Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶¶ 36-37, 41 (2015), overruled in part by Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 23-25).
Specific to the appellant’s discrimination claims, the administrative judge
found that the appellant’s alleged comparator, a younger white individual hired
around the same time as the appellant, was not similarly situated because of their
vast differences in experience. ID at 21-22. She explained that the appellant had
many years of Federal contracting experience, along with 2 relevant
certifications, but the comparator had neither. Id.; see Hooper v. Department of
the Interior, 120 M.S.P.R. 658, ¶ 6 (2014) (for employees to be deemed similarly
situated for purposes of an affirmative defense of discrimination based on
disparate treatment, all relevant aspects of the appellant’s employment situation
must be “nearly identical” to those of the comparator employee).
On review, the appellant effectively concedes that her comparator was not
similarly situated because of their differences in experience. PFR File, Tab 1
at 22-23. She nevertheless refers to this individual while arguing that the agency
should have provided her with more training in the period leading up to her
removal, and asserting that its failure to do so must have been motivated by the
appellant’s race and age. Id. We are not persuaded. Although the appellant has
speculated that race and age were motivating factors in the agency’s training
decisions and her eventual removal, she has failed to direct us to any evidence of
record in support of the same.
The appellant’s EEO reprisal claim fares no better. The administrative
judge recognized that while the proposing and deciding officials became aware of
the appellant’s EEO activity before both the PIP and the resulting removal, the
associated performance deficiencies began before the appellant’s EEO activity, as
did the agency’s efforts to remedy them. ID at 24. In the absence of anything
other than officials’ knowledge of the EEO activity, the administrative judge
found that the appellant failed to prove that her EEO activity was a motivating
12
factor in the removal action. Id. She later credited testimony from the proposing
and deciding officials, who indicated that their decisions were exclusively
motivated by the appellant’s performance. ID at 26. According to the
administrative judge, their testimony was direct, without hesitation, and
consistent with the extensive documentary record. Id.
On review, the appellant merely notes that it is unlikely a management
official would ever admit to retaliation. PFR File, Tab 1 at 23-24. That does not,
however, persuade us to reach a different conclusion than the administrative
judge regarding witness credibility or the appellant’s claim of EEO reprisal. See
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining
that the Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so).5
The appellant’s claim of retaliation for engaging in OIG activity is unavailing.
On review, the appellant alludes to her claim of reprisal for engaging in
protected OIG activity, but only to again assert that it was unlikely that the
proposing and deciding officials would admit to retaliation. PFR File, Tab 1
at 23-24. Although that assertion is not persuasive, we must recognize the proper
standard for this affirmative defense.
Under the Whistleblower Protection Enhancement Act of 2012 (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). Alarid v.
Department of the Army , 122 M.S.P.R. 600, ¶ 12 (2015). Relevant to this appeal,
section 2302(b)(9)(C) prohibits retaliation for “cooperating with or disclosing
5 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.
13
information to the Inspector General . . . of an agency.” 5 U.S.C.
§ 2302(b)(9)(C).
To prevail on a claim such as this, an appellant must first demonstrate by
preponderant evidence that she engaged in protected activity. Alarid,
122 M.S.P.R. 600, ¶ 13. Next, she must establish that the protected activity was a
contributing factor in the challenged personnel action. Id. One way of proving
that an appellant’s prior protected activity was a contributing factor in a
personnel action is the “knowledge/timing” test. Id. Under this test, an appellant
can establish that her prior protected activity was a contributing factor in the
challenged action by showing that the deciding official knew of the protected
activity and took the personnel action within a period of time such that a
reasonable person could conclude that the protected activity was a contributing
factor in the action. Id.
If the appellant makes both of these showings by preponderant evidence,
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 appellant’s protected
activity. Id., ¶ 14. In determining whether the agency has met this burden, 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 involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who did not engage in such protected activity, but who are otherwise
similarly situated. Id. (citing Carr v. Social Security Administration , 185 F.3d
1318, 1323 (Fed. Cir. 1999)). The Board does not view these factors as discrete
elements, each of which the agency must prove by clear and convincing evidence,
but rather weighs these factors together to determine whether the evidence is
clear and convincing as a whole. Id. In assessing whether the agency has met its
burden by clear and convincing evidence, the Board must consider all the
14
pertinent evidence in the record, and it must not exclude or ignore countervailing
evidence by only looking at the evidence that supports the agency’s position. Id.
With her initial pleading, the appellant alleged that her removal was
motivated by a complaint she filed with the agency’s OIG in October 2018,
during the middle of her PIP. IAF, Tab 1 at 3. The administrative judge
responded by informing the appellant of the aforementioned framework for
analyzing that claim. IAF, Tab 3 at 1, 10. Both parties responded accordingly.
E.g., IAF, Tab 6 at 9-11, Tab 19 at 10-12. Yet the administrative judge recited
and applied a different standard in the initial decision. ID at 25 (citing, e.g.,
Warren v. Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir. 1986)). In
this regard, the administrative judge erred. See Elder v. Department of the Air
Force, 124 M.S.P.R. 12, ¶ 39 (2016) (finding that an administrative judge
erroneously applied the Warren standard to a claim of reprisal for activity
protected by section 2302(b)(9)(A)(i), and modifying the initial decision to
instead apply the burden-shifting framework of 5 U.S.C. § 1221(e)).
Consequently, we will apply the correct standard—the standard the appellant
received notice of below. Compare Wynn v. U.S. Postal Service , 115 M.S.P.R.
146, ¶ 12 (2010) (remanding an appeal because the administrative judge
altogether failed to provide an appellant with notice of the burdens and elements
of proof for his affirmative defenses), overruled on other grounds by Thurman v.
U.S. Postal Service , 2022 MSPB 21, with Mahaffey v. Department of Agriculture ,
105 M.S.P.R. 347, ¶ 11 (2007) (finding that remand was unnecessary to address
an appellant’s affirmative defense because the agency’s submissions put the
appellant on notice of the correct burden and elements of proof below).
The agency does not dispute that the appellant filed a complaint with its
OIG on or around October 8, 2018, and that activity is protected under
section 2302(b)(9)(C). IAF, Tab 6 at 19, Tab 19 at 10, 14. It is also evident that
the proposing and deciding officials knew of the appellant’s protected activity
prior to her February 2019 removal, as reflected by their sworn statements to the
15
OIG investigator and the OIG investigator’s final report, which indicates that she
interviewed each. IAF, Tab 19 at 14-15, Tab 20 at 85-90. Under these
circumstances, we find that the appellant satisfied the knowledge/timing test and
met her burden of proving that her activity protected under section 2302(b)(9)(C)
was a contributing factor in her removal. Consequently, the burden shifts to the
agency. Supra pp. 13-14.
For the first Carr factor, we find that the agency’s evidence in support of
its personnel action was quite strong. Among other things, the agency
highlighted the appellant’s performance deficiencies and warned of possible
repercussions in the May 2018 denial of her telework request, the July 2018
counseling letter, and the August 2018 PIP letter. IAF, Tab 14 at 64-75, 96-97.
Subsequent documentation, dated after the start of the PIP, but still before the
appellant’s OIG complaint, shows that her performance deficiencies persisted.
E.g., id. at 285, 288-89, 294-96, 300-03, 323. For example, a September 2018
PIP feedback report shows that the appellant continued to miss deadlines, such as
the Breton-0192 CPARS assessment we discussed above. Id. at 300-03;
supra p.8. Documentation dated after the appellant’s OIG complaint reflects
more of the same; she continually failed to meet the agency’s performance
standards across numerous critical elements. E.g., id. at 31-38, 40-44, 315,
317-19, 336-38. Although the appellant has consistently disputed the agency’s
allegations of unacceptable performance, blaming a lack of training and
indicating that the agency’s allegations were altogether fabricated, she has
presented little more than bare assertions. E.g., id. at 25-30. We conclude that
the agency presented very strong evidence regarding the appellant’s unacceptable
performance during the PIP, which was the basis for her removal.
Turning to the second Carr factor, the underlying complaint accused
management of improprieties ranging from a failure to provide her with adequate
training to demeaning comments. E.g., IAF, Tab 19 at 14-31. In part, her
allegations were directed at “management staff,” and reflect poorly on numerous
16
officials in and around her chain of command regarding their capacity as
managers and employees. E.g., id. at 24; see Chavez v. Department of Veterans
Affairs, 120 M.S.P.R. 285, ¶ 33 (2013). More importantly, many of her
allegations directly implicated the proposing official, with some also implicating
the deciding official to a lesser extent. IAF, Tab 19 at 24-29. The OIG
investigator deemed the appellant’s allegations “unfounded,” while also
describing her “toxic work environment” as one that “she had created for
herself.” Id. at 14. The associated report is dated a month before the deciding
official removed the appellant, but it is not apparent to us whether this report was
disseminated to relevant parties during that span of time. Compare IAF, Tab 14
at 21 (removal decision), with IAF, Tab 19 at 14 (OIG report). Either way, the
proposing and deciding officials had a notable motive to retaliate.
For the third Carr factor, we were unable to locate any arguments or
evidence from the agency that it takes similar actions against employees who did
not engage in such protected activity, but who are otherwise similarly situated.
E.g., IAF, Tab 19 at 11-12. Accordingly, we find that the third Carr factor, if
anything, “tends to cut slightly against the [agency].” Miller v. Department of
Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016).
We are cognizant of the requirement that we consider all of the pertinent
evidence, including evidence that fairly detracts from our ultimate conclusion.
Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012).
Nevertheless, we find that the agency met its burden of proving, by clear and
convincing evidence, that it would have taken the same personnel action—
removal—in the absence of the appellant’s protected activity. Simply put, it is
apparent that the agency was preparing for the appellant’s possible removal for
unacceptable performance across numerous critical elements before she engaged
in the activity protected under section 2302(b)(9)(C). Her subsequent removal,
after the protected activity, was the natural consequence of continued
17
performance deficiencies that had, by that time, persisted for many months,
despite various warnings and interventions.
Conclusion
In conclusion, the arguments the appellant presented on review are
unavailing. We must nevertheless remand this appeal in light of Santos. On
remand, the administrative judge shall accept argument and evidence on this
issue, and shall hold a supplemental hearing if appropriate. Lee, 2022 MSPB 11,
¶ 17. The administrative judge shall then issue a new initial decision consistent
with Santos. See id. If the agency makes the additional showing required under
Santos on remand, the administrative judge may incorporate her prior findings in
the remand initial decision concerning the other elements of the agency’s case
and her prior findings on race discrimination, age discrimination, and EEO
reprisal. See id. The administrative judge may also incorporate our findings
concerning reprisal for filing a complaint with the agency’s OIG in the remand
initial decision. However, regardless of whether the agency meets its burden, if
the argument or evidence on remand regarding the appellant’s pre-PIP
performance affects the appellant’s affirmative defenses, the administrative judge
should address such argument or evidence in the remand initial decision. See
Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980)
(explaining that an initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests).
18
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. | Baisden_Clara_M_CH-0432-19-0219-I-1__Remand_Order.pdf | 2024-04-04 | CLARA M. BAISDEN v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0432-19-0219-I-1, April 4, 2024 | CH-0432-19-0219-I-1 | NP |
1,888 | https://www.mspb.gov/decisions/nonprecedential/Lisle_LoreenDC-0752-21-0329-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOREEN LISLE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-21-0329-I-1
DATE: April 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Loreen Lisle , Lorton, Virginia, pro se.
Heather Herbert , Jack W. Rickert , and Nieva M. S. Brock , Springfield,
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
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant references various alleged conclusory
errors such as asserting that the initial decision was “made without the required
documentations and evidence,” “the laws were erroneously applied,” and the
government attorney “wrongfully influenced a fair and just process.” Petition for
Review (PFR) File, Tab 1 at 2-3. We find such conclusory allegations
insufficient to meet the Board’s criteria for review.2 See 5 C.F.R. § 1201.115.
The appellant also reargues the facts of her case and reiterates her claims of
discrimination. PFR File, Tab 1 at 5-14. For example, she asserts that she was
harassed and forced to endure a hostile work environment for over 5 years, she
was under duress and medically unable to perform the fiduciary duties of a
contracting officer due to the hostile work environment, the agency discriminated
and retaliated against her and denied her a reasonable accommodation in the form
2 The appellant also asserts that she “was directed to keep her comments at a high level”
and “instructed not to use any supporting documentations or notes.” PFR File, Tab 1
at 2. We find that such conclusory assertions fail to establish an abuse of discretion by
the administrative judge because the appellant has not shown that the administrative
judge disallowed any relevant testimony. See Parker v. Department of Veterans Affairs ,
122 M.S.P.R. 353, ¶ 21 (2015) (recognizing that an administrative judge has wide
discretion to control the proceedings, including the authority to exclude testimony she
believes would be irrelevant, immaterial, or unduly repetitious and 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 that relevant
evidence, which could have affected the outcome, was disallowed).2
of a reassignment to a different position, denied her request to participate in the
advantage fitness program that could have helped her alleviate stress, issued her
unwarranted and unjust evaluations, and treated Caucasian employees more
favorably regarding assignments, pay, and promotions.3 Id. at 5-6, 8-10.
However, the administrative judge properly considered and rejected such claims
in her analysis of the appellant’s affirmative defenses, and the appellant’s mere
disagreement does not provide a basis for reversal.4 Initial Appeal File, Tab 100,
Initial Decision (ID) at 39-49; 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
and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The administrative judge also considered and rejected the appellant’s
additional assertions on review. The appellant reiterates her argument that the
agency improperly required her to accept program management responsibilities,
contracting officer responsibilities, and property management responsibilities and
that such directives amounted to a conflict of interest. PFR File, Tab 1 at 9.
However, the administrative judge considered and rejected the appellant’s
3 The appellant also summarizes her participation in the equal employment opportunity
(EEO) process. PFR File, Tab 1 at 10-13. However, the administrative judge found
that the appellant established that she engaged in EEO activity beginning in 2016, and
including complaints throughout 2018, 2019, and 2020. Initial Appeal File, Tab 100,
Initial Decision (ID) at 41.
4 After the issuance of the initial decision, the Board issued Pridgen v. Office of
Management and Budget , 2022 MSPB 31, in which it clarified the burdens of proof that
apply to claims of discrimination and reprisal. We have considered whether the
holdings in Pridgen affect the administrative judge’s analysis of the appellant’s
affirmative defenses and conclude that they do not. In Pridgen, the Board held that
claims of reprisal for engaging in disability-based EEO activity are subject to the
“but-for” causation standard. Pridgen, 2022 MSPB 31, ¶¶ 44-47. To the extent the
appellant alleged disability-based EEO reprisal, any error by the administrative judge in
applying a motivating factor causation standard does not affect the outcome because the
administrative judge found that the appellant failed to meet her burden under the lower
motivating factor causation standard. ID at 41-44. 3
argument finding that she failed to provide any credible evidence supporting her
assertion. ID at 35, 37-38. Regarding the appellant’s assertion that she was
denied government equipment to perform her job duties during the pandemic,
PFR File, Tab 1 at 5, the administrative judge acknowledged that the appellant
had computer issues and access issues as a result of the pandemic that prevented
her from performing some job duties, but found that the appellant failed to offer
any explanation concerning her failure to perform the same tasks in the year prior
to the pandemic, ID at 37. Regarding the appellant’s assertion that she was
required to take classes that were not required for the contracting specialty, PFR
File, Tab 1 at 12, the administrative judge credited testimony of the appellant’s
supervisor that the human trafficking course was required for the appellant as
well as a broad range of contracting professionals at her level, ID at 36. Finally,
to the extent the appellant asserts that her supervisor was not qualified to hold a
supervisory contracting position, and thus, his actions against her were “null and
void,” PFR File, Tab 1 at 6, the administrative judge found that the appellant
grossly misrepresented her supervisor’s position and that, although her supervisor
was not a warranted contract officer, he had extensive experience with the
agency’s contracting process and knowledge of the relevant regulations, ID at 34.
Regardless, the administrative judge also found that there was nothing improper
about the decision to require the appellant to obtain her warrant or to assign her
to be the project manager and contracting officer’s representative over certain
contracts. ID at 26, 37. Accordingly, the appellant’s assertions on review, which
were raised below and properly addressed by the administrative judge, do not
provide a basis for reversal of the initial decision. See Crosby, 74 M.S.P.R.
at 105-06; Broughton, 33 M.S.P.R. at 359.
With her petition, the appellant submitted hundreds of documents and
emails, some of which were part of the record below. PFR File, Tab 1 at 15-166.
We have not considered such documents because, despite her conclusory
assertion, the appellant has not shown that they are new and material. PFR File,4
Tab 1 at 2; see 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). Evidence that is already a part of the record is not new. See
Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980). The remaining
documents largely predate the close of the record below, and the appellant has not
shown that the information contained in such documents was unavailable before
the record closed despite her due diligence. See, e.g., McPherson v. Department
of the Treasury, 104 M.S.P.R. 547, ¶ 14 (2007). Moreover , the appellant has not
shown that the documents are material because she has not explained their
relevance or how they establish any errors in the initial decision. See Keefer v.
Department of Agriculture , 92 M.S.P.R. 476, ¶ 18 n.2 (2002) (recognizing that it
is not the Board’s obligation to pore through the record to construe and make
sense of allegations set forth at various parts of a voluminous case file; an
appellant is required to articulate claims with reasonable clarity and precision or
risks being found to have failed to meet her burden). 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 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
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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 petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Lisle_LoreenDC-0752-21-0329-I-1__Final_Order.pdf | 2024-04-03 | LOREEN LISLE v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-21-0329-I-1, April 3, 2024 | DC-0752-21-0329-I-1 | NP |
1,889 | https://www.mspb.gov/decisions/nonprecedential/Joseph_Rafael_A_PH-0841-22-0032-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAFAEL A. JOSEPH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0841-22-0032-I-1
DATE: April 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Rafael A. Joseph , Philadelphia, Pennsylvania, 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
found without holding a hearing that he was not entitled to an annuity under the
Federal Employees’ Retirement System due to the prior refund of his retirement
deductions. For the reasons discussed below, we GRANT the appellant’s petition
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 review, VACATE the initial decision , and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
On October 31, 2011, after almost 30 years of Federal service, the appellant
resigned from his employment with the United States Postal Service. Initial
Appeal File (IAF), Tab 1 at 7; Joseph v. Office of Personnel Management , MSPB
Docket No. PH-0842-21-0117-I-1, Initial Appeal File (0117 IAF), Tab 6 at 71,
75-80. The Office of Personnel Management (OPM) refunded the appellant’s
retirement deductions in August 1986, with a payment of $2,430.43, and in May
2012, with a payment of $11,554.49. IAF, Tab 6 at 5; 0117 IAF, Tab 6 at 80, 83,
94.
The appellant previously filed a Board appeal in March 2016, seeking
review of OPM’s refund of his retirement deductions. Joseph v. Office of
Personnel Management , MSPB Docket No. PH-0841-16-0228-I-1, Initial Appeal
File (0228 IAF), Tab 1 at 2, 8. He argued that OPM erred in finding him eligible
for a refund and in failing to provide information regarding the consequences of
receiving a refund on his retirement benefits. Id. at 8-9. OPM asserted that it had
not yet issued a reconsideration (or final) decision and moved to dismiss the
appeal for lack of Board jurisdiction. 0228 IAF, Tab 6 at 4. It indicated that,
once the appeal was dismissed, it would issue “a decision to the appellant about
his eligibility for a retirement benefit effective on his resignation date.” Id. An
administrative judge dismissed the appellant’s March 2016 appeal for lack of
Board jurisdiction because OPM had not yet issued a reconsideration decision.
0228 IAF, Tab 11, Initial Decision. The U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) affirmed that dismissal in June 2019 based, in part, on
OPM’s representation that it would issue a reconsideration decision on the2
appellant’s claims.2 Joseph v. Merit Systems Protection Board , 776 F. App’x 676
(Fed. Cir. 2019).
In November 2021, the appellant filed the instant appeal, again seeking
Board review of whether OPM should have refunded his retirement deductions
and if it provided him with proper information when it did so. IAF, Tab 1 at 1-4,
Tab 11 at 3-4. The appellant claimed OPM had failed to issue a final decision on
these matters. IAF, Tab 1. OPM filed a motion to dismiss the appeal, asserting
that it had issued an initial decision on January 28, 2019, advising the appellant
that he was not due any retirement benefits because it had previously refunded his
retirement deductions. IAF, Tab 6 at 4-5. It stated that “the appellant needs to
ensure that he has requested reconsideration . . . if he hasn’t already done so.” Id.
at 4. The appellant questioned whether he had received OPM’s January 28, 2019
initial decision. IAF, Tab 11 at 2.
The administrative judge scheduled a hearing. IAF, Tab 8. However, she
canceled the hearing after the appellant indicated that he would not call witnesses
or submit any additional evidence. IAF, Tab 9 at 1, Tab 10 at 1. The
administrative judge issued an initial decision stating, without explanation, that
the Board has jurisdiction over the appeal. IAF, Tab 12, Initial Decision (ID)
at 1. She affirmed OPM’s January 28, 2019 initial decision. ID at 1-2, 4-5. She
reasoned that the appellant was not eligible for an annuity because he lacked the
necessary years of service and had received a refund of his retirement deductions.
ID at 4-5.
The appellant has filed a petition for review with the Board. Petition for
Review (PFR) File, Tabs 1, 6. OPM has submitted a nonsubstantive response to
the petition for review.3 PFR File, Tab 4.
2 The appellant filed a petition for review of the administrative judge’s initial decision
with the Board. 0228 Petition for Review (0228 PFR) File, Tabs 1. However, he later
withdrew his petition. 0228 PFR File, Tabs 11, 13, 16.
3 With his petition for review, the appellant included a request that the Department of
Justice (DOJ) appear as an amicus curiae. PFR File, Tab 6 at 6-8. However, because3
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the Board has jurisdiction over this
appeal even though OPM has not issued a reconsideration decision.
In her initial decision, the administrative judge found that the Board has
jurisdiction over this appeal. ID at 1. The parties do not dispute the Board’s
jurisdiction on review, and we agree with her conclusion. PFR File, Tabs 4, 6.
However, because the administrative judge did not explain her jurisdictional
finding and also stated that the appellant had not requested a reconsideration
decision, we explain the basis of the Board’s jurisdiction here. ID at 5; see
Parrish v. Merit Systems Protection Board , 485 F.3d 1359, 1362 (Fed. Cir. 2007)
(“The Board has the authority, indeed the obligation, to determine its own
jurisdiction over a particular appeal.” (citation omitted)).
If OPM has not issued a reconsideration decision on an appellant’s
entitlement to a retirement benefit, the Board generally lacks jurisdiction over an
appeal of that matter. 5 U.S.C. § 8461(e)(1); Fletcher v. Office of Personnel
Management, 118 M.S.P.R. 632, ¶ 5 (2012); 5 C.F.R. § 841.308. However,
notwithstanding the absence of such a decision, the Board will take jurisdiction
over an appeal concerning a retirement matter in which OPM has refused or
improperly failed to issue a final decision. Okello v. Office of Personnel
Management, 120 M.S.P.R. 498, ¶ 14 (2014). The appellant argued below that he
was entitled to a reconsideration decision on the refund issues he raised here
because OPM was ordered to issue one. IAF, Tab 1 at 1, Tab 11 at 2.
It is undisputed that OPM has not issued a reconsideration decision. The
appellant first appealed OPM’s decision to refund his retirement deductions to the
Board in March 2016. 0228 IAF, Tab 1. He did not assert that he had applied for
a retirement annuity or contacted OPM to contest the refund prior to filing his
appeal. In fact, he took the position that OPM should have provided him notice
DOJ never appeared in this appeal, there is no amicus curiae brief for us to consider.
See 5 C.F.R. § 1201.34(e) (explaining the procedures for appearing as an amicus curiae
before the Board).4
of his reconsideration rights “at the time of his separation.” 0228 IAF, Tab 8
at 4. Within a month of the appellant filing his appeal, OPM filed a submission
stating that it had not issued a reconsideration decision and indicated that it
would issue a decision once the appeal was resolved. 0228 IAF, Tab 6 at 4. In
dismissing that appeal, the administrative judge stated he would “hold OPM to
that promise.” 0228 ID at 2.
Similarly, in its June 2019 decision on the appellant’s subsequent appeal to
the Federal Circuit, the court indicated that OPM had represented that “it w[ould]
be issuing a final decision on the merits.” Joseph, 776 F. App’x at 678 n.3.
Based on OPM’s representation, the Federal Circuit determined that OPM had not
refused or improperly failed to issue a reconsideration decision as contemplated
in Okello. Id. OPM asserted below that it issued an initial decision on January
28, 2019, for which the appellant had not requested reconsideration. When a
party takes a position in prior litigation on which it is successful, it is barred by
the doctrine of judicial estopped from taking the contrary position in subsequent
litigation. Bencomo v. Department of Homeland Security , 115 M.S.P.R. 621, ¶ 7
(2011) (citing New Hampshire v. Maine , 532 U.S. 742, 749 (2001) (stating the
same)), aff’d per curiam , 468 F. App’x 986 (Fed. Cir. 2012). OPM’s position in
the instant appeal that it issued an initial decision in January 2019, and that it
would not issue a reconsideration decision until the appellant requested one, is
contrary to its previous representation to the Federal Circuit, as of June 2019, that
it would issue a reconsideration decision. Compare IAF, Tab 6 at 4, with Joseph,
776 F. App’x at 678 n.3. Thus, we are not persuaded that OPM has met its
obligations to the appellant solely by issuing an initial decision that advised him
of his right to request reconsideration.
Further, the appellant apparently raised the refund matter in a February
2021 appeal from OPM’s determination that he untimely filed an application for a
disability retirement annuity. 0117 IAF, Tab 1 at 3, Tab 14, Initial Decision
(0117 ID) at 1. The administrative judge in that case affirmed OPM’s timeliness5
determination. 0117 ID at 1, 6. However, she warned, “If OPM does not issue a
reconsideration [decision] on the refund of contributions issue, or determine that
the appellant is entitled to an annuity,” its failure to do so “could confer Board
jurisdiction over the appeal.” 0117 ID at 5.
OPM’s repeated failure to issue a reconsideration decision on the
appellant’s refunds since March 2016, i.e., for over 6 years and through the
course of 2 appeals in which the appellant repeatedly raised the matter, is an
improper failure to issue a final decision. E.g., Okello, 120 M.S.P.R. 498, ¶ 15
(finding Board jurisdiction when OPM failed to issue a reconsideration decision
after an appellant diligently sought one for 6 years, and observing that OPM had
disregarded a prior promise to issue a new decision); Easter v. Office of
Personnel Management , 102 M.S.P.R. 568, ¶ 8 (2006) (concluding the Board had
jurisdiction when OPM did not acknowledge or issue an initial decision on a
disability retirement application for over 18 months, and gave no explanation for
its failure to do so). Its failure also contradicts its prior successful
representations that the Board did not have jurisdiction under Okello because it
intended to issue such a decision. 0228 IAF, Tab 6 at 4; 0228 ID at 2; 0117 IAF,
Tab 10 at 2; 0117 ID at 5; Joseph, 776 F. App’x at 678 n.3.
As to the January 28, 2019 initial decision it provided below, OPM did not
submit any evidence that it sent that decision to the appellant.4 Rather, in an
unsworn statement, the agency’s representative stated that the unsigned letter,
which does not contain author’s name, “was sent to the appellant.” IAF, Tab 6
at 4-7. This assertion is not evidence and does not prove the decision was mailed.
See Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995)
(explaining that the statements of a party’s representative in a pleading generally
do not constitute evidence); Jordan v. Department of the Treasury , 64 M.S.P.R.
242, 244-45 (1994) (indicating that the mere statement of an appellant’s
4 It is also worth noting that the initial decision does not appear to address the issues
raised by the appellant regarding whether he should have received a refund, and if OPM
provided him with the proper information when doing so. IAF, Tab 1 at 2-3.6
representative that a petition for review was mailed on a date prior to the deadline
for doing so, without any specific details concerning such mailing, did not
establish that it was placed in the mail stream on the claimed date). The appellant
suggested he did not receive the initial decision. IAF, Tab 11 at 2. Regardless of
the appellant’s receipt of this decision, for the reasons discussed above we find
that OPM conduct here amounts to an improper failure to issue a reconsideration
decision. Therefore, we agree with the administrative judge’s determination that
the Board has jurisdiction over the appeal.
We remand this appeal for the appellant to receive his requested hearing on the
merits.
On review, the appellant reasserts his arguments that OPM acted
improperly in refunding his retirement deduction. IAF, Tab 11; PFR File, Tab 6
at 2-5. For example, he asserts that OPM wrongfully refunded his deductions in
2012 despite his alleged eligibility for retirement under a voluntary early
retirement authority in 2009 or 2010. IAF, Tab 11 at 3; PFR File, Tab 6 at 4. We
find that this case must be remanded for a new determination on the merits.
The administrative judge apparently determined that the appellant was
requesting a hearing because she scheduled one. IAF, Tab 8. Although the
record does not contain an affirmative request for a hearing, we discern no basis
to disturb this determination. See generally Smith v. Department of the Army ,
3 M.S.P.R. 556 (1980) (stating that failure to definitively ascertain whether an
appellant desired a hearing was an effective denial of his hearing right). It is
consistent with the appellant’s request for a hearing in his March 2016 appeal.
0228 IAF, Tab 1 at 3. Further, in his prehearing submission in the instant appeal,
the appellant confirmed his desire for a hearing by expressing his intent to appear
at the scheduled hearing, albeit without witnesses or additional evidence, and by
including a quote reflecting the importance of courts in ensuring equal treatment.
IAF, Tab 9 at 1, 3; see Smith 3 M.S.P.R. at 74 (interpreting an appellant’s7
statement in his appeal that he was prepared to present his evidence orally as an
indication that he anticipated a hearing).
A party appealing an OPM retirement determination is entitled to receive a
hearing regarding his appeal regardless of whether he would prevail on the merits
based on the undisputed facts. Gowan-Clark v. Office of Personnel Management ,
84 M.S.P.R. 116, ¶ 5 (1999). We find that the administrative judge erred in
finding the appellant’s receipt of refunds for his retirement deductions voided his
right to an annuity without holding the appellant’s requested hearing. Further,
her holding does not appear to address the actual issues raised by the appellant as
to whether OPM erred in refunding the deductions and provided proper
information when doing so.5 PFR File, Tab 6 at 3-4. On remand, the
administrative judge should hold a hearing on the merits of the appellant’s claims.
Regarding any hearing, the appellant stated below that he did not intend to call
“any witnesses or submit any additional evidence because OPM has already
shown that this agency will not respond to court orders to make decisions.” IAF,
Tab 9 at 1. Notwithstanding that statement, it is not clear to us that the appellant
did not intend to testify on his own behalf. On remand, the administrative judge
should permit him to do so if he so wishes.
5 At one point in his petition for review, the appellant argues that he was claiming a
“constructive dismissal.” PFR File, Tab 6 at 6. In connection with this claim, he
argues that the Postal Service management failed to stop him from being mistreated by
his coworkers. Id.; see Staats v. U.S. Postal Service , 99 F.3d 1120, 1123-24 (Fed. Cir.
1996) (explaining that an employee may rebut the presumption that his resignation was
involuntary based on the narrow doctrine of coercive involuntariness). If he so desires,
the appellant may file a separate appeal from this alleged agency action with the
regional office. We make no findings here regarding the Board’s jurisdiction over, or
the timeliness of, such an appeal.8
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.9 | Joseph_Rafael_A_PH-0841-22-0032-I-1__Remand_Order.pdf | 2024-04-03 | RAFAEL A. JOSEPH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0841-22-0032-I-1, April 3, 2024 | PH-0841-22-0032-I-1 | NP |
1,890 | https://www.mspb.gov/decisions/nonprecedential/Edwards_Natalie_M_DC-844E-21-0191-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATALIE EDWARDS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-21-0191-I-1
DATE: April 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs and Shaun Yancey , Atlanta, Georgia, for the
appellant.
Jo Bell , 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 issued by the Office of Personnel
Management (OPM) dismissing, as untimely filed, the appellant’s request for
reconsideration of the denial of her application for a disability retirement annuity
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).
under the Federal Employees’ Retirement System. On petition for review, the
appellant argues that her request for reconsideration to the agency was timely, but
if the Board determines that it was untimely then she qualifies for an extension of
the time limit pursuant to 5 C.F.R. § 841.306(d)(2). Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On review, the appellant argues that she faxed her reconsideration request
to OPM on the date OPM should have received it, thus making her request timely.
Petition for Review (PFR) File, Tab 1 at 4, 9. She attaches a fax receipt
reflecting that a two-page document was successfully faxed to OPM on
August 24, 2020. Id. at 15. She also attaches her request for reconsideration and
a handwritten note from her to OPM stating that she had mailed in her
reconsideration request and was “now faxing the written request” to OPM. Id.
at 16-17; Initial Appeal File (IAF), Tab 9 at 5. After thoroughly searching the
record, we determine that she never raised this argument or provided the fax
receipt or her handwritten note below. E.g., IAF, Tab 1 at 10, 24, Tab 16 at 5-7. 2
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. Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). The fax receipt and
handwritten note predate the initial decision, and the appellant has not explained
why they were unavailable before the record closed below despite her due
diligence.2 PFR File, Tab 1 at 15-16; IAF, Tab 15 at 2. She argues that she
believed she had to mail a paper copy of the request for reconsideration to OPM.
PFR File, Tab 1 at 9. However, her claim of ignorance regarding the significance
of the fax receipt is contradicted by OPM’s initial decision, which advised her
that she could “mail or fax” her request and provided her with OPM’s fax
number. IAF, Tab 9 at 25. Thus, we decline to consider the appellant’s new
evidence and argument.
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
2 The request for reconsideration was included in the record below and considered by
the administrative judge, and therefore is not new. IAF, Tab 9 at 20; PFR File, Tab 1
at 17; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (explaining
that evidence submitted to, and considered by, an administrative judge does not meet
the criteria of “new” evidence warranting review).
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Edwards_Natalie_M_DC-844E-21-0191-I-1__Final_Order.pdf | 2024-04-03 | NATALIE EDWARDS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-21-0191-I-1, April 3, 2024 | DC-844E-21-0191-I-1 | NP |
1,891 | https://www.mspb.gov/decisions/nonprecedential/Jones_ElaineAT-0752-15-0236-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELAINE JONES,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-15-0236-C-1
DATE: April 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John R. Macon , Memphis, Tennessee, for the appellant.
Cynthia R. Allen , Memphis, Tennessee, 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 compliance initial
decision, which denied her petition for enforcement of the Board’s 2017 final
decision that reversed the agency’s enforced leave action and ordered the agency
to pay her back pay, interest, and other benefits. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the appellant
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
compliance 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).
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 | Jones_ElaineAT-0752-15-0236-C-1__Final_Order.pdf | 2024-04-03 | ELAINE JONES v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-15-0236-C-1, April 3, 2024 | AT-0752-15-0236-C-1 | NP |
1,892 | https://www.mspb.gov/decisions/nonprecedential/Henninger_JohnDA-0752-19-0039-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN HENNINGER,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
DA-0752-19-0039-I-1
DATE: April 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Henninger , Cedar Creek, Texas, pro se.
Kristina T. Brooks , Esquire, Dallas, 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 his appeal of his August 18, 2015 termination from his position as a
GS-9 Veterans’ Employment Representative as barred by the doctrine of
collateral estoppel. On petition for review, the appellant argues that he did not
previously litigate the same jurisdictional issue and he did not have a full and fair
opportunity to litigate the issue. 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 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 | Henninger_JohnDA-0752-19-0039-I-1_Final_Order.pdf | 2024-04-03 | JOHN HENNINGER v. DEPARTMENT OF LABOR, MSPB Docket No. DA-0752-19-0039-I-1, April 3, 2024 | DA-0752-19-0039-I-1 | NP |
1,893 | https://www.mspb.gov/decisions/nonprecedential/Dove_MargieDC-0752-21-0608-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARGIE DOVE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-21-0608-I-1
DATE: April 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Montgomery, Jr. , Baltimore, Maryland, for the appellant.
Morgan Kinney , 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 the appeal for lack of jurisdiction. On petition for review, the
appellant argues, among other things, that the administrative judge improperly
applied the law governing constructive retirements and failed to properly consider
the facts. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
We agree with the administrative judge that the appellant failed to make a
nonfrivolous allegation that her retirement was coerced. In addition, we note
that, according to the record, the appellant made her decision to retire in
December 2019 as of October 10, 2019. Initial Appeal File, Tab 7 at 199. On
that date, the appellant sent an email to an agency retirement benefits
representative stating that she was “coming out in December” and asking, among
other retirement-related questions, what paperwork she would need to submit to
retire that December. Id. Nothing in the record indicates that the appellant ever
reconsidered her decision, or that subsequent events had any effect on her
decision. Therefore, none of the events comprising the appellant’s alleged
intolerable working conditions that occurred after October 10, 2019—namely, her
2019 third quarter performance rating on October 31, her November dispute with
her supervisor over leave usage, and her placement in an absence without leave
(AWOL) status in December—could have influenced her decision to retire.2
2 The appellant argues that the administrative judge erred by not applying cases such as
Schultz v. U.S. Navy , 810 F.2d 1133, 1137 (Fed. Cir. 1987), in which the U.S. Court of
Appeals for the Federal Circuit found that an employee’s resignation was coerced based2
Wilson v. Department of Health and Human Services , 5 M.S.P.R. 102, 106 (1981)
(concluding that an appellant’s receipt of a draft notice of proposed removal did
not coerce his decision to resign when he learned of the draft proposal notice
after he signed his resignation form).
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.
on a threatened adverse action, which the agency knew could not be substantiated.
Petition for Review File, Tab 1 at 8-9, 14-16. Here, although the agency had placed the
appellant in an AWOL status for a few days in December 2019 (after she had made the
decision to retire that month), there is no evidence that the agency proposed or
threatened an adverse action based on the AWOL. Thus, we discern no error in the
administrative judge’s application of the law.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Dove_MargieDC-0752-21-0608-I-1__Final_Order.pdf | 2024-04-03 | MARGIE DOVE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-21-0608-I-1, April 3, 2024 | DC-0752-21-0608-I-1 | NP |
1,894 | https://www.mspb.gov/decisions/nonprecedential/Bonds_LenoraCH-0752-18-0246-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LENORA BONDS,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
CH-0752-18-0246-I-1
DATE: April 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lenora Bonds , Chicago, Illinois, pro se.
Christopher C. Ligatti , 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 her removal appeal as settled. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The agency removed the appellant from her position as a GS-7 Equal
Opportunity Assistant. Initial Appeal File (IAF), Tab 1 at 8-12, Tab 6 at 32, 34,
36-40, 48-58, 106-16. She appealed her removal to the Board, and the parties
subsequently reached an agreement to settle the appeal. IAF, Tabs 1, 13. In a
May 3, 2018 initial decision, the administrative judge entered the settlement
agreement into the record for purposes of enforcement by the Board and
dismissed the appeal as settled. IAF, Tab 14, Initial Decision (ID) at 1-2. The
administrative judge notified the appellant that the initial decision would become
final on June 7, 2018, unless a petition for review was filed by that date. ID at 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On August 20, 2018, the appellant mailed to the Board a letter addressed to
both agency counsel and the Equal Employment Opportunity Commission
(EEOC); the body of the letter stated that the submission constituted a
“Conjunction Settlement Agreement for Relief.” Petition for Review (PFR) File,
Tab 1. Thereafter, the Clerk of the Board requested that the appellant provide
clarity as to whether her submission constituted a petition for review or whether
she was providing the Board with a copy of an EEOC filing. PFR File, Tab 2
at 1. The appellant confirmed that her August 20, 2018 submission constituted a
petition for review of the initial decision. PFR File, Tab 3 at 1. The Clerk of the
Board subsequently notified the appellant that her petition for review was
untimely and explained that she must file a motion asking the Board to accept the
petition for review as untimely and/or to waive the time limit for good cause.
PFR File, Tab 4 at 1-2. The appellant responded, asking the Board to excuse her
late filing because, among other things, she “did not receive the initial decision
within 5 days of its issuance.” PFR File, Tab 5 at 2. The agency has responded
in opposition to the appellant’s petition for review, arguing that it is untimely2
with no good cause shown and that the appellant has not shown a basis for
disturbing the initial decision. PFR File, Tab 6.
A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that she received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date she
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
was issued on May 3, 2018, and sent to the appellant via U.S. mail the same day.
IAF, Tab 15 at 1. The appellant avers that she did not receive the initial decision
within 5 days of its issuance; however, she fails to indicate the date on which she
did receive the initial decision. PFR File, Tab 5 at 2. Of note, the appellant’s
petition for review contains a handwritten notation of “5/30/18,” suggesting that
the appellant received the initial decision on or before May 30, 2018, in which
case, her petition for review was due no later than June 29, 2018. PFR File,
Tab 1 at 1; see 5 C.F.R. § 1201.114(e). As she did not file her petition for review
until August 20, 2018, her submission is untimely by at least 52 days. PFR File,
Tab 1 at 3.
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for an untimely filing, the appellant must show that 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).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether 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 that similarly shows
a causal relationship to her inability to file a timely petition. See Wyeroski v.
Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950 (Fed.
Cir. 2007). 3
In her motion for the Board to accept her untimely filed petition for review,
the appellant seemingly alleges that she provided various documents associated
with her petition to the agency in lieu of the Board. PFR File, Tab 5 at 2.
However, an appellant’s failure to follow explicit filing instructions generally
does not constitute good cause for an ensuing delay, and we find no indication
that the appellant mistakenly sent a petition to another entity within the time
limit. See Tress v. Office of Personnel Management , 109 M.S.P.R. 126, ¶ 5
(2008). Accordingly, the appellant’s assertion in this regard is unavailing.
In her petition for review, the appellant appears to allege that the agency
should pay her an additional $57,000 because she is ineligible for social security
benefits until next year. PFR File, Tab 1 at 1-2. To this end, she suggests that
she was unaware of her ineligibility for benefits until after she executed the
settlement agreement. Id. However, the appellant’s allegations in this regard
relate to information of which she was aware, or could have been aware, at the
time she entered into the agreement; her apparent misunderstanding does not
constitute good cause for her delay. See Ford v. Department of Veterans Affairs ,
99 M.S.P.R. 338, ¶ 7 (2005) (explaining that the appellant’s claimed
misunderstanding of, or dissatisfaction with, the terms of a settlement agreement
did not constitute good cause for her filing delay).
In a similar vein, the appellant also suggests that, at some point, the agency
offered her $20,000 instead of $2,000. PFR File, Tab 1 at 2. To the extent she
contends that the agency fraudulently induced her to sign the settlement
agreement based on this alleged offer, we note that the executed settlement
agreement clearly states that the appellant would receive a lump sum of
“two-thousand dollars ($2,000.00).” IAF, Tab 13 at 4. Additionally, she appears
to concede in her petition for review that the parties’ signed agreement did, in
fact, state $2,000. PFR File, Tab 1 at 2. This argument appears to be based on
information previously available to the appellant such that she could have timely
filed a petition for review on this basis. See Wilson v. General Services4
Administration, 15 M.S.P.R. 45, 47 (1983) (finding that the appellant had not
shown good cause for his untimeliness because, among other things, he failed to
show that the “new” information on which he relied was unavailable, despite due
diligence, before the record closed).
The appellant further contends that, during the pendency of her initial
appeal, agency counsel intimidated her. PFR File, Tab 1 at 1. However, as she
provides no explanation as to why she could not have timely raised such
allegations against counsel, the appellant again fails to show good cause for her
delay in filing. See Wilson, 15 M.S.P.R. at 47. The appellant has not alleged,
and we do not discern, any alternate basis for finding good cause for her untimely
filed petition for review. PFR File, Tabs 1, 3, 5.
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 dismissal of her removal appeal as settled.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
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. 6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Bonds_LenoraCH-0752-18-0246-I-1__Final_Order.pdf | 2024-04-03 | LENORA BONDS v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. CH-0752-18-0246-I-1, April 3, 2024 | CH-0752-18-0246-I-1 | NP |
1,895 | https://www.mspb.gov/decisions/nonprecedential/Zweede_Michelle_A_DC-0752-21-0370-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE A. ZWEEDE,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-0752-21-0370-I-1
DATE: April 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher R. Landrigan , Esquire, and Sara A. Buchholz , Esquire,
Washington, D.C., for the appellant.
Julie Nelson , Golden, Colorado, for the agency.
Kevin Sitler , Esquire, Albuquerque, New Mexico, for the agency.
Shannon L. Swaziek , Esquire, Menomonee Falls, 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
sustained the appellant’s 30-day suspension and reassignment based on the charge
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 “Appearance of Conflict of Interest.” 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 agency did not charge the appellant with violating 5 C.F.R. § 2635.502(a).
On petition for review, the appellant argues that the administrative judge
erred in finding that the agency was not required to prove that the appellant
violated the ethics regulation at 5 C.F.R. § 2635.502(a). Petition for Review
(PFR) File, Tab 1 at 8; Initial Appeal File (IAF), Tab 36, Initial Decision (ID)
at 6-7. The administrative judge instead applied the elements of an “Appearance
of Conflict of Interest” charge as established by our case law. ID at 7-8. We find
that the administrative judge correctly construed the agency’s charge: the agency
chose the charge of “Appearance of Conflict of Interest” without reference to the
violation of any specific statute, regulation, or rule. ID at 7; IAF, Tab 10 at 73.
The appellant accurately notes that the proposing official included a statement
that the appellant violated 5 C.F.R. § 2635.502(a) under Douglas1 factor 1, the
nature and seriousness of the offense, in her penalty analysis attached to the
proposal notice. PFR File, Tab 1 at 8; IAF, Tab 10 at 77. However, based on our
1 Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1981).2
well-established precedent, we find that the agency was only required to prove
the “Appearance of Conflict of Interest,” the label it affixed to the charge in the
proposal notice. IAF, Tab 10 at 73; see Alvarado v. Department of the Air Force ,
103 M.S.P.R. 1, ¶ 19 (2006), aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d,
490 F. App’x 932 (10th Cir. 2012) ; see also Diaz v. Department of the Army ,
56 M.S.P.R. 415, 418-20 (1993) (distinguishing between the actual charges and
the factual narratives outlining those charges in determining the elements of the
charges).
The administrative judge applied the correct standard for the agency’s charge.
The appellant also argues that 5 C.F.R. § 2635.502(a) creates objective
criteria that the Board should apply in evaluating whether an “Appearance of
Conflict of Interest” existed. PFR File, Tab 1 at 11-14. The administrative judge
correctly rejected this argument in the initial decision. ID at 6 n.6, 7 n.7. We
find no legal error in the administrative judge’s definition of “Appearance of
Conflict of Interest.” ID at 7-8 (citing Fontes v. Department of Transportation ,
51 M.S.P.R. 655, 663-64 (1991); Special Counsel v. Nichols , 36 M.S.P.R. 445,
455 (1988)).
The agency proved its charge.
We find no errors of law or erroneous findings of material fact in the
administrative judge’s conclusion that the agency proved its charge. ID at 6-18.
The appellant challenges the administrative judge’s decision not to credit her
claim that she believed that there was no actual or apparent conflict of interest.
PFR File, Tab 1 at 14; ID at 15. We observe no reason to disturb the credibility
determinations of the administrative judge in this case. See Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating that the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so).3
The agency did not violate the appellant’s due process rights.
Lastly, the appellant appears to be raising for the first time on review a due
process violation based on the vagueness of the agency’s charge. PFR File, Tab 1
at 9 n.1. She argues that, if violating 5 C.F.R. § 2635 was not the agency’s
charge, then the agency did not set forth a different charge of sufficient
specificity to satisfy due process requirements. Id. Because the appellant has not
shown that this argument is based on new and material evidence not previously
available despite the party’s due diligence, it is not a basis for disturbing the
initial decision. See Pridgen v. Office of Personnel Management and Budget ,
2022 MSPB 31, ¶ 34 n.10; Banks v. Department of the Air Force , 4 M.S.P.R. 268,
271 (1980). Moreover, the appellant has not established a due process violation.
The appellant’s detailed written response to the charge and specifications
indicated that she understood the agency’s charge. IAF, Tab 10 at 31-46, 73-74.
Although she argued that her relationship with her father was not a relationship
described under 5 C.F.R. § 2635.502(a), she also argued more broadly that “no
reasonable person” would have had a concern about her impartiality in the matters
described in the agency’s specifications. Id. at 39-40. Therefore, as the appellant
responded directly to the agency’s charge, we find no due process violation. See
Ingram v. Department of Defense , 118 M.S.P.R. 149, ¶ 7 (2012); Pinto v.
Department of Labor , 11 M.S.P.R. 422, 424 (1982) (determining that the charges
were sufficiently specific because the employee’s reply indicated that he
understood them).
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).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court7
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. 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 | Zweede_Michelle_A_DC-0752-21-0370-I-1__Final_Order.pdf | 2024-04-03 | MICHELLE A. ZWEEDE v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-21-0370-I-1, April 3, 2024 | DC-0752-21-0370-I-1 | NP |
1,896 | https://www.mspb.gov/decisions/nonprecedential/Tutt_Louis_M_DC-1221-22-0234-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOUIS M. TUTT,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-22-0234-W-1
DATE: April 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
L
uis M. Melendez , Esquire, Washington, D.C., for the appellant.
Joseph A. Fedorko , Esquire, Mary J. Bradley , 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 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 previously served as the Director of Audit Readiness for the
agency’s Office of the Assistant Secretary (Acquisition, Logistics, and
Technology) in Arlington, Virginia. Initial Appeal File (IAF), Tab 12 at 4, 47,
60. In October 2021, the appellant filed a whistleblower complaint with the
Office of Special Counsel (OSC), alleging that, between 2018 and 2021, the
agency took multiple personnel actions against him in retaliation for his
disclosures and activities. IAF, Tab 1 at 4; Petition for Review (PFR) File, Tab 5
at 35-37. On December 13, 2021, OSC issued two letters notifying him that it
had closed its investigation into his claims and that he could file an appeal with
the Board. IAF, Tab 12 at 11 -14; PFR File, Tab 5 at 48. The appellant filed the
instant appeal, disagreeing with OSC’s decision to close its investigation. IAF,
Tab 1 at 3, 8-9. He requested a hearing. Id. at 2.
The administrative judge notified the appellant of his jurisdictional burden
and ordered him to file evidence and argument on the jurisdictional issue.
IAF, Tab 11. In response, the appellant submitted a sworn statement along with
supporting documentation, alleging that he made the following protected
disclosures and engaged in the following protected activities: (1) he reported
contractor fraud to the Deputy Assistant Secretary of the Army (Plans, Programs,
Resources) (Deputy Assistant) and the agency’s Criminal Investigation Division
(CID); (2) he filed and pursued a U.S. Court of Appeals for the Fourth Circuit
(Fourth Circuit) case against the agency; and (3) he participated as a witness in an
equal employment opportunity (EEO) complaint in support of his coworker.
IAF, Tab 12 at 3, 5, 7-8, 11, 23-26, 47 -50, 60-63, 80. The appellant alleged that,
in retaliation for his protected disclosures and activities, the agency initiated
an Army Regulation (AR) 15-6 investigation against him, placed him on a
temporary detail, then permanently reassigned him, and eventually proposed his
removal. Id. at 4-8. The appellant resigned on October 28, 2021. Id. at 13;
PFR File, Tab 5 at 48. 2
After the record closed on jurisdiction, 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 the appellant failed to exhaust some of his
disclosures and activities before OSC, and that the appellant failed to make a
nonfrivolous allegation that any of his remaining disclosures and activities were
protected. ID at 7-8.
The appellant has filed a petition for review. PFR File, Tab 5. The agency
has filed a response, and the appellant has replied. PFR File, Tabs 8, 11. We
find that the appellant established jurisdiction over his IRA appeal and remand
this appeal to the regional office for a hearing on the merits.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he made a 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 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). McCray v. Department of the Army , 2023 MSPB 10, ¶ 11. Any doubt
or ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of finding jurisdiction. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 6. In cases involving multiple
alleged protected disclosures or activities and multiple alleged personnel actions,
the Board has jurisdiction if the appellant has exhausted 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 or activity. Usharauli v. Department of Health & Human Services ,
116 M.S.P.R. 383, ¶ 19 (2011).3
We find that the appellant did not exhaust his CID disclosures and did exhaust his
participation in a coworker’s EEO complaint.
An employee seeking corrective action for whistleblower reprisal under
5 U.S.C. § 1221 is required to seek corrective action from OSC before seeking
corrective action from the Board. Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶ 5. After the initial decision was issued in this case, the
Board clarified the substantive requirements of exhaustion in Chambers.
Id., ¶¶ 10-11. The exhaustion requirement is met when an appellant has provided
OSC with a sufficient basis to pursue an investigation. Id., ¶ 10. The Board’s
jurisdiction is limited to those issues that have been previously raised with OSC.
Id. However, an appellant may give a more detailed account of his
whistleblowing activities before the Board than he did to OSC. Id. An appellant
may demonstrate exhaustion through his initial OSC complaint or correspondence
with OSC. Id., ¶ 11. In the alternative, 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 Board appeal. Id.
The administrative judge below did not have the benefit of the Chambers
decision. Further, for the first time on review, the appellant has provided a copy
of his OSC complaint and additional correspondence with OSC to support his
burden as to the administrative exhaustion requirement. PFR File, Tab 5
at 27-48. These documents provide new information regarding the appellant’s
alleged disclosures that the administrative judge did not have available below.
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence or
argument 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. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 213-14 (1980). However, we have considered the appellant’s
new evidence to the extent it impacts the Board’s jurisdiction, which is always4
before the Board and can be raised by the parties or sua sponte at any time. Ney
v. Department of Commerce , 115 M.S.P.R. 204, ¶ 7 (2010).
Based on our review of the appellant’s submissions below and on review,
we discern no basis to disturb the administrative judge’s implicit determination
that the appellant raised with OSC his Fourth Circuit case. However, we disagree
with his implicit finding that the appellant exhausted his CID disclosures.
Further, in contrast with the administrative judge’s contrary conclusion, the new
evidence that the appellant has submitted on review supports our finding, below,
that he exhausted with OSC his alleged protected activity of participating in his
coworker’s EEO complaint. The appellant has raised an additional alleged
disclosure and activity on review, but failed to establish jurisdiction over these
claims.
Procurement fraud by a non-Federal Government contractor
The appellant alleged in his correspondence with OSC that he reported
procurement fraud and misappropriation of funds to the agency’s CID. PFR File,
Tab 5 at 36, 47. The appellant has not provided evidence that he advised OSC of
his disclosure of the same allegation to the Deputy Assistant. Id. Nor does his
correspondence reflect the dates of his disclosures to CID, which Government
contractor he is referencing, or the actions that he believed constituted such
wrongdoing. OSC’s letters to the appellant indicate that he provided information
about “alleged procurement fraud and violations of federal acquisition
regulations” which he reported to CID from “June to August 2018 and followed
up in August 2019.” IAF, Tab 12 at 11, 13. The appellant submitted a sworn
statement below in which he alleged that, in October 2016, he advised the Deputy
Assistant of potential procurement fraud by contractor Ernest & Young LLP5
(E&Y LLP) on a task order for his office.2 Id. at 5, 62. The appellant alleged
that the Deputy Assistant “told [the appellant] to do nothing,” after which the
appellant filed a complaint on the same topic to CID in March 2017. Id. at 5.
In the initial decision, the administrative judge found that there was no
indication that the appellant exhausted with OSC the alleged disclosures he made
to the Deputy Assistant regarding the performance of the E&Y LLP contract.
ID at 7. Although the appellant disputes this finding, we agree with the
administrative judge. PFR File, Tab 5 at 12-13, 18-19. The administrative judge
also implicitly found that the appellant exhausted his alleged disclosures of
procurement fraud to CID but found that they lacked sufficient detail. ID at 8.
The appellant reasserts on review that he exhausted his CID disclosures.
PFR File, Tab 5 at 12-13, 19. We disagree with both the administrative judge and
the appellant. While both the OSC letter and the appellant’s sworn statement
discuss a complaint filed with CID and the events leading up to it, it does not
appear to be the same complaint.
The OSC letter details that the appellant alleged that he reported
procurement fraud to CID between June and August 2018. IAF, Tab 12 at 11.
However, the appellant’s sworn statement discusses a CID complaint filed in
March 2017 concerning E&Y LLP billing for their employees’ time when the
employees were not providing services or were not qualified for the work they
were performing. Id. at 5, 21-26. He also included an email from June 2020
addressed to the Deputy Assistant and another agency official disagreeing with
the agency’s decision to modify its contract with a different contractor,
AvantGarde.3 Id. at 62, 66-67. However, both below and on review, the
2 The appellant’s allegations regarding this disclosure are difficult to follow. IAF,
Tab 12 at 5, 62. Because he was not represented below, we have interpreted his
allegations liberally in the manner most favorable to him. IAF, Tab 1 at 6; see Baker v.
Social Security Administration , 2022 MSPB 27, ¶ 21 (stating that the Board liberally
construes pro se pleadings).
3 The appellant’s attorney implies on review that he exhausted his June 2020
AvantGarde disclosure with OSC. PFR File, Tab 5 at 18-19. However, the appellant6
appellant does not address his alleged CID disclosures related to procurement
fraud between 2018 and 2019, as identified and investigated by OSC. Id. at 11.
While an appellant may give a more detailed account of his activities before the
Board than he did to OSC, he must have provided OSC with sufficient
information to conduct an investigation. Chambers, 2022 MSPB 8, ¶ 10. We do
not believe that OSC had a sufficient basis to investigate his March 2017 CID
disclosure, and the Board is therefore precluded from considering it.
Fourth Circuit case
The administrative judge implicitly found that the appellant exhausted his
allegation that he was retaliated against for filing his Fourth Circuit case.
ID at 6-7. The record supports this conclusion and we decline to disturb the
administrative judge’s implicit finding. IAF, Tab 12 at 11.
Assisting coworker with EEO complaint
The appellant alleged below that he was retaliated against for participating
as a witness in an EEO case for a coworker from approximately August 2016,
through January 2017. Id. at 8, 60-63, 80. The administrative judge found that
the appellant had not exhausted this disclosure with OSC. ID at 7. The appellant
generally disagrees with the administrative judge’s exhaustion finding, but does
not present any specific arguments regarding exhaustion of his EEO activity.
PFR File, Tab 5 at 12-15. Based on the record at the time, the administrative
judge was correct. IAF, Tab 12 at 11, 13. However, for the first time on review,
the appellant submitted his OSC complaint, in which he alleged that he was a
witness in his coworker’s EEO complaint and “participated in providing
information to the complainant, complainant’s attorney, and the Pentagon medical
identified his AvantGarde disclosure below as “relevant to another allege[d] instance of
contract fraud; not conclusive because reporting is outside of this process.” IAF,
Tab 12 at 6, 66-67. He does not identify any evidence supporting a finding of
exhaustion. Because the statements of a party’s representative in a pleading do not
constitute evidence, we decline to give any weight to the unsupported suggestion of the
appellant’s attorney that the appellant exhausted his AvantGarde disclosure with OSC.
Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995 ).7
personnel.” PFR File, Tab 5 at 36-37. Thus, we find that the appellant exhausted
this disclosure with OSC.
Constituent letter to senator, Department of Defense (DOD), Office
of Inspector General (IG) complaint, and DOD hotline complaint
For the first time on review, the appellant alleges reprisal for a letter sent
to U.S. Senator Tim Kaine, a complaint submitted to the DOD IG, and a DOD
hotline complaint. Id. at 6. The new evidence he submits on review supports a
finding that he generally raised this disclosure and activity in his correspondence
with OSC. Id. at 47-48. However, his allegations imply that the alleged
disclosure and activity occurred after the personnel actions at issue in this case.
Id. A disclosure or activity that occurs after the agency took a personnel action
cannot be considered a contributing factor in that personnel action. Sherman v.
Department of Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015). Therefore, the
appellant has failed to nonfrivolously allege that he met the contributing factor
criterion as to his newly raised disclosure and activity. On remand, the appellant
may seek to prove exhaustion and clarify his allegations to meet his jurisdictional
burden as to these matters, consistent with the orders of the administrative judge.
The appellant has made a nonfrivolous allegation that assisting his coworker with
her EEO complaint was a protected activity.
Having addressed the exhaustion requirement, we turn next to the issue of
whether the appellant nonfrivolously alleged that he made protected disclosures
or engaged in protected activities within the scope of the Board’s jurisdiction.
See Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶¶ 4 -5 (2014).
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); see 5 C.F.R.
§ 1201.4(s) (defining a nonfrivolous allegation as a plausible, nonconclusory
assertion that, if proven, could establish the matter at issue). 8
Fourth Circuit case
The administrative judge found that the appellant’s Fourth Circuit case was
brought under Title VII and was not within the Board’s IRA jurisdiction because
it did not include a claim of whistleblower reprisal. ID at 7. Claims of reprisal
for engaging in activity protected by Title VII or disclosing violations of
Title VII fall outside the Board’s IRA jurisdiction. Edwards v. Department of
Labor, 2022 MSPB 9, ¶¶ 10-17, 22-23, aff’d, No. 2022-1967, 2023 WL 4398002
(Fed. Cir. July 7, 2023).4 In addition, an appellant pursuing his own personal
EEO complaint, which is a matter relating solely to discrimination, is not a
protected activity within the Board’s IRA jurisdiction. Absent an allegation of
reprisal for making protected disclosures on matters unrelated to Title VII, filing
an EEO claim is not protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). Id.,
¶¶ 22-25. Filing a complaint of discrimination also is not a protected activity
under 5 U.S.C. § 2302(b)(9)(B), even if the complaint alleges discrimination
against other employees. Id., ¶¶ 26-28. Nor is it an activity within the meaning
of 5 U.S.C. § 2302(b)(9)(C). See McCray, 2023 MSPB 10, ¶¶ 2, 26-30
(explaining that 5 U.S.C. § 2302(b)(9)(C) does not include filing a grievance
alleging disability discrimination, because doing so falls under 5 U.S.C.
§ 2302(b)(9)(A)(ii)). Finally, the appellant has not claimed that he refused to
obey an unlawful order, as necessary to allege that he engaged in activity
protected by 5 U.S.C. § 2302(b)(9)(D).
4 On review, the appellant argues that the Board has a “mixed record” on whether
disclosures regarding EEO matters are protected. PFR File, Tab 5 at 19-20. He also
posits that Congress eliminated any exclusion of EEO disclosures in the Whistleblower
Protection Enhancement Act of 2012 (WPEA). Id. at 20-21. The Board in Edwards
expressly overruled the contrary authority on which the appellant relies in asserting the
Board’s decisions on this issue are “mixed.” Id.; Edwards, 2022 MSPB 9, ¶¶ 18-20.
Similarly, the Board found that the WPEA did not expand the scope of whistleblower
protection statutes to include Title VII-related matters. Edwards, 2022 MSPB 9, ¶ 22.
The appellant fails to acknowledge or address the reasoning in Edwards, and therefore
his arguments are unpersuasive. 9
Here, the appellant alleged that the Fourth Circuit issued a decision in his
case on September 8, 2021, and the agency proposed his removal in retaliation on
September 30, 2021. PFR File, Tab 5 at 6, 19-21, 35-36. However, as the
administrative judge recognized, the appellant’s case alleged violations of
Title VII, not whistleblower reprisal. ID at 7; see Tutt v. Wormuth , No. 19-2480,
2021 WL 4076729 (4th Cir. Sept. 8, 2021). Thus, we discern no basis to disturb
the administrative judge’s conclusion that the appellant’s protected activity
concerned a violation of EEO laws outside the Board’s IRA jurisdiction. ID at 7.
Because we agree with the administrative judge that the appellant failed to
nonfrivolously allege that this disclosure was protected, we need not reach his
arguments as to the contributing factor criterion on this issue. PFR File, Tab 5
at 19; see Schmittling v. Department of the Army , 219 F.3d 1332, 1336-37 (Fed.
Cir. 2000) (stating that, in an IRA appeal, the Board is not required to address all
the jurisdictional requirements when an appeal fails to satisfy one of them
because addressing the others would be both “unnecessary and possibly
wasteful”).
Assisting coworker with EEO complaint
Under 5 U.S.C. § 2302(b)(9)(B), protected activity includes “testifying for
or otherwise lawfully assisting any individual in the exercise” of an appeal,
complaint, or grievance right. Alarid v. Department of the Army , 122 M.S.P.R.
600, ¶ 10 (2015). Assisting another employee in the EEO process constitutes
protected activity under 5 U.S.C. § 2302(b)(9)(B). Marable v. Department of the
Army, 52 M.S.P.R. 622, 629-30 n.9 (1992) (finding that the appellant’s actions
“supporting an EEO complaint filed by an applicant for a position with the
agency” by refusing to “white wash” the matter constituted protected activity
under section 2302(b)(9)(B)).
According to the appellant, from approximately August 2016, through
January 2017, he provided information to his coworker, her attorney, and agency
medical staff to corroborate his coworker’s EEO claim alleging race10
discrimination. PFR File, Tab 5 at 36-37; IAF, Tab 12 at 62-63, 80. Because the
administrative judge found that the appellant did not exhaust this claim, he did
not consider whether the appellant satisfied the remaining jurisdictional elements
of this activity. ID at 7. We find that the appellant nonfrivolously alleged that
his actions supporting his coworker’s EEO complaint constituted protected
activity under 5 U.S.C. § 2302(b)(9)(B).
The appellant nonfrivolously alleged that the agency took personnel actions
against him.
In cases such as this one, when the appellant has alleged multiple personnel
actions, 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 or activity. Skarada, 2022 MSPB 17, ¶ 13. Because the administrative
judge disposed of the appellant’s claims on other grounds, he did not make any
findings as to the alleged personnel actions. ID at 7-8. Therefore, we do so here.
Based on our review of the appellant’s jurisdictional pleadings, we find that he
has exhausted the following alleged personnel actions with OSC: his temporary
detail beginning November 2016, his July 2018 management -directed
reassignment, his September 2021 proposed removal, and his October 28, 2021
alleged involuntary resignation. IAF, Tab 10 at 7, Tab 12 at 4-8, 13-14, 35,
52-53. Although the appellant also alleged below that, beginning in November
2016, he was subjected to a retaliatory AR 15-6 investigation, he has provided no
evidence that he raised this claim with OSC. IAF, Tab 12 at 4-6, 8, 11, 13; PFR
File, Tab 5 at 27-48. Because he failed to prove he exhausted his OSC remedy,
we will not address this alleged personnel action further.
Temporary Detail and Permanent Reassignment
The appellant asserted that he was subjected to a reassignment. IAF,
Tab 12 at 4-6, 52-53; PFR File, Tab 5 at 35. Federal employees may seek
corrective action for retaliatory “detail[s], transfer[s], or reassignment[s]” in an11
IRA appeal. See 5 U.S.C. § 2302(a)(2)(A)(iv) (defining “personnel action” to
include such actions). Here, the appellant elaborated in his statements below that,
while his grade and pay did not change, his job title, job duties and
responsibilities, and duty station all changed when he was temporarily detailed,
and then issued a management-directed reassignment, to the position of Executive
Program Support Analyst. IAF, Tab 12 at 4-6, 52-54, 86-87. This reassignment
also removed his supervisory duties. Id. at 86-87. The appellant ultimately
elected to accept the management-directed reassignment “under protest.” Id.
at 94-95. Thus, the appellant made nonfrivolous allegations that he was subjected
to a personnel action.
Proposed Removal and Resignation
The appellant has also nonfrivolously alleged that the agency proposed his
removal in September 2021. IAF, Tab 10 at 7-14, Tab 12 at 8; PFR File, Tab 5
at 6, 35-36, 42-46. The agency’s proposed removal constituted a personnel
action. Bacas v. Department of the Army , 99 M.S.P.R 464, ¶ 5 (2005).
According to the appellant, he resigned on October 28, 2021. IAF, Tab 10
at 5; PFR File, Tab 5 at 48. An appellant can pursue a claim of involuntary
resignation as a personnel action in an IRA appeal. See Mastrullo v. Department
of Labor, 123 M.S.P.R. 110, ¶ 10 (2015). Here, the administrative judge did not
notify the appellant of his burden of proof and the elements to make a
nonfrivolous allegation that his resignation was involuntary. The administrative
judge should determine on remand whether the appellant nonfrivolously alleged
that his decision to resign was involuntary, and thus a personnel action that could
be raised in an IRA appeal.
We observe, without deciding at this stage in the proceedings, that, as the
Executive Program Support Analyst at the time of his resignation, the appellant
may be “a supervisor or a management official” within the definition of 5 U.S.C.
§ 7103(a)(2) and (a)(10)-(11). If so, he is not subject to the election of remedies
requirement in 5 U.S.C. § 7121(g). See Requena v. Department of Homeland12
Security, 2022 MSPB 39, ¶¶ 7-8, 10-15. On remand, the administrative judge
should advise the parties of this and any other election of remedies issues and
give them an opportunity to address them. Id., ¶¶ 15-16; see, e.g., Corthell v.
Department of Homeland Security , 123 M.S.P.R. 417, ¶¶ 15-17 (2016)
(explaining that, to be binding, an election under 5 U.S.C. § 7121(g) must be
knowing and informed), overruled on other grounds by Requena v. Department of
Homeland Security , 2022 MSPB 39.
The appellant made a nonfrivolous allegation that his participation in his
coworker’s EEO complaint contributed to his management - directed reassignment.
In addition to the requirements addressed above, to establish IRA
jurisdiction, the appellant must nonfrivolously allege that a protected disclosure
or activity was a contributing factor in the agency’s decision to take or fail to take
a personnel action. Chambers, 2022 MSPB 8, ¶ 14. To satisfy the contributing
factor criterion at the jurisdictional stage, an appellant need only raise a
nonfrivolous allegation that the fact of, or content of, the protected disclosure or
activity was one factor that tended to affect the personnel action in any way. Id.
One way to establish this criterion is the knowledge/timing test, under which an
employee may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official taking the personnel action knew of the disclosure or
activity, and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor in the personnel action. Id., ¶ 15; see 5 U.S.C. § 1221(e)(1).
In deciding whether an appellant has nonfrivolously alleged that he made
protected disclosures or engaged in protected activities that contributed to a
personnel action, the Board is not permitted to “credit[] the agency’s
interpretation of the evidence.” Hessami, 979 F.3d at 1369.
As discussed above, the appellant alleges that he assisted his coworker with
her EEO complaint from June 2016, through January 2017. IAF Tab 12 at 7, 60,13
80, 146. He states his belief that one of the agency officials named in that
complaint was the Deputy Assistant. Id. at 7. The appellant further alleges that,
due to his participation in his coworker’s complaint, the Deputy Assistant
retaliated against him by, in relevant part, reassigning him. Id. at 19, 52-53, 60,
87.
The Deputy Assistant acknowledged that he learned of the appellant’s
protected activity on July 26, 2018. Id. at 113. The appellant has alleged that
he believes his reassignment became permanent effective July 27, 2018, which
would be a day after the Deputy Assistant stated he became aware of the
appellant’s protected activity.5 Id. at 84-85.
These events are close enough in time to support a conclusion that the
appellant’s assistance with his coworker’s EEO complaint was a contributing
factor in his management-directed reassignment. See Scoggins v. Department of
the Army, 123 M.S.P.R. 592, ¶ 25 (2016) (observing that a personnel action that
takes place within 2 years of a disclosure satisfies the knowledge component of
the knowledge/timing test). Accordingly, we find that the appellant is entitled to
his requested hearing regarding his claim that the agency permanently reassigned
him in retaliation for his protected activity of participating as a witness in his
coworker’s EEO complaint. IAF, Tab 1 at 2. We do not address here whether the
appellant also nonfrivolously alleged that his assistance with his coworker’s EEO
complaint contributed to his detail beginning November 2016, his September
2021 proposed removal, or his October 2021 resignation. On remand, the
administrative judge should make findings on these issues and, if appropriate,
adjudicate these additional personnel actions on the merits.
5 We do not resolve at the jurisdictional stage whether the appellant’s reassignment was
completed prior to July 26, 2018, and merely awaiting implementation. If it was, then
the appellant may not be able to prove the contributing factor criterion on the merits.
See Sherman, 122 M.S.P.R. 644, ¶¶ 8-11.14
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.15 | Tutt_Louis_M_DC-1221-22-0234-W-1_Remand_Order.pdf | 2024-04-03 | LOUIS M. TUTT v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-1221-22-0234-W-1, April 3, 2024 | DC-1221-22-0234-W-1 | NP |
1,897 | https://www.mspb.gov/decisions/nonprecedential/Agamez_MonaDE-0714-22-0050-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONA AGAMEZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0714-22-0050-I-1
DATE: April 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Tyler J. Sroufe , Esquire, Dallas, Texas, for the appellant.
Daniel Morvant , Esquire, and Sean A. Safdi , Esquire, Denver, 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 her 38 U.S.C. § 714 removal appeal as untimely filed. 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 Denver Field Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The agency removed the appellant effective October 29, 2021, under the
authority of 38 U.S.C. § 714. Initial Appeal File (IAF), Tab 8 at 9. The appellant
received notice of the agency’s decision the same day. Id. at 4, 12. On
November 24, 2021, the appellant filed this appeal challenging the removal,
alleging that it “was motivated by Title VII discrimination and retaliation.”
IAF, Tab 1 at 6. The administrative judge issued an order on timeliness in which
he informed the appellant that she had 10 business days from the date of the
removal to file her appeal, observed that it appeared she had untimely filed,
described the circumstances under which the deadline could be waived, and
ordered both parties to respond. IAF, Tab 3. Both parties did so. IAF, Tabs 7-8.
The administrative judge then issued an initial decision finding the appeal was
untimely filed by 7 business days, or 9 calendar days. IAF, Tab 9, Initial
Decision at 2-3. He reasoned that, under 38 U.S.C. § 714, the appellant had
10 business days from the date of her removal to file a Board appeal. Id.
The appellant has filed a petition for review, arguing that she established
good cause for her delay in filing, and the agency has responded. Petition for
Review (PFR) File, Tabs 1, 3. Because the appellant appeared to raise a claim of
discrimination and/or retaliation in violation of equal employment opportunity
(EEO) statutes, the Office of the Clerk of the Board issued an order to the parties
to indicate whether the appellant had filed an EEO complaint of her removal with
the agency. PFR File, Tab 5. Both parties responded and informed the Board
that the appellant filed an EEO complaint after she filed her initial appeal with
the Board. PFR File, Tab 6 at 4, Tab 7 at 4. 2
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant files what is known as a mixed case when, as here, she seeks
review of a matter within the Board’s appellate jurisdiction and also raises a
claim of discrimination or retaliation in violation of EEO statutes. Wilson v.
Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 12, 25. An appellant has two
options when filing a mixed case: (1) she may initially file a mixed-case EEO
complaint with her employing agency followed by an appeal to the Board; or
(2) she may file a mixed-case appeal with the Board and raise her discrimination
claims in connection with that appeal. Id., ¶ 13. An employee may file either a
mixed-case complaint or a mixed-case appeal, but not both, and whichever is filed
first is deemed an election to proceed in that forum. Id. Here, the appellant first
filed an appeal with the Board regarding her removal in November 2021.
IAF, Tab 1. She filed her EEO complaint concerning her removal with her
agency in January 2022.2 PFR File, Tab 6 at 4, Tab 7 at 4. Therefore,
she effectively elected the Board as the forum in which to adjudicate her removal.
After the initial decision in this matter was issued, the Board held that
when the agency takes an action under 38 U.S.C. § 714, and the appellant files a
mixed-case appeal, the procedures contained within 5 U.S.C. § 7702 and the
Board’s implementing regulations apply. Davis v. Department of Veterans
Affairs, 2022 MSPB 45, ¶ 19; Wilson, 2022 MSPB 7, ¶¶ 11-25. Those regulations
provide that mixed-case appeals must be filed within 30 days of 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. Davis, 2022 MSPB 45, ¶ 19; 5 C.F.R.
§ 1201.154(a). The appellant received the agency’s removal decision on
2 The agency has indicated that it dismissed the appellant’s EEO complaint on the basis
that she had previously appealed her removal to the Board. PFR File, Tab 6 at 4, 9-10.
The appellant filed an appeal of the agency’s dismissal to the Equal Employment
Opportunity Commission’s Office of Federal Operations, which affirmed the dismissal
of her claims challenging her proposed removal and removal, but remanded most of the
remaining claims in her EEO complaint to the agency for processing. PFR File, Tab 6
at 4, 16, 18-19, Tab 7 at 4.3
October 29, 2021, and it was effective the same day; therefore, the appellant’s
30-day time period for filing a Board appeal began on that date. IAF, Tab 8 at 9,
12. The appellant filed her mixed-case appeal 26 days later, on November 24,
2021, IAF, Tab 1, and thus it was timely filed. Accordingly, we remand the
appeal for further adjudication.
ORDER
For the reasons discussed above, we remand this case to the Denver 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 | Agamez_MonaDE-0714-22-0050-I-1 Remand Order.pdf | 2024-04-03 | MONA AGAMEZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0714-22-0050-I-1, April 3, 2024 | DE-0714-22-0050-I-1 | NP |
1,898 | https://www.mspb.gov/decisions/nonprecedential/Morales_Marcos_A_CH-1221-21-0420-W-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARCOS A. MORALES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-21-0420-W-1
DATE: April 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Ibidun Roberts , Esquire, Columbia, Maryland, for the appellant.
Dennis M. McGuire , Esquire, Akron, Ohio, for the agency.
Grant T. Swinger , Esquire, Westchester, Illinois, for the agency.
Timothy B. Morgan , Esquire, Hines, Illinois, for the agency.
Rachel A. Davakis , Esquire, Washington, D.C., for amicus curiae, Office
of Special Counsel.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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 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 this matter to the Central Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
On August 12, 2021, the appellant, a GS-11 Supervisory Diagnostic
Radiologic Technician, filed an appeal with the Board alleging that the agency
had retaliated against him for “whistleblower activity and perceived
whistleblower disclosures.” Initial Appeal File (IAF), Tab 1 at 4, Tab 9 at 31.
The appellant alleged the following: (1) on January 14-17, 2019, he participated
in an investigation conducted by the agency’s Office of Medical Inspector (OMI);
(2) on February 11-12, 2019, he participated in a Veterans Health Administration
(VHA) Radiology site visit; and (3) on April 8-12, 2019, he participated in an
investigation conducted by the agency’s Office of the Inspector General (OIG).
IAF, Tab 2 at 1. The appellant averred that the agency was aware of his
participation in the three investigations. Id. at 2. He explained that, during each
of these investigations, he was questioned about purported wrongdoings of M.S.,
the agency’s Health Systems Specialist Director. Id.
The appellant asserted that, as a result of his participation in the three
aforementioned investigations, the agency took the following actions: (1) on
March 25, 2019, it cancelled a vacancy announcement for a position for which he
had applied; (2) on September 3, 2020, it cancelled a vacancy announcement for a
position for which he had applied; (3) on September 14, 2020, it failed to select
him for the MidCon Administrative Officers Academy; and (4) between
January 29, 2021, and February 5, 2021, it expanded the area of consideration for
a position for which he had applied, i.e., it posted the position externally, in order2
to avoid hiring him. Id. at 2-3. The appellant averred that M.S. had been
involved in all of these actions. Id. at 4. The appellant explained that he had
filed a complaint with the Office of Special Counsel (OSC) on March 10, 2021,
and that, on July 31, 2021, OSC had provided him with a 60 -day status update
following a prior 90-day status update. Id. at 5, 88. He provided a copy of his
OSC complaint, IAF, Tab 1 at 8-20, and explained that, on April 12, 2021, he had
amended his complaint in response to OSC’s initial assessment of the same, IAF,
Tab 8 at 5, 9-14. The appellant’s amended complaint alleged that the agency also
perceived him as a whistleblower. Id. at 9. The appellant requested a hearing on
the matter. IAF, Tab 1 at 2. The agency argued that the appellant had failed to
show that the Board has jurisdiction over his appeal. IAF, Tab 10 at 7-13.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the matter for lack of jurisdiction. IAF,
Tab 14, Initial Decision (ID) at 1, 10. In so doing, she concluded that the
appellant had exhausted his claims of protected activity with OSC.2 ID at 3-5.
She also found that he had exhausted his claim that the agency perceived him as a
whistleblower. ID at 4. She found, however, that the appellant failed to make a
nonfrivolous allegation that he had engaged in any protected activity under
5 U.S.C. § 2302(b)(9). ID at 6-8. To this end, she reasoned that the appellant
had not gone to either OIG or any of the other agency investigatory components
to disclose wrongdoing; rather, the components had come to him at his worksite,
and he had “no choice but to cooperate.” ID at 7. She also reasoned that the
appellant had not provided any information to these entities that “constitute[d] a
2 The administrative judge explained via footnote that the appellant had also indicated
that he had filed an equal employment opportunity (EEO) complaint on January 29,
2021, and that an EEO representative had thereafter contacted agency management
officials regarding the complaint. ID at 5-6 n.7. She also indicated that the appellant
had alleged that he had contacted the office of Senator Tammy Duckworth. Id. The
administrative judge explained, however, that the appellant did not allege that either of
these actions constituted protected activity under 5 U.S.C. § 2302(b)(9) or that any
adverse personnel actions had stemmed therefrom. Id. The appellant does not raise any
arguments concerning either of these actions on review.3
disclosure under whistleblowing law”; indeed, the appellant “had nothing to
disclose to the investigators about the suspected wrongdoing.” ID at 7-8. For
these same reasons, the administrative judge found that the appellant failed to
make a nonfrivolous allegation that the agency perceived him as a whistleblower.
ID at 8-9. Although the administrative judge found that the appellant had
exhausted various alleged personnel actions with OSC, she did not make a finding
regarding whether the appellant had made nonfrivolous allegations of personnel
actions under 5 U.S.C. § 2302(a). ID at 4-5.
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, 5.3 Additionally, OSC has filed an amicus curiae brief.4 PFR File,
Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence5 that he exhausted his administrative remedies before
OSC and make nonfrivolous allegations6 of the following: (1) he made a
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a protected
3 The agency’s response was due on or before December 3, 2021. PFR File, Tab 4 at 1.
The agency ostensibly filed its response at 12:45 a.m. on December 4, 2021. PFR File,
Tab 3, Tab 4 at 1. The agency, however, is located in Hines, Illinois; thus, its response
was timely filed. See 5 C.F.R. § 1201.14(m) (2021) (explaining that the date of filing
for pleadings filed via e -Appeal Online are time stamped with Eastern Time, but the
timeliness of a pleading will be determined based on the time zone from which the
pleading was submitted).
4 OSC contends in its brief that the administrative judge erred in finding that the
appellant failed to nonfrivolously allege that his cooperation with, and disclosures to,
the agency’s investigative components constituted protected activity under 5 U.S.C.
§ 2302(b)(9)(C). PFR File, Tab 6 at 1-10. As discussed herein, we agree with OSC’s
contention.
5 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).
6 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). 4
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).
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 11, 14. 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).
For the following reasons, we disagree with the administrative judge’s
conclusion that the appellant failed to establish Board jurisdiction, and we
remand the matter for adjudication on the merits.
The appellant made a nonfrivolous allegation that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9). 7
The administrative judge concluded that the appellant failed to make a
nonfrivolous allegation that he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9) because (1) his participation in the three agency investigations was
compulsory and (2) he had not disclosed any wrongdoing to agency investigators,
much less made a protected disclosure. ID at 7-8. We disagree with this
conclusion.
An appellant engages in protected activity when he cooperates with, or
discloses information to, “the Inspector General (or any other component
7 We find that the appellant exhausted his administrative remedies before OSC
regarding the allegations discussed herein; indeed, the agency did not discernably
dispute that the appellant satisfied the exhaustion requirement. IAF, Tab 1 at 16-17,
Tab 8 at 9-11; see Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8
(2011) (explaining that an appellant may demonstrate exhaustion through, among other
things, his initial OSC complaint, evidence that he amended his initial complaint, and
his correspondence with OSC). 5
responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” 5 U.S.C.
§ 2302(b)(9)(C). Under the broadly worded provision of 5 U.S.C. § 2302(b)(9)
(C), disclosures of information to an agency component responsible for internal
investigation or review are protected regardless of their content, as long as such
disclosures are made “in accordance with applicable provisions of law.” See
Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. Here, the appellant
asserted that he cooperated with investigations conducted by three separate
agency investigatory components, i.e., OMI, VHA Radiology, and OIG.8 IAF,
Tab 2 at 1. He also asserted that, during each of these investigations, he provided
“the best information he had” concerning the alleged wrongdoings of M.S. Id.
at 2. Contrary to the administrative judge’s findings, neither the content of the
appellant’s disclosures to these components nor his lack of proactivity in making
the same are relevant for purposes of Board jurisdiction; indeed, the plain
language of the statute provides that an appellant need only “cooperat[e] with” or
“disclos[e] information to” such an entity.9 See 5 U.S.C. § 2302(b)(9)(C); see
also Fisher, 2023 MSPB 11, ¶ 8. Thus, we find that the appellant made a
8 As indicated, the statute provides that “cooperating with or disclosing information to”
OIG, OSC, or “any other component responsible for internal investigation or review”
constitutes protected activity. 5 U.S.C. § 2302(b)(9). Thus, the appellant’s assertion
that he participated in an OIG investigation amounts to a nonfrivolous allegation of
protected activity. Insofar as the appellant provided documents showing that OMI has
the authority to conduct internal agency investigations, we find that the appellant’s
allegation that he participated in an OMI investigation also constitutes a nonfrivolous
allegation of protected activity. E.g., IAF, Tab 1 at 65-66. Although the appellant’s
assertions regarding the VHA Radiology site visit were less clear, he specifically
asserted that this component is responsible for internal reviews. IAF, Tab 2 at 1,
Tab 11 at 5-6. We find that such an allegation is sufficient at the jurisdictional stage.
See Hessami, 979 F.3d at 1364, 1369.
9 The nature of an appellant’s cooperation/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 must 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. 6
nonfrivolous allegation of three instances of protected activity under 5 U.S.C.
§ 2302(b)(9).10
The appellant made a nonfrivolous allegation that the agency perceived him as a
whistleblower.
The administrative judge concluded that the appellant failed to make a
nonfrivolous allegation that the agency perceived him as a whistleblower because
he had merely cooperated with agency-initiated investigations and neither was
aware of any actual wrongdoing nor made any protected disclosures to agency
investigators. ID at 8-9. We disagree with this conclusion.
The Board is authorized under 5 U.S.C. § 1221(a) to consider a request for
corrective action when the appellant alleges that the agency violated 5 U.S.C.
§ 2302(b)(9)(C) by taking or failing to take a personnel action based on its
perception that he engaged in activity protected under that statute. Corthell v.
Department of Homeland Security , 123 M.S.P.R. 417, ¶ 12 (2016), overruled on
other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39.
The analysis of whether an appellant was actually a whistleblower is different
than the analysis of whether an appellant was perceived as a whistleblower.
King v. Department of the Army , 116 M.S.P.R. 689, ¶ 8 (2011). In cases falling
under the latter category, the Board will focus its analysis on the agency’s
perceptions, i.e., whether the agency officials involved in the personnel actions at
issue believed that the appellant engaged or intended to engage in protected
activity. See id. In these cases, the issue of whether the appellant actually
engaged in protected activity is immaterial; the issue of whether the agency
10 In his petition for review, the appellant asserts that “he did make protected
disclosures” during the course of the three investigations. PFR File, Tab 1 at 9. We
surmise that, through this assertion, the appellant is buttressing his argument that he
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C). To the extent he is
instead asserting that he also made protected disclosures under 5 U.S.C. § 2302(b)(8),
we find his assertion unavailing. Indeed, the appellant did not allege before either OSC
or the administrative judge that his IRA appeal concerned protected disclosures under
5 U.S.C. § 2302(b)(8). IAF, Tab 1 at 10, 16-17, Tab 2 at 1-2, Tab 8 at 9; see Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). 7
perceived him as a whistleblower will essentially stand in for that portion of the
Board’s analysis in the jurisdictional stage of the appeal. Id.
Here, as discussed, the appellant alleged that agency management was
aware that he had participated in all three agency investigations, each of which
we have found constituted protected activity under 5 U.S.C. § 2302(b)(9)(C).
IAF, Tab 2 at 1-2. Implicit in this allegation was an allegation that agency
management believed that he had engaged in protected activity vis-à-vis the
investigations. Thus, we find that the appellant also made a nonfrivolous
allegation that the agency perceived him to be a whistleblower. However, to the
extent the appellant proves at the merits stage of his appeal that he participated in
all three investigations and that the relevant agency management officials were
aware of his participation, the appellant’s “perceived as” claim will likely carry
little weight.
The appellant made a nonfrivolous allegation that he was subjected to personnel
actions.
Although the administrative judge found that the appellant had exhausted
his administrative remedy regarding his four alleged personnel actions, she did
not make a finding as to whether his allegations constituted nonfrivolous
allegations of personnel actions under 5 U.S.C. § 2302(a). As stated, the
appellant identified the following personnel actions: (1) a March 25, 2019
cancellation of a vacancy announcement for a position for which he had applied;
(2) a September 3, 2020 cancellation of a vacancy announcement for a position
for which he had applied; (3) his September 14, 2020 nonselection for the
MidCon Administrative Officers Academy; and (4) the agency’s January 2021
expansion of the area of consideration for a position for which he had applied.
IAF, Tab 2 at 2-3.
Regarding the March 25, 2019 and September 3, 2020 vacancy
announcement cancellations, the appellant asserted that, on the aforementioned
dates, the agency cancelled vacancy announcements for a Health Systems8
Specialist Position. Id. at 2, 7, 9. He averred that he had interviewed for the first
vacancy announcement prior to the agency’s cancellation of the same and that the
agency cancelled the second vacancy announcement on the same day that he
applied for the position. Id. at 2. We find that these assertions constitute
nonfrivolous allegations of two nonselections, i.e., two personnel actions under
5 U.S.C. § 2302(a)(2)(A)(i). See Ruggieri v. Merit Systems Protection Board ,
454 F.3d 1323, 1326 (Fed. Cir. 2006) (explaining that a nonselection is a
cognizable personnel action even when the agency does not select another
candidate to fill the subject position).
Regarding his September 14, 2020 nonselection for a training opportunity
at the MidCon Administrative Officers Academy, the appellant asserted that he
sought to participate in the Academy, which is “a comprehensive, hands-on and
intensive boot camp geared towards high -performing Administrative Officers []
who may serve as trainers and mentors at their home stations upon completion”;
however, he was not selected for this opportunity. IAF, Tab 2 at 3-4, 10-18. “[A]
decision concerning . . . training” is a personnel action if it “may reasonably be
expected to lead to an appointment, promotion, performance evaluation,
or other [personnel] action [as described in 5 U.S.C. § 2302(a)(2)(A).]” 5 U.S.C.
§ 2302(a)(2)(A)(ix). Thus, the plain wording of the statute explicates that not all
denials of training opportunities are covered personnel actions. Id.; see Simone v.
Department of the Treasury , 105 M.S.P.R. 120, ¶ 9 (2007); see also Shivaee v.
Department of the Navy , 74 M.S.P.R. 383, 387 (1997) (explaining that there must
be, at a minimum, a moderate probability that the training would have resulted in
some type of personnel action). Here, we find that the appellant made a
nonfrivolous allegation of a personnel action under 5 U.S.C. § 2302(a)(2)(A)(ix).
Indeed, in addition to alleging that the subject training opportunity was geared
towards employees “who may serve as trainers and mentors at their home stations
upon completion,” IAF, Tab 2 at 4, the appellant also provided an email
indicating that this training opportunity facilitated “the establishment of an9
informal ‘resource pool’ of trained” administrative officers, id. at 12. Thus, we
find that the appellant made a nonfrivolous allegation that he was denied a
training opportunity that may reasonably have been expected to lead to an
appointment, promotion, performance evaluation, or other personnel action. See
5 U.S.C. § 2302(a)(2)(A)(ix); see also Grimes , 96 M.S.P.R. 595, ¶ 12 (stating that
any doubt or ambiguity regarding jurisdictional allegations should be resolved in
favor of affording the appellant a hearing).
Lastly, regarding the agency’s expansion of the area of consideration for a
position, the appellant asserted that, on January 11, 2021, the agency posted a
vacancy announcement for a Chief Technologist position. IAF, Tab 2 at 4. He
averred that M.S. “actively sought other employees to apply for the position,” and
thereafter opened the position to external candidates.11 Id. The appellant alleged
that M.S. had taken these actions “to avoid hiring him.” Id. at 3. We find that
these assertions amount to a nonfrivolous allegation of an additional nonselection,
i.e., a personnel action under 5 U.S.C. § 2302(a)(2)(A)(i). See Weed v. Social
Security Administration , 113 M.S.P.R. 221, ¶¶ 4, 13-17 (2010) (concluding that
an agency’s purported use of “a particular selection process as part of a scheme
that would deny a whistleblower an opportunity to seek [an] appointment”
constituted a nonfrivolous allegation of a nonselection).
Accordingly, we find that the appellant made nonfrivolous allegations of
four separate personnel actions, i.e., three nonselections and the denial of a
training opportunity. See 5 U.S.C. § 2302(a)(2)(A)(i), (ix).
11 As discussed in the initial decision, the appellant alleged in his OSC complaint that
the agency failed to consider his veterans’ preference when evaluating him for the Chief
Technologist position; however, the appellant, who is represented by counsel, did not
discernably raise this claim before the Board. ID at 5; IAF, Tab 1 at 17, Tab 2 at 2-3.
To the extent the appellant wishes to raise a claim under the Veterans Employment
Opportunities Act of 1998 (VEOA), he may file a separate appeal in this regard. See
Haasz v. Department of Veterans Affairs , 108 M.S.P.R. 349, ¶ 6 (2008) (setting forth
the jurisdictional standard for VEOA claims). 10
The appellant has satisfied the contributing factor jurisdictional criterion.
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. See
Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way to
satisfy the contributing factor criterion is the knowledge/timing test. Wadhwa v.
Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435
(Fed. Cir. 2009). Under this test, an appellant can prove the contributing factor
element through evidence showing that the official taking the personnel action
knew of his protected activity and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the activity
was a contributing factor in the personnel action. See id.; see also 5 U.S.C.
§ 1221(e)(1).
Here, the appellant alleged that the agency “was aware of everyone who
participated in the investigations,” which occurred in January 2019,
February 2019, and April 2019. IAF, Tab 2 at 1-2, Tab 8 at 9. He also alleged
that M.S. was involved with all four personnel actions at issue, which occurred
between March 2019, and January 2021. IAF, Tab 2 at 4. Accordingly, we find
that the appellant made nonfrivolous allegations that, if proven, would satisfy the
contributing factor criterion via the knowledge/timing test.12 See Wadhwa,
110 M.S.P.R. 615, ¶ 12 (explaining that, if an appellant satisfies the
knowledge/timing test, the appellant has demonstrated that a protected disclosure
was a contributing factor in a personnel action); see also Mastrullo v. Department
of Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (explaining that the Board has held that
a personnel action taken within approximately 1 to 2 years of a protected
disclosure satisfies the knowledge/timing test).
12 However, the appellant’s March 25, 2019 nonselection predated the April 2019 OIG
investigation; thus, the appellant’s participation in the OIG investigation could not have
contributed to his initial nonselection. IAF, Tab 2 at 1-3; see El v. Department of
Commerce, 123 M.S.P.R. 76, ¶ 10 (2015) (explaining that, because the subject
personnel action predated the appellant’s protected disclosure, the disclosure could not
have contributed to the personnel action), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).11
Accordingly, we find that the appellant made nonfrivolous allegations that
he engaged in protected activity under 5 U.S.C. § 2302(b)(9) and that the agency
perceived him as a whistleblower. We also find that he made nonfrivolous
allegations that his protected activity and the agency’s perception of him as a
whistleblower contributed to four personnel actions under 5 U.S.C. § 2302(a)(2),
i.e., three nonselections and the denial of a training opportunity. Thus, we find
that he is entitled to his requested hearing and a decision on the 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 this appeal. See Lewis v. Department of Defense , 123 M.S.P.R. 255,
¶ 14 (2016).
ORDER
For the reasons discussed above, we remand the appellant’s IRA appeal to
the Central Regional Office for further adjudication in accordance with this
Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Morales_Marcos_A_CH-1221-21-0420-W-1 Remand Order.pdf | 2024-04-03 | MARCOS A. MORALES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-21-0420-W-1, April 3, 2024 | CH-1221-21-0420-W-1 | NP |
1,899 | https://www.mspb.gov/decisions/nonprecedential/Trujillo_Samuel_DC-3443-22-0374-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL TRUJILLO,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3443-22-0374-I-1
DATE: April 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Samuel Trujillo , APO, APO/FPO Europe, pro se.
Maite S. Hiatt and Sarah Dawn Dobbs , APO, APO/FPO Europe, 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 his alleged involuntary placement in sick leave and
leave without pay (LWOP) status for lack of jurisdiction. 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 Washington Regional Office for
further adjudication in accordance with this Remand Order.
The appellant, a preference eligible, is appointed to a competitive-service
position as a GS-6 Physical Scientist. Initial Appeal File (IAF), Tab 1 at 1. The
appellant filed this appeal, in which he alleged that the agency committed a
prohibited personnel practice by involuntarily placing him in sick leave and
LWOP status. IAF, Tab 1 at 3.
The administrative judge issued an order to show cause notifying the
appellant of his burden of proof to establish the Board’s adverse action
jurisdiction over his appeal, including that a “suspension of greater than 14 days”
is appealable. IAF, Tab 3 at 2. She also explained that the Board lacks
jurisdiction over “leave related complaints” or prohibited personnel practices
unless raised alongside an otherwise appealable matter. Id. Neither the appellant
nor the agency responded to the order. Without holding the appellant’s requested
hearing, the administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID) at 1, 4. She reasoned
that the appellant failed to nonfrivolously allege he suffered an appealable action
based on the charge of sick leave and LWOP. ID at 4.
The appellant has filed a petition for review of the initial decision, and the
agency has responded. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We remand for further proceedings because the appellant did not receive explicit
notice of what is required to establish Board jurisdiction based on his allegations.
We find that the instant appeal needs to be remanded for further
proceedings under 5 U.S.C. § 7701, because it appears that the appellant may be
attempting to raise an involuntary suspension claim. Moreover, because he is
preference eligible, he may have a claim under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at2
38 U.S.C. §§ 4301-4335) (USERRA)2 or the Veterans Employment Opportunity
Act (VEOA).
An appellant must receive explicit information on what is required to
establish Board jurisdiction. Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985); Tedesco v. Department of the Air Force ,
90 M.S.P.R. 367, ¶ 7 (2001) (remanding an appeal due to the administrative
judge’s failure to advise the appellant what was required to establish Board
jurisdiction over a constructive suspension appeal), aff’d per curiam , 99 F. App’x
897 (Fed. Cir. 2004) (Table). The administrative judge’s orders and the initial
decision did not provide the appellant with notice of the jurisdictional
requirements for an involuntary suspension. IAF, Tabs 2, 3; ID at 1-4.
Moreover, the agency did not submit a response containing the relevant notice.
See Harris v. U.S. Postal Service , 112 M.S.P.R. 186, ¶ 9 (2009) (stating that an
administrative judge’s failure to 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). Although the pro se appellant’s appeal form does
not specifically allege that he was subject to an involuntary suspension, the
appellant alleged that the agency improperly placed him in sick leave and LWOP
status for an unspecified period of time without his consent. IAF, Tab 1 at 3.
The appellant needs to be advised that an employee’s absence for more than
14 days that results in a loss of pay may be a constructive suspension appealable
under 5 U.S.C. §§ 7512(2) and 7513(d). To establish Board jurisdiction over an
involuntary suspension, an appellant must prove by preponderant evidence that
(1) he lacked a meaningful choice in his absence; and (2) it was the agency’s
wrongful actions that deprived him of that choice. Bean v. U.S. Postal Service ,
120 M.S.P.R. 397, ¶ 8 (2013). Because the appellant was not so informed, it is
2 The Board’s jurisdiction over a USERRA claim is not dependent on an appellant invoking
USERRA. Yates v. Merit Systems Protection Board , 145 F.3d 1480, 1485 (Fed. Cir. 1998).
USERRA claims are broadly and liberally construed. Tindall v. Department of the Army ,
84 M.S.P.R. 230, ¶¶ 6-7 (1999). 3
necessary to remand this appeal to the regional office to provide him with an
adequate opportunity to establish jurisdiction. Tedesco, 90 M.S.P.R. 367, ¶ 7.
Lastly, although the appellant is preference eligible, neither the
administrative judge’s orders nor her initial decision provided the appellant with
notice on the jurisdictional requirements of a USERRA or VEOA claim. IAF,
Tabs 2, 3; ID at 1-4. Therefore, on remand the appellant should also be advised
that to establish Board jurisdiction over a USERRA discrimination claim under
38 U.S.C. § 4311(a), he 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 performance of duty or obligation to
perform duty in the uniformed service was a substantial or motivating factor in
the denial. Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 11
(2016), aff’d sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320
(Fed. Cir. 2017); see Bryant, 878 F.3d at 1325-26 (articulating the “substantial or
motivating factor” standard) (citation omitted). Furthermore, to establish Board
jurisdiction over a veterans’ preference VEOA appeal brought pursuant to
5 U.S.C. § 3330a, an appellant must: (1) show that he exhausted his remedy with
the Department of Labor (DOL); and (2) make nonfrivolous allegations that (i) he
is a preference eligible within the meaning of VEOA, (ii) the action at issue took
place on or after the October 30, 1998 enactment date of VEOA, and (iii) the
agency violated his rights under a statute or regulation relating to veterans’
preference. 5 U.S.C. § 3330a(a); Lazaro v. Department of Veterans Affairs ,
666 F.3d 1316, 1319 (Fed. Cir. 2012); Haasz v. Department of Veterans Affairs ,
108 M.S.P.R. 349, ¶ 6 (2008).3 An appellant need not state a claim upon which
3 An appellant also may establish Board jurisdiction over a “right to compete” VEOA
appeal brought under 5 U.S.C. § 3330a(a)(1)(B). To establish jurisdiction over such a
claim, he must: (1) show that he exhausted his remedy with DOL; and (2) make
nonfrivolous allegations that (i) he is a preference eligible or veteran within the
meaning of 5 U.S.C. § 3304(f)(1), (ii) the action at issue took place on or after the
enactment date of the Veterans’ Benefits Improvement Act of 2004, and (iii) the4
relief can be granted for the Board to have jurisdiction over a VEOA claim.
Haasz, 108 M.S.P.R. 349, ¶ 6.
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
agency, in violation of 5 U.S.C. § 3304(f)(1), denied him the opportunity to compete
under merit promotion procedures for a vacant position for which the agency accepted
applications from individuals outside its own workforce. Becker v. Department of
Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010). 5 | Trujillo_Samuel_DC-3443-22-0374-I-1__Remand_Order.pdf | 2024-04-03 | SAMUEL TRUJILLO v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3443-22-0374-I-1, April 3, 2024 | DC-3443-22-0374-I-1 | NP |
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